# Amicus Curiae Brief — Grutter v. Bollinger

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0591%3A102

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2003
- **Citation:** 539 U.S. 306

## Text

|

Nos. 02-241 & 02-516

“

IN THE

Supreme Court of the United States

>< >s>

BARBARA GRUTTER,

Petitioner.
—- Vi -—
LEE BOLLINGER, et al., 7
Respondents.
JENNIFER GRATZ and PATRICK HAMACHER,
Petitioners,
—_—V—
LEE BOLLINGER, et al.,
Respondents.

ON WRITS OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF OF NOW LEGAL DEFENSE AND EDUCATION FUND,
FEMINIST MAJORITY FOUNDATION, INTERNATIONAL
HUMAN RIGHTS LAW GROUP, AND THE ALLARD K. LOWEN-
STEIN INTERNATIONAL HUMAN RIGHTS CLINIC, YALE LAW
SCHOOL, AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

Of Counsel: Jennifer K. Brown
Martha F. Davis Wendy R. Weiser*

Associate Professor of Law NOW LEGAL DEFENSE

NORTHEASTERN UNIVERSITY AND EDUCATION FUND
SCHOOL OF LAW 395 Hudson Street

400 Huntington Avenue New York, New York 10014

Boston, Massachusetts 02115 (212) 925-6635
(617) 373-8921 *Counsel of Record

PIBEST AVAILABLE COPY mes

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................ssessseee0s ill

STATEMENTS OF INTEREST OF AMICI

1. COMPARATIVE AND
INTERNATIONAL LAW ARE
RELEVANT TO THE ISSUES
BEFORE THE COURT ..........cccessceeseeeees 3

II. HIGH COURTS OF OTHER
NATIONS HAVE UPHELD
AFFIRMATIVE ACTION
MEASURES UNDER
COMPARABLE
CIRCUMSTANCES. ....cccccccccccescescsscossees 10

Ill. UNITED STATES TREATY
LAW PERMITS AFFIRMATIVE
ACTION AND, UNDER
CERTAIN CIRCUMSTANCES,
IMPOSES AFFIRMATIVE DUTIES
TO ASSURE EQUALITY .............c0ce00 14

A. The ICCPR Supports
Affirmative Action

Programs Such As The
Admissions Policies At

CONCLUSION

il

CERD Endorses Affirmative

Action Programs ..........-+++++ 17

Self-Execution Is

Not An Issue Where,

As Here, The Treaty

Provisions Are Cited

As Aids To Interpretation ..19
20

ili
TABLE OF AUTHORITIES
FEDERAL CASES
Adarand Constructors, Inc. v. Pena, 515 U.S.

ER 3
Atkins v. Virginia,

a 4,9
D'Oench, Duhme & Co., Inc.

v. FDIC, 315 U.S. 447 (1942).......ccccccceecceees 6
Enmund v. Florida,

ESB U.S. TE2 (1962) ....220.0-cerrevscscecveveveceececeees 5
Gratz v. Bollinger, 122 F. Supp. 2d 811 (E.D.

EE 4
Grutter v. Bollinger, 288 F.3d 732 (6th Cir.

EEE 4
Knight v. Florida, 528 U.S. 990 (1999).............. a
Miranda v. Arizona, 384 U.S. 436 (1966)........... 5
urray v. Schooner Charming Betsy, 6 U.S.

(2 Cramch) 64 (1804) ...............ccccecsccesseeeeeeees 4
New York v. Quarles, 467 U.S. 649 (1984)......... 5
New York v. United States, 326 U.S. 572

Ee 5
Nixon v. Shrink Missouri Government PAC,

rT Ms

iV

Omaya v. California,

SB US. Ga Ca cescsnssernsenssnsnssensenesscsess 15
Patterson v. Texas, 123 S. Ct. 24 (2002) ............ 9
Printz v. United States,

521 U.S. 89% ‘1997)......... secsessesenssessesesesoes 6,9
Regents of the University of California v.

Bakke, 438 U.S. 265 (1978) ...........00-++ 11,12

Talbot v. Seeman, 5 U.S. (1 Cranch) 1 (1801)....4

Thompson v. Oklahoma,
GBF ULB. SES CRB ccnsnssscsssscsssscsssssessssesee 5,9

United States v. Then, 56 F.3d 464 (2d Cir.

ee RR SET I 4,5

INTERNATIONAL CASES

Canadian Nat'l Ry. Co. v. Canada, [1987] 1
S.C.R. 1114, 1987 S.C.R. LEXIS 1136

(Can.) sususnesesssenmsnesesssesen sien SAPED
Case C-158/97, Badeck & Others, 2000

E.C.R. I-1875, [2001] 2 C.M.L.R. 6,

2000 All ER (EC) 289 (E.C.J. 2000) ......... 10

Case C-409/95, Marschall v. Land Nordhein-
Westfalen, 1997 E.C.R. 1-6363, 1997 All
ER (EC) 865 (E.C.J. 1997). 10

v

Lovelace v. Ontario, {2000} 1 $.C.R. 950,
2000 Can. Sup. Ct. LEXIS 33 (Can.).......... 12

Motala & Another v. Univ. of Natal, 1995 (3)
BCLR 374 (Durban Sup. Ct.), 1995
SACLR LEXIS 256 (S. Aff.) ........cc.cccccee0-e. 13

