# Amicus Curiae Brief — Meredith v. Jefferson County Board of Education

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0239%3A35

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006
- **Citation:** 548 U.S. 938

## Text

Yes * FILED

(») OCT 10 2006
No. 05-915

LERK
fe COURT, U.S.
In the
Supreme Court of the Hnited States
CRYSTAL D. MEREDITH, CUSTODIAL PARENT AND

NEXT FRIEND OF JOSHUA RYAN MCDONALD,
Petitioner,

V.

JEFFERSON COUNTY BOARD OF EDUCATION, E7 AL.,
Respondents.

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

BRIEF OF HUMAN RIGHTS ADVOCACY GROUPS
AND INTERNATIONAL LAW PROFESSORS AS >
AMICUS CURIAE IN SUPPORT OF RESPONDENTS

CONSTANCE DELA VEGA DAVID WEISSBRODT*

Frank C. Newman Regents Professor and

International Human Rights Fredrikson & Byron
Law Clinic, Professor of Law,

University of San Francisco University of Minnesota
School of Law Law School

2130 Fulton Street 229 — 19" Avenue South

San Francisco, CA 94117 Minneapolis, MN 55455

(415) 422-2296 (612) 625-5027

*Counsel of Record

2006 - Bachman Legal Printing @ (612) 339-9518 @ 1-800-715-3582 @ Fax (612) 337-8053

QUESTION PRESENTED

Whether a metropolitan-wide school system may
voluntarily pursue a race-conscious student assignment plan
to correct de facto segregation and promote integration?

TABLE OF CONTENTS

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BARR CP RATT III Be onc cctecescvcecscccccsccccccavconses il
INTEREST OF AMICI CURIAE.............cccosscsccesceces Vill
SUMMARY OF ARGUMENT.....................cceceeeee sees x
EE i Is ncecas duidabstuisniiationdadadienanaueinne Xl
Pe doiicubittdencnsesinancesdcchicvenpiaveiiabieudepenbanns l

I> INTERNATIONAL AND COMPARATIVE
LAW ARE RELEVANT TO THE ISSUES
RIED WOUND CAPTURE ceccccvsccspcesneccenseson l

ll. TREATY OBLIGATIONS SUPPORT A
FINDING THAT THE U.S. INTEREST IN
CONSIDERING RACE AS A FACTOR IN
SCHOOL ASSIGNMENT IS COMPELLING... 7
A. TO POCO CORIVOMMIGR. .....ccccesccccccsccccccess 7

B. The Civil and Political Covenant............... 1]
C. Affirmative Action, as Supported by
National and International Law, is Necessary to

I iscexcincevaasenniscniesssncnigvesnsniion 14

IE Mecnad cictscsnssevacediieppisiennenvenancnucaniens 16

“*

TABLE OF AUTHORITIES

U.S. Cases
Atkins v. Virginia, 536 U.S. 304 (2002).............ccceeeeee ees 4

Brown v. Board of Education, 347 U.S. 483(1954) ...... 5,10
Cal. Fed. Sav. and Loan Ass'n. v. Guerra,

ele I Cie blkit cs naticidnnkininnceenoncndnnes iX
Coker v. Georgia, 433 U.S. 584 (1977) .........cccceeeeeee eee 3
Enmund v. Florida, 458 U.S. 782 (1982) ...............ccc eee 3
First Nat'l City Bank v. Banco Para el Comercio Exterior de

Sn A ER: CI ED Sidcccdthuiaddscsecvidcsodnseceses 3
Greenham Women Against Cruise Missiles v. Reagan,

Fae Ce Ss CUSED svesccccssccevncsndensstes css 1X

Grutter v. Bollinger, 539 U.S. 306 (2003)... vili, 1x, 1, 2, 14
Hampton v. Jefferson County Bd. of Educ.,

72 F. Sapp. 24 753 (CW .D. Ry. 1999) «...ccccsccccscccecees Xil
Hampton v. Jefferson County Bd. of Educ.,

102 F. Supp. 2d 358 (W.D. Ky. 2000) ....50........0.0.. xii
Hilao v. Estate of Marcos, 103 F.3d 789 (9th Cir. 1996)... ix
Knight v. Florida, 528 U.S. 990 (1999) 0.0.0... c cece eee es 3
Lawrence v. Texas, 539 U.S. 558 (2003) ..............0005. ix, 4
McFarland vy. Jefferson County Pub. Sch.,

330 F.Supp.2d 834 (W.D.Ky. 2004) ..........0.........08 xi
McFarland ex rel. McFarland v. Jefferson County, Pub. Schs.,

ee EG ED vccchckindndcvidcsascsnacesonse Xil
Murray v. The Schooner Charming Betsy,