CONSTITUTIONS, TREATIES, AND TREATY
MATERIALS

Can. Const. (Constitution Act, 1982)
Schedule B, Pt. I (Canadian Charter of

Rights and Freedoms), § 15(2).................-+. 12
Committee on the Elimination of Racial

Discrimination: Addendum by Israel,

U.N. Doc. CERD/C/294

I 13

Convention on the Elimination of All Forms
of Racial Discrimination, opened for
signature Mar. 7, 1966, 660 U.N.T.S.
ee 14, 17, 18

International Covenant on Civil and Political
Rights, opened for
signature Dec. 19, 1966, 999 U.N.T.S.
171 : 14,15

S. Afr. Const. Preamble; ch. 2, § 9(2) ceo. 13

vi

United Nations, Compilation of General
Comments and General
Recommendations Adopted by Human
Rights Treaty Bodies, General Comment
SY), 16, 17

Ute F 8 > yy 14

U.S. Reservations, Understanding,
Declarations, and Proviso, CERD, 140
Cong. Rec. $7634-02 (daily ed. June 24,
DOOD cccecscssscescssssusssnecsscssenssessnsssessetmsesesennese 15

Declarations, and Proviso, ICCPR, 138
Cong, Rec. $4781-01 (daily ed. April 2,
Sell dcsesceusbieiasibidlicadiaialichittisciibineis 1s

United States: Senate Committee On Foreign
Relations Report On The International
Covenant On Civil And Political Rights,

31 LL.M. 645 (May 1992) ......-.-0-c0-00- 16, 17

BOOKS AND ARTICLES

Martha F. Davis, Jnternational Human Rights
and United States Law: Predictions of a
Courtwatcher, 64 Alb. L. Rev. 417
ee 7

Connie de la Vega, Civil Rights During the
1990s: New Treaty Law Could Help
Immensely, 65 U. Cin. L. Rev. 423
(1997) 14, 19

vil

Joan Fitzpatrick, The Preemptive and
Interpretive Force of International
Human Rights Law in State Courts, 90
Proc. Am. Soc. Int’] L. 259 (1996) ............. 19

Ruth Bader Ginsburg & Deborah Jones
Menrnitt, Fifty-First Cardozo Memorial
Lecture—Affirmative Action: An
International Human Rights
Dialogue, 21 Cardozo L. Rev. 253
eel ersecnnenenesemennnenenmmtennemmnndesel 8,11, 13

Louis Henkin et al., Human Rights (1999)....... 19

Oliver Wendell Holmes, Jr., The Common

Mamallites (1998) occscscceceeceeeenennennn..... 13

Claire L’Heureux-Dube, The Importance of
Dialogue: Globalization and the
International Impact of the Rehnquist
Court, 34 Tulsa L.J. 15 (1998) .000.....cccceseeees 7

Marian Nash, U.S. Practice: Contemporary
Practice of the United States Relating to
International Law, 88 Am. J. Int’! L. 719

Sandra Day O’Connor, Broadening Our
Horizons: Why American Lawyers Must
Learn About Foreign Law, 45 Fed.

Lawyer 20 (1998) - 5,7

Viil

Sandra Day O’Connor, Federalism of Free
Nations, reprinted in International Law
Decisions in National Courts

(Thomas M. Franck & Gregory H. Fox

9, RS ee

Sandra Day O’Connor, Keynote Address
Before the Ninety-Sixth Annual Meeting
of the American Society of International
Law, 96 Am. Soc’y Int’! L. Proc. 348

Jordan J. Paust, Jnternational Law

as Law of the United States (1996) ............

Jordan J. Paust, Race-Based Affirmative
Action and International Law,
18 Mich. J. Int’! L. 659 |

Past, Present and Future—A German-
American Symposium (Paul Kirchhof &

Donald P. Kommers eds., 1993) .......--+--++-

OTHER AUTHORITIES

Press Release, New York University,
European Court Members and Four U.S.
Supreme Court Justices to Discuss

Current European and U.S. Constitutional

Issues (Mar. 27, 2000), available at

wo

STATEMENTS OF INTEREST OF AMICI CURIAE'

Amicus curiae NOW Legal Defense and Education
Fund (“NOW Legal Defense”’) is a leading national non-profit
civil rights organization that has used the power of the law to
define and defend women’s rights for thirty years. It has
participated as counsel and as amicus curiae in numerous
cases in support of affirmative action. NOW Legal Defense
is interested in these cases because of the positive impact
affirmative action programs have in promoting equality and
eliminating barriers for women, particularly for women of
color, and for racial minorities.

Amicus curiae the Feminist Majority Foundation
(“FMF”) is a non-profit organization that promotes women’s
economic, social and political equality. FMF is dedicated to
achieving civil rights for all people, including affirmative
action programs for women and people of color. FMF
strongly supports the affirmative action programs challenged
in these cases and the need for diversity in higher education.