© UB. Co CI GO CED cccccccccccsccccscscccssccccscce: I

Newburg Area Council, Inc. v. Bd. of Educ. of Jefferson
County, 489 F.2d 925 (6th Cir. 1973) ...............0.008. xi

Parents Involved in Community Schools v. Seattle School
District NO. 1, 426 F.3d 1162 (9th Cir. 2005)....... X1-X1i

Poe v. Ullman, 367 U.S. 497 (1961) ..........ccceeeeeeeeeeeeees 3
Roper v. Simmons, 543 U.S. 551 (2005) .............4. ix, 2,3
Stanford v. Kentucky. 492 U.S. 361 (1989) ...............068. 2
Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) .........0..00. 4
Sullivan v. Kidd, 254 U.S. 433 (1921) ......... cece cece eens 15
The Paquete Habana, 175 U.S. 677 (1900) ........ onic 3
Thompson v. Oklahoma, 487 U.S. 815 (1988) .............. 2, 6
TPaD V. Dames, SSG UZ. GOTO osccccsesccccccsssossssccvenns 3
Washington v. Davis, 426 U.S. 229 (1976) .............00e eee 15
Washington v. Glucksberg, 521 U.S. 702 (1997) .............. 3
Zadvydas v. Davis, 533 U.S. 678 (2001) ........ cece cece eee 3

iV

Treaties, Statutes, and Constitutional Provisions:
a cccctetecntnnsntnnnes en . passim

Convention on the Elimination of All Forms of
Discrimination against Women, G.A. res. 34/180,
34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc.
A/34/46, entered into force Sept. 3, 1981............. o

International Convention on the Elimination of All
Forms of Racial Discrimination, G.A. res. 2106
(XX), Annex, 20 U.N. GAOR Supp. (No. 14), U.N.

Doc. A/6014 (1966), 660 U.N.T.S. 195, entered into
force Jan. 4, 1969, http://www 1.umn.edu/ humanrts/
III, ectecinsnsinicsidseiintinesnsesesensensenecssenees passim

International Covenant on Civil and Political Rights,
G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No.
16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S.
171, entered into force Mar. 23, 1976, http://www.
umn.edu/humanrts/instree/b3ccpr.him. ............... passim

Foreign Cases

L.R. et al. v. Slovakia, Communication No. 31/2003,
U.N. Doc. CERD/C/66/D/31/2003 (2005),
http://www 1.umn.edu/humanrts/country/decisions/
lead ia ani ndmneesdendeutconcesees 8

Other Authorities

Justice Stephen Breyer, The Supreme Court and the
New International Law, Keynote Address to the
American Society of International Law (Apr. 4,
2003), 97 Am. Soc’y INi’L L. Proc. 265 (2003)..... 5

Concluding Observations of the Committee on the
Elimination of Racial Discrimination, United States
of America, U.N. Doc. CERD/C/59/Misc.17/Rev.3
(2001), http://www1.umn.edu/humanrts/usdocs/
conclcomments-usa.html.................00ccccecesceceee i)

Concluding Observations of the Human Rights
Committee, United States of America, U.N. Doc.
CCPR/C/USA/CO/3 (July 28, 2006),
http://www | .umn.edu/humanrts/usdocs/hruscomme
EL wettidndenectnisaniindnscipentctinnteteebiamaninae 13

Const. S. AFR. (Act 108 of 1996) ch.2 (Bill of Rights),
9(2), http://www.info.gov.za/docusments/
constitution/1996/1996/96cons2/htm#9. ............... 10

Rodrigo Davies, Brazil Takes Affirmative Action in
Higher Education, The Guardian, August 4, 2003,
http://www.education.guardian.co.uk/higher/world
wide/story /0,9959,101215 7,00.html. ................. 10

Connie de la Vega, Civil Rights During the 1990s: New
Treaty Law Could Help Immensely, 65 CINN. L.
Fe, GD ccicciichiccsdndandandieneevencieneninmnian 11

Ruth Bader Ginsburg & Deborah Jones Merritt,
Lecture: Fifty-First Cardozo Memorial Lecture -
Affirmative Action: An International Human Rights
Dialogue, 21 CARDOZO L. REV. 253 (1999)........... 4-5, 10

Conrad K. Harper Statement to the Human Rights
Committee, USUN Press Release #49-(95), at 3
(Mar. 29, 1995), http://www.state.gov/s/I/
I i a a 13

vi

Theodor Meron, The Meaning and Reach of the
International Convention on the Elimination of All
Forms of Racial Discrimination, 79 AM. J. INT'L L.
II: cicsccpeditnicsienudinccuinidipiniiiinas ssiiahiaaiinibandiniig al 10