Amicus curiae the International Human Rights Law
Group (the “Law Group”) is a non-profit organization of
human nights and legal professionals engaged in human rights
advocacy, litigation, and training around the world. Founded
in the District of Columbia in 1978, the Law Group works to
empower advocates to expand the scope of human rights
protection for men and women and to promote broad
participation in creating more effective human rights
standards and procedures at the national, regional, and
international level. The Law Group has represented
individuals and organizations before U.S. and international

| The parties’ letters consenting to the filing of amicus curiae briefs have

been filed with the Clerk of the Court. Counsel for the amici curiae
authored this brief in its entirety. No person or entity other than amici and
their counsel made a monetary contribution to the preparation of this brief.

oo 2

tribunals and has appeared as amicus curiae in a number of
U.S. cases. The Law Group also maintains consultative status
with the Economic and Social Council of the United Nations.
Beginning in the 1990s, a central focus of the Law Group’s
work has been to promote the use of international human
rights law and standards in efforts to combat racial
discrimination. The Law Group joins this brief to emphasize
the obligation of the United States to provide remedies for
racial discrimination consistent with its obligations under
international treaty law, particularly the International
Covenant on Civil and Political Rights and the International
Convention on the Elimination of All Forms of Racial
Discrimination, as well as international customary law.

Amicus curiae the Allard K. Lowenstein International
Human Rights Clinic (the “Clinic”) is a Yale Law School
program that gives students first-hand experience in human
rights advocacy. The Clinic undertakes numerous litigation
and research projects on behalf of human rights organizations
and individual victims of human rights abuses. Fhe Clinic’s
work is based on the human rights standards contained in
international customary and conventional law, at the core of
which is the prohibition against discrimination. Since the
Clinic began more than ten years ago, its students have
worked on a number of lawsuits and other projects designed
to combat racial, gender, ethnic and other kinds of
discrimination. In recent years, the Clinic has focused
increasing attention on efforts to ensure respect for
international human rights standards in the United States.

SUMMARY OF ARGUMENT

Comparative and international law ~~ y the lower
courts’ decisions upholding the University of Michigan’s
affirmative action programs, and are relevant for at least two
reasons to this Court’s consideration of the constitutionality
of affirmative action programs. First, our legal tradition has
long embraced looking to foreign and international precedent

3

and practice to help solve our legal questions. There is
practical value in examining how other constitutional courts
have analyzed similar issues. Second, in an era of
globalization, this Court maintains its intellectual leadership
in the human rights field by acknowledging the international
context in which its decisions resonate.

The constitutional courts of states as diverse as
Canada, India and South Africa, as well as the European
Union, have all confronted challenges to affirmative action
policies in recent years. These courts have uniformly upheld
such policies, including policies similar to those at issue here,
as consistent with their constitutional guarantees of equal
protection. As members of this Court have previously
recognized, wisdom gleaned from the opinions of colleagues
in foreign jurisdictions—particularly those with legal
traditions and political cultures similar to ours—can assist this
Court in reaching sound conclusions under domestic law.

Furthermore, the United States is party to international
treaties that not only permit race-based affirmative action
programs, but that also may require the implementation of
such programs when failure to do so would perpetuate
wrongful discrimination. These treaties are valuable sources
of interpretive guidance to this Court when considering the
validity of the affirmative action programs at issue here.

ARGUMENT

I. COMPARATIVE AND INTERNATIONAL LAW
ARE RELEVANT TO THE ISSUES BEFORE
THE COURT

It is undisputed that the University of Michigan and its
law school (together, “the University”) use race as one of
many factors in their admissions decisions, and that this use
must be narrowly tailored to serve a compelling governmental
interest. See Adarand Constructors, Inc. v. Pena, 515 U.S.
200, 227 (1995). Here, Respondents argue that the University

4

justifiably uses race as an admissions factor to ensure
diversity in higher education, and Intervenors argue that the
University’s policies are justified as a measure to remedy past
discrimination. See Grutter v. Bollinger, 288 F.3d 732, 735
(6th Cir. 2002); Gratz v. Bollinger, 122 F. Supp. 2d 811, 816
(E.D. Mich. 2000). The record amply supports the force of
these arguments. In addition, amici curiae urge this Court to
follow the trend of American jurists, including members of
this Court, to look to international and foreign law to inform
their decisions regarding domestic legal issues.

From its earliest days, this Court has recognized that
the laws of the United States should be construed to be
consistent with international law whenever possible. See,
e.g., Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch)
64, 118 (1804) (“an act of Congress ought never to be
construed to violate the law of nations if any other possible
construction remains”); Talbot v. Seeman, 5 U.S. (1 Cranch)
1, 43 (1801) (“the laws of the United States ought not, if it be
avoidable, so to be construed as to infract the common
principles and usages of nations”); see generally Sandra Day
O’Connor, Federalism of Free Nations, reprinted in
International Law Decisions in National Courts 13, 15-16
(Thomas M. Franck & Gregory H. Fox eds., 1996).

In recent years, the Court has continued to recognize
the importance of looking to international and comparative
law for interpretive guidance in areas of constitutional law.
For example, last year in Atkins v. Virginia, 536 U.S. 340
(2002) (Stevens, J., joined by O’Connor, Kennedy, Souter,
Ginsburg, and Breyer, JJ.), this Court examined the opinions
of “the world community” to support its conclusion that
execution of persons with mental retardation would offend the
standards of decency required by the Eighth Amendment. Jd.
at 347 n.21. Similarly, in Washington v. Glucksberg, 521
U.S. 702 (1997) (Rehnquist, C.J., joined by O’Connor, Scalia,
Kennedy, and Thomas, JJ.), in ruling that the State of
Washington’s statute prohibiting assisted suicide was not

5

invalid on its face under the Due Process Clause of the
Fourteenth Amendment, the Court noted that Canada, Great
Britain, New Zealand, and Australia, like the State of
Washington, have rejected efforts to establish a fundamental
night to assisted suicide, while Colombia has legalized
voluntary euthanasia for terminally ill people. Jd at 718
n.16.