Lois M. Quinn and John Pawasarat, Racial Integration
in Urban America: A Block Level Analysis of
African American and White Housing Patterns,
Employment and Training Institute, School of
Continuing Education, University of Wisconsin-
Milwaukee, 18, 21 (2003), http://www.uwm.edu/
Dept/ETI/integration/integration.pdf. ................... 14

Italo Ramos, “Affirmative Action in Brazil, The Day of
the Lambs”, The Black Commentator, |ssue 172 (Feb.
23, 2006), http://www.blackcommentator.com/172/
172_guest_ramos_brazil_affirmative_action.html.... 10

Second and Third Periodic Report of the United States
of America to the UN Committee on Human Rights
Concerning the International Covenant on Civil and
Political Rights, October 21, 2005,
http://www 1 .umn.edu/humanrts/us-report-
SEITE nndiduncdundaccnendsutindiingiibehinnindiaismasnlins 12, 13

United Nations Treaty Database, http://untreaty.un.
org/ENGLISH/bible/englishinternetbible/Bible.

U.S. reservations, declarations, and understandings,
International Covenant on Civil and Political
Rights, 138 Cong. Rec. $4781-01 (daily ed., April
2, 1992), http://wwwl.umn.edu/humanrts/
dtcentosenisnntdaddusonnceibncetsens 13

Vil

INTERESTS OF AMICI CURIAE’

The University of Minnesota Human Rights Center
is a national leader in human rights advocacy and research.
The Human Rights Center was established in 1988 at the
University of Minnesota. The Center’s most visible
educational activity is its sponsorship of the University of
Minnesota Human Rights Library on the World Web, which
contains over 25,000 core human rights treaties, instruments,
and other documents in seven languages and is used by about
200,000 individuals from more than 150 nations each month.
The Human Rights Center also does applied human rights
research on such issues as corporate social responsibility, the
rights of non-citizens, contemporary forms of slavery
(including trafficking and child labor), human rights fact-
finding, the right to a fair trial, and other subjects of current
concern. Another visible project of the Human Rights Center
is its sponsorship of the Upper Midwest Human Rights
Fellowship Program and its cooperation with the Hubert
Humphrey International Fellowship Program. The Upper
Midwest Fellowship Program provides opportunities for
approximately 30 students and community leaders each year
to work with human rights organizations throughout the
world. The Humphrey Fellowship Program is sponsored by
the U.S. Department of State and provides exchange
opportunities to mid-career professionals from developing
countries.

The University of Minnesota Human Rights Center
and its leadership have submitted amici curiae briefs in
several significant U.S. cases, including Grutter v. Bollinger,

“All parties in this case have given blanket consent to
participation of amici curiae. Amici sign this memorandum on their own
behalf. No counsel for a party authored this brief in whole or in part and
no person, other than Amici, their members, or their counsel, made a
monetary contribution to the preparation or submission of this brief.

Vill

539 U.S. 306 (2003): Lawrence v. Texas, 539 U.S. 558
(2003); and Roper v. Simmons, 543 U.S. 551(2005).

Human Rights Advocates is a non-profit California
corporation founded in 1978 with national and international
membership. It has Special NGO Consultative Status in the
United Nations. It endeavors to ensure that the most basic
protections are afforded to everyone and has submitted briefs
in cases involving individual and group rights where
international standards offer assistance in interpreting both
state and federal statutes at issue. Examples of amicus briefs
that Human Rights Advocates has filed include those in the
following cases: Grutter v. Bollinger; Roper v. Simmons; Cal.
Fed. Sav. and Loan Ass'n v. Guerra, 479 U.S. 272 (1987);
Greenham Women Against Cruise Missiles v. Reagan, 755
F.2d 34 (2nd Cir. 1985); and Hilao v. Esiate of Marcos, 103
F.3d 789 (9th Cir. 1996).

The Midwest Coalition for Human Rights is a
network of 32 U.S.-based advocacy organizations and
academic centers collaborating to promote and protect human
rights both in the United States and abroad.

The Centre on Housing Rights and Evictions
(COHRE) is a worldwide organization, headquartered in
Geneva, Switzerland, but with offices in Duluth, Minnesota.

George E. Edwards is the Carl M. Gray Professor of
Law and Director of the Program in International Human
Rights Law and Faculty Director/Advisor, Master of Laws
(LLM) Track in International Human Rights Law at Indiana
University School of Law at Indianapolis, Indianapolis,
Indiana.

ix

SUMMARY OF ARGUMENT

The United States has traditionally been a leader of
the international community in protecting and promoting
human rights. U.S. leadership has, in large part, been due to
our Constitution’s power «0 promote and protect human
rights. Numerous countries have followed the U.S. lead by
citing and deferring to our human rights precepts, practices,
legislation, and jurisprudence.

As a leader in promoting human rights, the United
States should not interpret the Constitutional guarantee of
equal protection under the law as a lesser right than those
articulated in treaties whicn the U.S. has accepted or as a
lesser right than those adopted by other nations with which
the United States ordinarily compares itself. In deciding
whether schools may voluntarily take action to address de
facto segregation, international law and treaties that the
United States has accepted and helped to create may provide
guidance to this Court. The Fourteenth Amendment’s Equal
Protection guarantee, read consistently with treaties the
United States has ratified as well as other international law,
upholds the use of voluntary state action to correct de facto
segregation in public schools.

Both the International Covenant on Civil and Political

_ Rights (“Civil and Political Covenant”) and the Convention
on the Elimination of All Forms of Racial Discrimination
(“Race Convention”) permit race-based distinctions to redress
past discrimination and promote the benefits of diversity.
International Covenant on Civil and Political Rights, G.A. res.
2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N.
Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force
Mar. 23, 1976, http://www1.umn.edu/humanrts/instree/
b3ccpr.htm; International Convention on the Elimination of
All Forms of Racial Discrimination, G.A. res. 2106 (XX),
Annex, 20 U.N. GAOR Supp. (No. 14), U.N. Doc. A/6014

(1966), 660 U.N.T.S. 195, entered into force Jan. 4, 1969,
http://www 1.umn.edu/humanrts/ instree/d|cerd.htm.

By becoming a party to these treaties, the United
States is obligated to take the affirmative steps necessary to
guarantee all persons equal and effective protection against all
forms of racial discrimination. International law and
international interpretive bodies uphold and encourage state
action to address both de facto and de jure segregation. Such
action is appropriate whenever a law, regulation, or action has
the effect, not just the intent, of race-based discrimination.
Should this Court find that race-based integration measures
are unconstitutional, public schools will be encouraged to re-
segregate. Such re-segregation will not only violate the Equal
Protection Clause, but it will also have the effect of
jeopardizing the reputation of the United States as a human
rights leader in the world community.

SUMMARY OF FACTS

Jefferson County, Kentucky, has a long history of de
jure and de facto segregation in its neighborhoods and
schools. In response to litigation over Jefferson County’s
segregated school system, the U.S. Court of Appeals for the
Sixth Circuit directed district court Judge James Gordon to
devise a student assignment plan that abolished all vestiges of
state-imposed school segregation. Newburg Area Council,
Inc. v. Bd. of Educ. of Jefferson County, 489 F.2d 925, 932
(6th Cir. 1973). Judge Gordon’s direct monitoring of the plan
ended in 1981. McFarland v. Jefferson County Pub. Sch.,
330 F.Supp.2d 834, 841 (W.D.Ky. 2004). Since 1981,
Jefferson County has modified its student assignment plan to
address growth while keeping its policies consistent with
previous desegregation decrees.

In 1998, a group of parents challenged the student
assignment plan, alleging that their children were denied

Xl

admission to a magnet high school based on race. Hampton v.
Jefferson County Bd. of Educ., 72 F. Supp. 2d 753, 774 (W.D.
Ky. 1999) (“Hampton I”). The district court held that Judge
Gordon’s original 1975 desegregation decree was stil! in
effect. Hampton 1, 72 F. Supp. 2d at 744. In 2000, the
desegregation decree was lifted and the court held that the
school board could not use racial quotas at magnet and other
schools that offered unique programs not available at other
schools in the district. Hampton v. Jefferson County Bd. of
Educ., 102 F.Supp.2d 358, 376, 381 (W.D.Ky. 2000)
(“Hampton II’).

In response to the court’s ruling and in an effort to
avoid undermining all the court-ordered progress in
integration, Jefferson County adopted the 2001 Plan. The
2001 Plan uses a system of managed, voluntary choice to
promote integration in the county’s schools without using
racial quotas. Enrolment decisions are based on place of
residence, student choice (through a system of student
preference ranking, application to magnet or traditional
programs, transfer, or open enrolment), and racial guidelines.
Jefferson County’s 2001 Plan was found constitutional by the
Western District of Kentucky and this decision was affirmed
en banc by the Sixth Circuit. McFarland ex rel. McFarland
v. Jefferson County Pub. Schs., 416 F.3d 513 (6th Cir. 2005).

The present case challenges the constitutionality of
Jefferson County’s continued commitment to integration.
Without a voluntary race-conscious student assignment plan,
neighborhood schools would be highly segregated. The 2001
Plan is necessary to prevent wide-spread re-segregation
throughout the county’s schools. The 2001 Plan tries to
ensure that each child, regardless of their race or ethnicity,
receive an education of equal quality in a diverse and
productive environment.