Two broad rationales justify the use of international
and comparative law perspectives to help resolve domestic
legal issues. First, there is a practical value to drawing upon
international law and the experiences of other nations as aids
to interpretation. As Justice Holmes wrote, “the life of the
law has not been logic, it has been experience.” Oliver
Wendell Holmes, Jr., The Common Law 1 (1881). “Other
legal systems,” Justice O’Connor has recognized, “continue
to innovate, to experiment, and to find new solutions to the
new legal problems that arise each day, from which we can
learn and benefit.” Sandra Day O’Connor, Broadening Our
Horizons: Why American Lawyers Must Learn About Foreign
Law, 45 Fed. Lawyer 20 (1998). The possibilities for such
learning are particularly great when those other legal systems
“have struggled with the same basic constitutional questions
as we have: equal protection, due process, the rule of law in
constitutional democracies.” Jd.; see also New York v.
Quarles, 467 U.S. 649, 672-74 (1984) (O’Connor, J.,

* See also Thompson v. Oklahoma, 487 U.S. 815, 830 (1988) (looking to
international standards regarding execution of persons under sixteen years
old); Enmund v. Florida, 458 U.S. 782, 796-97 n.22 (1982) (noting
relevance of “the climate of international opinion concerning the
acceptability of a particular punishment” to Eighth Amendment
determination and looking to felony murder laws in England, India,
Canada, and other Commonwealth countries) (citation omitted); Miranda
v. Arizona, 384 U.S. 436, 488-90, 521-22 (1966) (considering law
enforcement “experience in . . . other countries,” including England,
Scotland, and India, in interpreting Fifth Amendment); New York v.
United States, 326 U.S. 572, 584 n.5 (1946) (looking to constitutional
experiences of Canada, Australia, and Brazil relating to intergovernmental
taxation to help decide scope of federal taxation power).

6

concurring) (supporting application of experience of other
countries that addressed similar issues to determine scope of
Fifth Amendment exclusionary rule); United States v. Then,
56 F.3d 464, 468-69 (2d Cir. 1995) (Calabresi, J., concurring)
(noting that German and Italian constitutions “unmistakably
draw their origin and inspiration from American
constitutional theory and practice” and that, as a result, “how
[those countries] have dealt with problems analogous to ours
can be very useful to us when we face difficult constitutional
issues”).

International and foreign law rulings on constitutional
issues facing the Court “cast an empirical light on the
consequences of different solutions to a common legal
problem.” Printz v. United States, 521 U.S. 898, 977 (1997)
(Breyer, J., dissenting). In this regard, the use of international
and comparative law is similar to the use of state law by
federal courts for interpretive guidance when giving content
to federal law. In such circumstances, state law does not
apply of its own force, but instead supplies a useful source of
persuasive authority. See generally D’Oench, Duhme & Co.,
Inc. v. FDIC, 315 U.S. 447, 465-75 (1942) (Jackson, )
concurring) (describing federal courts’ practice of looking to
state common law to interpret federal law). Similarly,

conclusions reached by other countries and by
the international community should at times
constitute persuasive authority in American
courts. . . . While ultimately we must bear
responsibility for interpreting our own laws,
there is much to learn from other distinguished
jurists who have given thought to the same
difficult issues we face here.

Sandra Day O’Connor, Keynote Address Before the Ninety-
Sixth Annual Meeting of the American Society of
International Law, 96 Am. Soc’y Int’l L. Proc. 348, 350
(2002).

7

Second, acknowledging the international context of
this Court’s decisions helps to ensure the continued
intellectual leadership of the United States in human rights
issues and to maintain international respect for our courts in
an era of globalization. See Martha F. Davis, International
Human Rights and United States Law: Predictions of a
Courtwatcher, 64 Alb. L. Rev. 417, 421-28 (2000) (arguing
that in the twenty-first century, judicial legitimacy requires
that courts acknowledge international context of decisions).
Throughout its history, decisions rendered by this Court have
served as a model for countries around the world. As Justice
L’Heureux-Dube of the Supreme Court of Canada has
explained, high courts in other countries have historically
looked to the jurisprudence of this Court for guidance, and the
United States government has been an international leader in
proclaiming the importance of international law and the
promotion of human rights. See Claire L’Heureux-Dube, The
Importance of Dialogue: Globalization and the International
Impact of the Rehnquist Court, 34 Tulsa L.J. 15, 16-17 (1998)
(acknowledging United States’ past judicial influence “{i]n
the fields of human rights and constitutional principles”). As
Justice O’Connor has argued, we fail to “broaden{ ] our
horizons” at our peril:

The vibrancy of our common law legal culture
has stemmed, in large part, from its dynamism,
from its ability to adapt over time. Our
flexibility, our ability to borrow ideas from
other legal systems, is what will enable us to
remain progressive with systems that are able
to cope with a rapidly shrinking world.