This case has been joined with an appeal from Parents
Involved in Community Schools v. Seattle School District,

\
Xl

NO.1, 426 F.3d 1162 (9th Cir. 2005). The Seattle school
district, like Jefferson County, utilized a voluntary open
choice student assignment plan. In an effort to address the
city’s historical struggle with de facto segregation, the school
district used a race based tiebreaker in assigning students to
oversubscribed high schools. Without a voluntary race-
conscious student assignment plan, Seattle schools would also
re-segregate.

Xill

i

ARGUMENT

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

From its earliest opinions, the Supreme Court has
stated that the Constitution and relevant statutes should be
read consistently with treaties and international law. Murray
v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118
(1804) (“[A]n act of Congress ought never to be construed to
violate the law of nations if any other possible construction
remains.”). The Constitution protects a wide range of human
tights, especially under the Fifth, Eighth, and Fourteenth
Amendments. Treaties and other nations’ concepts of equal
protection can help the United States better understand the
protections available under the Fourteenth Amendment.

Supreme Court decisions have consistently
acknowledged human rights treaties and used them to better
understand U.S. human rights obligations. Justice Ginsburg’s
concurrence in Grutter yv. Bollinger noted that international
_ human rights treaties approve affirmative action by states to
alleviate discrimination and segregation. 539 U.S. 306, 344
(2003). Justice Ginsburg stated:

The International Convention on _ the
Elimination of All Forms of Racial
Discrimination, ratified by the United States in
1994, endorses “special and concrete measures
to ensure the adequate development and
protection of certain racial groups or individuals
belonging to them, for the purpose of
guaranteeing them the full and equal enjoyment
of human rights and fundamental freedoms”.
But such measures, the Convention instructs,
“shall in no case entail as a consequence the
maintenance of unequal or separate rights for

different racial groups after the objectives for
which they were taken have been achieved.

Grutter, 539 U.S. at 344 (citations omitted). Justice Ginsburg
also noted that the Convention on the Elimination of All
Forms of Discrimination Against Women' authorizes
“temporary special measures aimed at accelerating de facto
equality [that] shall be discontinued when the objectives of
equality of opportunity and treatment have been achieved.”
Id.

Similarly, in Roper v. Simmons, Justice Kennedy’s
majority opinion referred to the Civil and Political Covenant
to gauge consensus on the prohibition of juvenile execution
and ultimately determine whether or not juvenile execution
was constitutional. 543 U.S. 551, 567 (2005). Further, in
Thompson v. Oklahoma, Justice Stevens observed that the
International Covenant on Civil and Political Rights, the
American Convention on Human Rights, and Article 68 of the
Geneva Convention Relative to the Protection of Civilian
Persons in Time of War explicitly prohibit juvenile death
penalties. 487 U.S. 815, 831 n.34 (1988). The same Justices
also referred to the Civil and Political Covenant, the
American Convention on Human Rights, and the Geneva
Convention in their constitutional analysis of whether
juvenile execution was constitutional. Stanford v. Kentucky,
492 U.S. 361, 389 (1989).

It has been established for more than one hundred
years by U.S. Supreme Court precedent that international law
is “part of our law, and must be ascertained and administered
' the courts of justice of appropriate jurisdiction, as often as

' Convention on the Elimination of All Forms of Discrimination against
Women, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N.
Doc. There are 171 State parties to the Race Convention and 159 State parties
to the Civil and Political Covenant.

ll. TREATY OBLIGATIONS SUPPORT A FINDING
THAT THE U.S. INTEREST IN CONSIDERING
RACE AS A FACTOR IN SCHOOL
ASSIGNMENT IS COMPELLING

A. The Race Convention

The Race Convention is the definitive treaty-based
international standard on racial discrimination. As of October
1, 2006, there were 171 State parties to the Race Convention.
See United Nations treaty database, http://untreaty.un.org
/ENGLISH/bible/englishinternetbible/partl/chapterl V/treaty2.
asp President Johnson signed the Race Convention in 1966,
and it was ratified after the Senate gave its advice and consent
in 1994. The Race Convention addresses purposeful
discrimination as well as actions that have discriminatory
effects. Discrimination is defined as:

any distinction, exclusion, restriction or
preference based on race, colour, descent, or
national or ethnic origin which has the purpose
or effect of nullifying or impairing the
recognition, enjoyment or exercise, on equal
footing, of human rights and fundamental
freedoms in the political, economic, social,
cultural or any other field of public life.

Race Convention, art. 1, http://www1.umn.edu/humanrts/
instree/d1cerd.htm (emphasis added).

Furthermore, the Race Convention requires State
parties to: “take effective measures to review governmental,
national, and local policies and to amend, rescind, or nullify
any laws or regulations which have the effect of creating or
perpetuating racial discrimination wherever it exists.” /d_, art.
2(1)(c). In addition, State parties are required to take specific

action to guarantee human rights, which include the right to
education. /d. art. 2(2). These remedial measures should not
in any way be considered discrimination. Article 1(4) of the
Race Convention states:

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. . ..

(emphasis added).

The Race Convention established the Committee on
the Elimination of Racial Discrimination (Race Committee)
to monitor state parties’ implementation of and compliance
with treaty obligations. The Race Committee is composed of
independent experts who are nationals of State parties. /d.
art. 8(1). State parties must submit periodic reports on their
implementation of the rights enshrined in the Race
Convention. /d. art 9. The Race Committee is authorized to
review country reports, hear individual and interstate
complaints, and make recommendations to State parties with
regard to treaty implementation. Additionally, the Race
Committee interprets the content of the human rights
provisions in the Race Convention in its General
Recommendations.

The Race Committee has consistently held that de
facto discrimination violates the Race Convention. In L.R. v.
Slovakia, the Committee held the State party responsible for
actions that have discriminatory effects, regardless of whether
they were committed with discriminatory intent. L.R. et al. v.
Slovakia, Communication No. 31/2003, U.N. Doc.
CERD/C/66/D/31/ 2003 (2005), http://www1.umn.edu/

8

humanrts/country/decisions/31-2003.html. Specifically
addressing the treatment of Roma people, the Race
Committee found that Slovakia had failed its treaty obligation
to “[nJullify any laws or regulations which have the effect of
creating or perpetrating racial discrimination.” /d. The
Committee reiterated that discrimination, as defined in Article
1(1) of the Race Convention, extends beyond explicitly
discriminatory measures to reach those which are also
discriminatory in fact and effect. Article 5 states that the right
to equality in education is especially important. Race
Convention, Article S(e)(v), http://wwwl.umn.edu/
humanrts/instree/dicerd.htm.

The Race Committee has specifically addressed de
facto discrimination in the United States. In response to the
United States’ most recent report, the Race Committee stated:

The Committee draws the attention of the State
party to its obligations under the Convention,
and in particular to article | paragraph 1, and
General Recommendation No. XIV, to
undertake to prohibit and to elirninate racial
discrimination in all its forms, including
practices and legislation that may not be
discriminatory in purpose, but in effect. The
Committee recommends the State party to take
all appropriate measures to review . . . local
policies to ensure the effective protection
against any form of racial discrimination and
any unjustifiable disparate impact.

Concluding Observations of the Committee on the
Elimination of Racial Discrimination: United States of
America, U.N. Doc. CERD/C/59/Misc.17/Rev.3 (2001); see
http://www] .umn.edu/humanrts/usdocs/conclcomments-usa.
html. These findings, which emphasize the duty of the United
States to prohibit and eliminate racial discrimination, are

9

consistent with the Constitutional prohibition of
discrimination under the Equal Protection Clause. The
Committee’s conclusions underscore the global consensus on
the necessity of eradicating the pernicious effects of de facto
segregation.’ See Theodore Meron, The Meaning and Reach
of the International Convention on the Elimination of All
Forms of Racial Discrimination, 79 AM. J. INT’L L. 283, 288
(1985).

The Race Convention satisfies the constitutional
requirements of equal protection. The goal of the Race
Convention is to eliminate all forms of racial discrimination,
including de facto segregation. The Court stated in Brown,
that the government has a compelling interest in abolishing
discrimination, especially in school segregation. 347 U.S.
483. The 2001 Plan does not maintain separate or unequal
rights for any group; each student is assigned to a school that
is, by design, the equal of any other school in the area. The
2001 Plan addresses discriminatory housing practices such as
racial steering, location of low income housing, and racial
preferences by voluntarily using a race-conscious plan to

* Several other states have implemented racial guidelines to
eliminate de facto segregation in education. Brazil recently introduced
race-conscious guidelines for University admissions to afford Afro-
Brazilians equal access to post-secondary education. Italo Ramos,
Affirmative Action in Brazil, The Day of the Lambs, THE BLACK
COMMENTATOR (Feb. 23, 2006), http://www.blackcommentator.com/
172/172_guest_ramos_brazil_affirmative_action.html; Rodrigo Davies,
Brazil Takes Affirmative Action in Higher Education, THE GUARDIAN,
August 4, 2003, http://www.education.gaurdian.co.uk/higher/
worldwide/story/0,9959,1012157,00.html. India has adopted numerous
racial! guidelines in education. Ruth Bader Ginsburg & Deborah Jones
Merritt, Affirmative Action: An International Human Rights Dialogue, 21
CARDOZO L. REV. 253, 275-76 (1999). South Africa expressly condones
racial guidelines to achieve equal protection in Article 9(2) of its
constitution. See CONST. S. AFR. (Act 108 of 1996) ch.2 (Bill of Rights),
9(2), http://www.info.gov.za/ docusments/constitution/1996/1996/96
cons2/htm#9.