O’Connor, Broadening Our Horizons, supra, at 21. Increased
engagement with the constitutional courts of other countries
can help to ensure the continued leadership role of American
courts and the United States more generally.

Both of these rationales for considering international
and comparative perspectives are relevant to the

8

constitutionality of the programs at issue in these cases. The
United States is not alone among nations in using affirmative
action to promote diversity and to remedy the current
practices and lingering effects of discrimination against
particular social groups; nor has the United States been alone
in requiring that such programs be reconciled with formal
guarantees of equality before the law. Moreover, this Court’s
pronouncements on equality traditionally have carried
tremendous weight in international human rights law and the
constitutional law of other countries, and that prestige can
only be enhanced by considering how other nations have
interpreted the equality norms they share with the United
States.

Justice Ginsburg has directly addressed the relevance
of international and comparative law to affirmative action:

[C]omparative analysis emphatically is
relevant to the task of interpreting constitutions
and enforcing human rights. We are the losers
if we neglect what others can tell us about
endeavors to eradicate bias against women,
minorities, and other disadvantaged groups.

Ruth Bader Ginsburg & Deborah Jones Merritt, Fifty-First
Cardozo Memorial Lecture—Affirmative Action: An
International Human Rights Dialogue, 21 Cardozo L. Rev.
253, 282 (1999).

Indeed, a majority of the Justices of this Court has
supported consideration by United States courts of
international legal materials when expounding federal law.
Chief Justice Rehnquist has called on courts to examine
international precedents, noting, “it is time that the United
States courts begin looking to the decisions of other
constitutional courts to aid in their own deliberative process.”
William Rehnquist, Constitutional Courts—Comparative
Remarks (1989), reprinted in Germany and its Basic Law:
Past, Present and Future—A German-American Symposium

9

411, 412 (Paul Kirchhof & Donald P. Kommers eds., 1993).
Similarly, Justice O’Connor, a proponent of an international
perspective, commented in 1998, after an initial meeting with
members of the European Court of Justice, that “{iJn the next
century, we are going to want to draw upon judgments from
other jurisdictions,” including the decisions of the European
Court. Press Release, New York University, European Court
Members and Four U.S. Supreme Court Justices to Discuss
Current European and U.S. Constitutional Issues, at 2 (Mar.
27, 2000), available at www.nyu.edu/publicaffairs/
newsreleases/b EUROP.shtml.

Justices Breyer and Stevens also have demonstrated
interest in both comparative and international law materials as
aids to constitutional interpretation. See, e.g., Atkins, 536
U.S. at 347 n.21 (Stevens, J.); Patterson v. Texas, 123 S. Ct.
24 (2002) (Stevens, J., dissenting from denial of certiorari)
(citing apparent international consensus against the execution
of a capital sentence imposed upon a juvenile to urge Court to
revisit issue of its constitutionality); Nixon v. Shrink Missouri
Gov't PAC, 528 U.S. 377, 403 (2000) (Breyer, J., concurring)
(noting that other nations’ approaches to campaign finance
are consistent with Supreme Court majority’s approach);
Knight v. Florida, 528 U.S. 990, 995-96 (1999) (Breyer, J.,
dissenting from denial of certiorari) (citing Universal

- Declaration of Human Rights and case law of Canada, India,

Great Britain and Zimbabwe to support view that lengthy
delay in administering lawful death penalty may be unusually
and impermissibly cruel); Printz v. United States, 521 U.S.
898, 976-77 (1997) (Breyer, J., dissenting) (discussing
experiences of federal systems in Switzerland, Germany, and
European Union as aids to deciding question of U.S.
federalism); Thompson v. Oklahoma, 487 U.S. 815, 830
(1988) (Stevens, J.) (looking to opinions of “other nations that
share our Anglo-American heritage” and “leading members
of the Western European community” as aids to deciding
Eighth Amendment question).

10

As elaborated below, courts and jurists around the
world have grappled with issues of affirmative action, often in
contexts analogous to those presented by the record in these
cases. Wisdom gleaned from the opinions of colleagues n.
foreign jurisdictions can assist this Court in reaching sound
conclusions under domestic law.

ll. HIGH COURTS OF OTHER NATIONS HAVE
UPHELD AFFIRMATIVE ACTION MEASURES
UNDER COMPARABLE CIRCUMSTANCES

Numerous countries have examined the issue of
affirmative action under their own laws and have upheld
programs benefiting minority populations who suffered
discrimination. Most notably, the Court of Justice of the
European Communities has endorsed affirmative action
programs that use gender as a factor in employment decisions
in order to remedy gender discrimination in employment. In
two recent cases, the Court of Justice upheld national
measures giving priority to women for promotion to public
service positions in which women were underrepresented.
See Case C-158/97, Badeck & Others, 2000 E.C.R. 1-1875,
[2001] 2 C.M.L.R. 6, 2000 All ER (EC) 289 (E.C.J. 2000)
(available on Westlaw); Case C-409/95, Marschall v. Land
Nordhein-Westfalen, 1997 E.C.R. 1-6363, 1997 All ER (EC)
865 (E.C.J. 1997) (available on Westlaw). Critical to the
opinions in both cases was the fact that—as with the
admissions processes at issue here—women were not given
automatic and unconditional priority in obtaining promotions
when there were equally qualified male candidates available;
rather, all of the candidates—male and female—were
assessed individually according to objective criteria. Badeck,
2000 E.C.R. at 1918-19, 1923; Marschall, 1997 E.C.R. at
6393.