10

ensure that students have substantially similar educational
experiences. Jefferson County students should not bear a
badge of inferiority based on where they attend school. All
students should be able to attain the benefits of a diverse
educational environment.

The Race Convention also states that remedial
measures should be narrowly tailored in that the measures
“shall in no case entail as a consequence the maintenance of
unequal or separate rights for different racial groups after the
objectives for which they were taken have been achieved.”
Race Convention art. 2(2). The race-conscious measures
included in the 2001 Plan are not permanent, nor are they the
only measures used in determining student assignments.
These race-conscious measures will no longer be necessary
when the county has achieved desegregation in its housing
patterns. Jefferson County’s 2001 Plan should be upheld
under the Constitution and under U.S. treaty obligations
because it is based on a compelling government interest,’ and
it is narrowly tailored.

B. The Civil and Political Covenant

The Civil and Political Covenant is the leading treaty
addressing fundamental civil rights and political freedoms.
President Carter signed the Civil and Political Covenant in
1977, and the United States ratified it in 1992 during the
Presidency of George H.W. Bush. See United Nations Treaty
Database, http://untreaty.un.org/ENGLISH/bible/english
internetbible/partl/chapterl V/treaty6.asp; ICCPR, 138 Cong.
Rec. $4781-84 (Apr. 2 1992). The United States is one of
159 State parties to the Civil and Political Covenant. See /d

* Treaty obligations themselves can constitute a compelling state interest
to justify the establishment of such programs. Sec Connie de la Vega,
Civil Rights During the 1990s: New Treaty Law Could Help Immensely,
65 CINN. L. REV. 423, 468 (1997).

1]

Article 26 of the Civil and Political Covenant, requires the
United States to “guarantee to all persons equal and effective
protection against discrimination on any ground such as race .
...” International Covenant on Civil and Political Rights, art.
26 (emphasis added). Furthermore, Article 2(2) places an
affirmative duty on State parties to: “take the necessary steps,
in accordance with its constitutional processes and with the
provisions of the present Covenant, to adopt such legislative
or other measures as may be necessary to give effect to the
rights recognized in the present Covenant.” /d. art. 2(2).

The Civil and Political Covenant established the
Human Rights Committee to monitor State parties’
compliance. The Human Rights Committee reviews State
parties’ reports, issues authoritative adjudicative decisions on
individual complaints, and interprets the Covenant’s
provisions in its General Comments. The Human Rights
Committee is composed of eighteen independent experts who
are nationals of State parties. Jd. Art. 28(2). State parties are
obligated to submit periodic reports to the Committee for its
review. Jd. Art. 40(1). The Human Rights Committee’s
definition of discrimination is consistent with the definition
found in the Race Convention. General Comment 18 4 7,
http://www 1.umn.edu/humanrts/gencomny/hrcom18.htm. The
Civil and Political Covenant defines discrimination as “any
distinction, exclusion, or preference . . . which has the
purpose or effect of nullifying or impairing the recognition,
enjoyment, or exercise by all persons, on equal footing, of all
rights and freedoms. /d. (emphasis added).

~ On October 25, 2005, the United States submitted its
second and third periodic reports to the Human Rights
Committee. Full repo... available at:
http://www.state.gov/g/drl/rls/55504.htm. After reviewing
the U.S. reports and questioning the United States
representative in July 2006, the Human Rights Committee
noted its concern about de facto segregation in U.S. schools.

12

The Committee noted the failure of the United States to
eliminate racial discrimination, as evidenced by the wide
disparities in the quality of education available to different
groups of students. Specifically, the Committee expressed
concern about:

reports of de facto racial segregation in public
schools, reportedly caused by discrepancies
between racial and ethnic composition of large
urban districts and their surrounding suburbs,
and the manner in which schools districts are
created, funded and regulated. The Committee is
concerned that the State party, despite measures
adopted, has not succeeded in eliminating racial
discrimination such as regarding the wide
disparities in the quality of education across
school districts in metropolitan areas, to the
detriment of minority students.

Concluding Observations of the Human Rights Committee on
the Second and Third U.S. Reports to the Committee: United
States, U.N. Doc. CCPR/C/USA/CO/3 (July 28, 2006), § 23,
http://www1.umn.edu/humanrts/usdocs/ hrucomments2.html.
Voluntary race-conscious plans, such as the Jefferson
County 2001 Plan, were expressly considered when the U.S.
ratified the Civil and Political Covenant. Statement by Conrad
K. Harper to the Human Rights Committee, USUN Press
Release #49-(95), at 3 (Mar. 29, 1995),
http://www.state.gov/s/l/65762.htm. The U.S. entered an
understanding upon ratification, which effectively stated that
the United States could make distinctions based upon race if
they are rationally related to a legitimate government
objective. U.S. reservations, declarations, and understandings,
International Covenant on Civil and Poiitical Rights, 138
Cong. Rec. S4781-01 (daily ed., April 2, 1992),
http://www 1 .umn.edu/humanrts/usdocs/civilres.html.