In Marschall, a German national rule permitted giving
qualified women priority for promotions to positions where
women were underrepresented, unless there was a specific

1]

reason to favor a male candidate. Marschall, 1997 E.C.R. at
6366. The rule was promulgated to promote equality of
opportunity between men and women and to counteract the
discrimination that had in the past led to a disproportionate
number of higher positions being awarded to male applicants.
Id. The court held that the affirmative action policy was
acceptable. because the candidates were objectively assessed;
indeed, the rule’s “saving clause” specifically allowed the
selection of a male candidate over a female where
nondiscriminatory criteria tilted the balance in his favor. /d.
at 6392-93.

Correspondingly, in Badeck, the Court of Justice was
asked to decide whether the “positive action” program to
promote equality between men and women mandated by the
Hesse Equal Rights Law complied with European
Community law. Badeck, 2000 E.C.R. at 1877, 1878.
Building upon its earlier judgment in Marschall, the court
again concluded it was lawful for women to be given priority
over equally qualified males for promotion in public and
private sector jobs, provided that the employer retained the
flexibility to select the most suitable candidate, with gender as
simply one criterion in the overall evaluation of the
candidates. Jd. at 1891-92. Because the program did not
foreclose selection of a qualified male, the court determined
that the national rule for affirmative action targeting women
for advancement in the areas of public employment, academic
service, and training programs comported with Community
law. Id. at 1923, 1926-27.

Significantly, in both Badeck and Marschall, gender
was used as a plus factor for promotion. Cf Regents of the
Univ. of Calif. v. Bakke, 438 U.S. 265, 318 (1978); see also
Ginsburg & Merritt, supra, at 279 (acknowledging that race
and gender may be plus factors in employment, promotion, or
educational admissions). The discretion accorded by the
German legislation is comparable to that permitted by the
University’s admissions programs where race and ethnicity

12

are included as additional considerations to promote the goal
of diversity. Though the European Court did not explicitly
adopt the concept of “narrow tailoring” from United States
jurisprudence, it engaged in an analysis similar to that
invoked by American courts reviewing government action
under the strict scrutiny standard. Thus, the European Court
investigated whether the priority given to females in
appointments and promotions pursued a legitimate social
objective and used means that were proportionate “in relation
to the real needs of the disadvantaged group.” Badeck, 2000
E.C.R. at 1889. Applying this standard, the court concluded
that a program including such discretion was sufficiently
customized to pass muster under Community law. /d. at
1919. This analysis comports with the rationale of Bakke and
is applicable to the cases at bar.

Other countries also permit affirmative action
programs that correct systemic discrimination using targeted
measures to ameliorate the hardships suffered by certain
minority populations. For example, the Canadian Charter of
Rights and Freedoms states that its equal protection provision
“does not preclude any law, program or activity that has as its
object the amelioration of conditions of disadvantaged
individuals or groups including those that are disadvantaged
because of race.” Can. Const. (Constitution Act, 1982)
Schedule B, Pt. I (Canadian Charter of Rights and Freedoms),
§ 15(2); see generally Lovelace v. Ontario, [2000] 1 S.C.R.
950, 2000 Can. Sup. Ct. LEXIS 33, at *87-*100 (Can.)
(discussing relationship between § 15(2) and Charter’s equal
protection provision). In interpreting the Canadian Human
Rights Act, the Supreme Court of Canada upheld an
affirmative action measure imposed on the Canadian National
Railway to combat systemic discrimination in the hiring and
promotion of women. Canadian Nat'l Ry. Co. v. Canada,
[1987] 1 S.C.R. 1114, 1143-45, 1987 S.C.R. LEXIS 1136, at
*48-*52 (Can.). The special, temporary measure—which
went farther than the programs at issue here or in the

13

European cases—required hiring at least one woman for
every four nontraditional positions unti] women had achieved
greater representation in positions traditionally filled by men.
Id. at 1125-27, 1141, 1987 S.C.R. LEXIS at *17-*21, *44-
*45.

Similarly, the South African Constitution adopted in
1996 specifically acknowledges the injustices of the past and
promotes affirmative action policies to assist groups that have
been disadvantaged under prior laws. S. Afr. Const. pmbl.;
ch. 2, § 9(2). Indeed, the lack of quality education available
to African students in South Africa led the dean of a medical
school to create an affirmative action program targeted to
benefit African students. Motala & Another v. Univ. of Natal,
1995 (3) BCLR 374 (Durban Sup. Ct.), 1995 SACLR LEXIS
256 at *16-*17 (S. Afr.). An Indian woman who was denied
admission challenged the school’s program. Jd. at *13-*14.
In rejecting her claim, the court observed that, although
Indians also suffered discrimination under apartheid, the
experience for Africans was significantly worse, and
compensating for this long-standing mistreatment of African
applicants to the medical school did not represent unfair
discrimination against Indian students under the constitution.
Id. at *28.

In addition to the countries discussed above, many
other nations also take into account the need to redress the
effects of past discriminatory laws and practices. See
Committee on the Elimination of Racial Discrimination:
Addendum by Israel, at § 48, U.N. Doc. CERD/C/294/Add. 1
(1997) (describing Israel’s program of tutorial and financial
assistance provided to Ethiopian immigrants in higher
education to promote mobility and leadership); Herbert M.
Jauch, Affirmative Action in Namibia 53-148 (1998) (detailing
history of affirmative action in Namibia); Ginsburg & Merritt,
supra, at 273-81 (discussing successful affirmative action
policies in India and European Union). The legal analyses
applied by other countries to uphold successful affirmative

14

action policies for groups that, like racial minorities in the
United States, have suffered past discrimination should
inform United States courts as they address similar issues.

Ill. UNITED STATES TREATY LAW PERMITS
AFFIRMATIVE ACTION AND, UNDER
CERTAIN CIRCUMSTANCES, IMPOSES
AFFIRMATIVE DUTIES TO ASSURE
EQUALITY

The United States’s duty to comply with its
international treaty obligations further supports a finding that
the University’s interest in considering race when selecting its
students is, indeed,’ “compelling,” as the Constitution
mandates. See Connie de la Vega, Civil Rights During the
1990s: New Treaty Law Could Help Immensely, 65 U. Cin.
L. Rev. 423, 468 (1997); Jordan J. Paust, Race-Based
Affirmative Action and International Law, 18 Mich. J. Int’! L.
659, 675-76 (1997). Two treaties ratified by the United States
specifically permit race-based distinctions in order to redress
past discrimination and promote the values of diversity: the
International Covenant on Civil and Political Rights, opened
for signature December 19, 1966, art. 2(2), 999 U.N.T.S. 171,
173 (hereinafter “ICCPR”); and the Convention on the
Elimination of All Forms of Racial Discrimination, opened
for signature March 7, 1966, art. 2(2), 660 U.N.T.S. 195, 218
(hereinafter “CERD”). The United States has committed
itself, by becoming a party to the treaties, to take the
affirmative steps necessary to ensure that the equal enjoyment
of rights is guaranteed to all racial groups and their individual
members. Indeed, those treaties are now part of the “supreme
Law of the Land.” U.S. Const. art. VI, cl. 2. What is more,
the Senate’s ratifications of these treaties acknowledged that,
in our federal system, implementation of their principles is a
responsibility of state and local government, as well.?

> The United States Senate ratified the ICCPR with the express
understanding that it “shall be implemented by the Federal Government to

15

Accordingly, the ICCPR and CERD offer relevant, legitimate
guidance to this Court in evaluating whether the University’s
affirmative action programs further compelling interests in
promoting a diverse intellectual community and remedying
past discrimination in admissions. Cf. Omaya v. California,
332 U.S. 633, 649-50 (1948) (Black, J., concurring) (U.S.
pledge in U.N. Charter to “promote . . . universal respect for,
and observance of, human rights and fundamental freedoms
for all without distinction as to race, sex, language, or
religion” is additional reason that California law
impermissibly interferes with federal policy) (citation
omitted); id. at 673 (Murphy, J., concurring) (“Its
inconsistency with the Charter . . . is but one more reason
why the statute should be condemned.”).

A. The ICCPR Supports Affirmative Action

Programs Such As The Admissions Policies At
Issue Here

States Parties to the ICCPR are bound to take
“necessary steps” to effectuate rights guaranteed by the treaty.
ICCPR, art. 2(2), 999 U.N.T.S. at 173. Article 26 of the
ICCPR provides that “[a]ll persons are equal before the law”
and that States Parties “shall . . . guarantee to all persons
equal and effective protection against discrimination on any
ground such as race.” Jd. at 179. Moreover, the Human
Rights Committee created by the treaty has provided
authoritative recognition that “not every differentiation of
treatment will constitute discrimination, if the criteria for such

the extent that it exercises legislative and judicial jurisdiction over the
matters contained therein, and otherwise by the state and local
governments,” and that “the Federal Government shall take measures
appropriate to the Federal system to the end that competent authorities of
the state or local governments may take appropriate measures for the
fulfillment of the Covenant.” U.S. Reservations, Understandings,
Declarations, and Proviso, ICCPR, 138 Cong. Rec. $4781-01 (daily ed.
April 2, 1992); see also U.S. Reservations, Understanding, Declarations,
and Proviso, CERD, 140 Cong. Rec. $7634-02 (daily ed. June 24, 1994).

16

differentiation are reasonable and objective and if the aim is
to achieve a purpose which is legitimate under the Covenant.”
United Nations, Compilation of General Comments and
General Recommendations Adopted by Human Rights Treaty
Bodies, General Comment 18, para. 13, at 28 (1994)
(hereinafter “General Comment 18”). According to the
Committee:

[T]he principle of equality sometimes requires

States parties to take affirmative action in

order to diminish or eliminate conditions

which cause or help to _ perpetuate

discrimination prohibited by the Covenant. .. .

Such action may involve granting for a time . .

. certain preferential treatment in specific

matters ....

Id. para. 10.

The United States affirmed the Human Rights
Committee’s construction when it ratified the ICCPR. The
formal “understanding” adopted at that time states in pertinent
part: |

The United States understands distinctions

based upon race . . ——as those terms are used

in Article 2, paragraph 1 and Article 26—to be

permitted when such distinctions are, at a

minimum, rationally related to a legitimate

governmental objective.