13

C. Affirmative Action, as Supported by National and
International Law, is Necessary to Assure Equality

The state government has a legitimate objective in
addressing the de facto discrimination that exists in Jefferson
County, like those in many large U.S. cities.° This
discrimination is largely a remnant of de jure segregation and
underlying racial hostilities and preferences that carry over
into school systems. Without race-conscious plans to
counteract de facto segregation, both black and white students
are deprived of the opportunity to interact across racial
barriers, establish friendships with those of a different
background, and receive an education similar to that of their
peers across town. Diversity benefits students throughout
their education and in the workforce. See Grutter v. Bolinger,
539 U.S. 306 at 313, 323-24. Jefferson County’s 2001 Plan is
a voluntary race-conscious student assignment plan that
addresses de facto discrimination by promoting equality and
diversity throughout the county’s schools. Should the Court
find the Plan unconstitutional, schools will be severely
hampered in their ability to address de facto discrimination,
and the United States will have greater difficulty meeting its
treaty obligations.

The widespread repercussions of prohibiting schools
from addressing de facto segregation would undermine good
faith actions which implement provisions of the Race
Convention and the Civil and Political Covenant. The

° Housing in Jefferson County is still highly segregated. Forty-
seven percent of all blacks live on blocks that are 80 percent or more
black. Among whites, 86.9 percent live on blocks that are 80 percent or
more white. See Lois M. Quinn and John Pawasarat, Racial /ntegration
in Urban America: A Block Level Analysis of African American and White
Housing Patterns, Employment and Training Institute, School of
Continuing Education, University of Wisconsin-Milwaukee, 18, 21
(2003), http://www.uwm.edu/DeptETI/ integration/integration. pdf.

14

discriminatory effects of re-segregation would violate srticle
2(2) of the Race Convention and Articles 2 and 26 of the
Civil and Political Covenant. See Race Convention, art. 2;
Civil and Political Covenant, art. 2, 26. The U.S. will be
obligated to report re-segregation when it reports again to the
Race Committee and the Human Rights Committee.

As this Court stated almost a century ago, “|T]reaties
are to be executed in the utmost good faith, with a view to
make effective the purposes of the high contracting parties.”
Sullivan v. Kidd, 254 U.S. 433, 439 (1921). Treaties to which
the U.S. is a party, authoritative interpretations of those
treaties, and constitutional courts of other States recognize
that policies with discriminatory effects violate equal
protection. Recognition of discriminatory effects is essential
to achieving equal protection under the law because policy
makers rarely, if ever, express their intent to discriminate.
See e.g. Washington v. Davis, 426 U.S. 229, 254 (Stevens, J.
concurring) (“My point in making this observation is to
suggest that the line between discriminatory purpose and
discriminatory impact is not nearly as bright, and perhaps not
as critical, as the reader of the Court’s opinion might
assume.”). Jefferson County’s 2001 Plan, like that of many
other school systems nation-wide, is based on the recognition
that discrimination did not die with de jure segregation.
Addressing de facto segregation is necessary to ensure all
students equal protection under the law.

CONCLUSION

State action is appropriate and necessary whenever a
law, regulation, or practice has the effect, not just the intent,
of race-based discrimination. If states do not take action,
public schools will continue to re-segregate. Such re-
segregation violates the Equal Protection Clause as well as
U.S. treaty obligations. The United States committed itself to
undertake the steps necessary to guarantee all persons equal
and effective protection against all forms of racial
discrimination by ratifying the Race Convention and Civil
and Political Covenant.

The Race Convention and the Civil and Political
Covenant embody U.S. standards as well as international
standards. Voluntary, race-conscious programs, like
Jefferson County’s 2001 Plan, are implicit in the United
States’ concept of equality. Affirming the judgment of the
district court will further the Constitutional guarantee of equal
protection in addition to promoting U.S. obligations under
international law.

Based on the foregoing reasons, the judgment of the
district court should be affirmed.

Dated: October 9, 2006 Respectfully submitted,
CONSTANCE DE LA VEGA DAVID WEISSBRODT*
Frank C. Newman Regents Professor
International Human Rights and Fredrikson & Byron
Law Clinic, University of San Professor of Law, University
Francisco School of Law of Minnesota Law School
2130 Fulton Street 229-19th Avenue South
San Francisco, CA 94117 Minneapolis, MN 55455
(415) 422-2296 (612) 625-5027

“Counsel of Record’

” Amici are grateful to Sara Payne, Elizabeth Powers, and Marsha
Freeman for their extraordinary contributions to this brief.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0239%3A35. Public record. Not legal advice.