United States: Senate Committee On Foreign Relations
Report On The International Covenant On Civil And Political
Rights, 31 1.L.M. 645, 655 (May 1992) (earlier draft, adopted
later by the Senate and President).

The Report of the Senate Committee on Foreign
Relations, addressing the ICCPR, also noted that the Human
Rights Committee created by the Covenant had interpreted
the treaty to allow certain forms of “differentiation”:

17

In interpreting the relevant Covenant
provisions, the Human Rights Committee has
observed that not all differentiation in
treatment constitutes discrimination, if the
criteria for such differentiation are reasonable
and objective and if the aim is to achieve a
purpose which is legitimate under the
Covenant.

Id.; see also Paust, Race-Based Affirmative Action, supra, at
662-63 n.12.

In sum, the ICCPR has been construed—by the United
Nations Human Rights Committee and the United States
Senate—squarely to permit the purpose here, i.e., affirmative
action. Indeed, the Human Rights Committee has indicated
that affirmative action may be “require[d]” when States
Parties’ failure to take .such affirmative steps would
perpetuate discrimination. General Comment 18, supra, at

para. 10.

B. CERD Endorses Affirmative Action Programs

CERD by its terms also authorizes affirmative action
programs to redress past wrongs. While the treaty’s general
provisions outlaw all forms of racial discrimination, see
CERD, arts. 2-5, 660 U.N.T.S. at 216-22, certain “special
measures” are expressly excluded from the definition of
proscribed racial discrimination. As the Convention states in
Article 1, paragraph 4:

Special measures taken for the sole purpose of
securing adequate advancement of certain
racial or ethnic groups or individuals requiring
such protection as may be necessary in order to
ensure such groups or individuals equal
enjoyment or exercise of human rights and
fundamental freedoms shall not be deemed
racial discrimination, provided, however, that

18

such measures do not, as a consequence, lead
to the maintenance of separate nghts for
different racial groups and that they shall not
be continued after the objectives for which
they were taken have been achieved.

CERD, art. 1(4), 660 U.N.T.S. at 216.

Again, when it ratified CERD, the United States
expressly recognized that it permits race to be taken into
account when necessary to secure equality. In his formal
statement to Chairman Claiborne Pell of the Senate Foreign
Relations Committee concerning ratification of the treaty,
Conrad Harper, the Legal Adviser to the Secretary of State,
noted: “Article 1(4) explicitly exempts ‘special measures’
taken for the sole purpose of securing adequate advancement
of certain racial or ethnic groups or individuals requiring such
protection.” Marian Nash, U.S. Practice: Contemporary
Practice of the United States Relating to International Law,
88 Am. J. Int’l L. 719, 722 (1994). Significantly, Article 2 of
CERD also imposes on States Parties the duty to take special
and concrete measures of affirmative action “when the
circumstances so warrant.” CERD, art. 2(2), 660 U.N.T-S. at
218; see also Paust, Race-Based Affirmative Action, supra, at
666-67. In ratifying CERD on November 20, 1994, the
United States consented to all of its provisions.

Thus, carefully crafted race-based affirmative action
programs to ensure equal enjoyment of rights by all racial
groups are plainly permissible, and in some circumstances
may be required, under both the ICCPR and CERD.

al Self-Execution Is Not An Issue Where, As Here,
The Treaty Provisions Are Cited As Aids To

Interpretation

The United States’s instruments of ratification for
both the ICCPR and CERD contain declarations that many

(but not all) of the articles are “non-self-executing.” Louis

19

Henkin et al., Human Rights 784-86, 1043-44 (1999). The
propriety of such declarations need not be resolved here,
because the amici do not directly draw upon the treaty
provisions as the foundation for their legal claims. Rather,
the ICCPR and CERD are cited here as additional interpretive
support for concluding that the University’s admissions
policies do not offend the United States Constitution. Such
an informative and illustrative role for international law has
been widely accepted by members of this Court. See Point I,
supra. Even generally non-self-executing treaties can be used
indirectly as aids for interpretation of other laws, defensively
in civil or criminal contexts, or—as here—to support a claim
that the state interest in race-based affirmative action is,
indeed, “compelling.” See, e.g., Jordan J. Paust, Jnternational
Law as Law of the United States 62-64, 68, 97-98, 134-35,
370, 377-78 n.4, 384 (1996); de la Veg>, supra, at 457 n.206,
460, 467-68, 470; Joan Fitzpatrick, ‘he Preemptive and
Interpretive Force of International Human Rights Law in
State Courts, 90 Proc. Am. Soc. Int’] L. 259, 262, 264 (1996);
Paust, Race-Based Affirmative Action, supra, at 671 n.45.
Thus, the Court may appropriately consider these treaties
here.

20

CONCLUSION

For the foregoing reasons, as well as those stated in
the briefs for Respondents, the decisions of the courts below
should be affirmed.

Respectfully submitted,
Of counsel: Jennifer K. Brown
Martha F. Davis Wendy R. Weiser*

Associate Professor of Law NOW Legal Defense
Northeastern University and Education Fund

School of Law 395 Hudson Street
400 Huntington Avenue New York, N.Y. 10014
Boston, Mass. 02115 (212) 925-6635

(617) 373-8921
* Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0591%3A102. Public record. Not legal advice.