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

Supreme Court of the Anited States

¢

PARENTS INVOLVED IN COMMUNITY SCHOOLS,

Petitioner,

v.

SEATTLE SCHOOL DISTRICT NO. 1; ET AL.,

Respondents.

®

CRYSTAL D. MEREDITH, Custodial Parent and

Next Friend of Joshua Ryan McDonald,

Petitioner,

Vv.

JEFFERSON COUNTY BOARD OF EDUCATION, ET AL..,

Respondents.

¢

On Writs Of Certiorari To The

United States Courts Of Appeals

For The Ninth And Sixth Circuits

S

BRIEF OF INTERESTED HUMAN RIGHTS CLINICS

AND ORGANIZATIONS AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

¢

CYNTHIA J. LARSEN (Counsel of Record)

CLIFFORD R. MICHEL

MARLENE A. ZARFES

E. ANNE HAWKINS

SUSAN COLLIER

ORRICK, HERRINGTON & SUTCLIFFE LLP

400 Capitol Mall, Suite 3000

Sacramento, CA 95814-4497

(916) 447-9200

{Additional Counsel Listed On Inside Cover]

——_—_ i _ _ SEE

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

. Of counsel:

MARTHA F. Davis 7

Professor of Law

NORTHEASTERN UNIVERSITY SCHOOL OF LAW

400 Huntington Avenue

Boston, Massachusetts 02115

(617) 373-8921

CYNTHIA SOOHOO

CAROLINE BETTINGER-LOPEZ

Supervising Attorneys

COLUMBIA LAW SCHOOL HUMAN RIGHTs CLINIC

435 W. 116th Street, Box-28

New York, NY 10027

(212) 854-4291

CATHERINE ALBISA

Executive Director

NATIONAL ECONOMIC AND SOCIAL RIGHTS INITIATIVE

90 John Street, Suite 308

New York, NY 10038

(212) 253-1710

Attorneys for Amici Curiae

Interested Human Rights Clinics and Organizations

TABLE OF CONTENTS

Page

INTERESTS OF AMICI CURIA .........ccccccscsessensseceeeees 1

SUMMARY OF ARGUMENT ...............cccccesesesseeseeeseseees 4

ITT secennecdasionncsniisenediinsinibnataninnnalienananniamueniats 5

I. COMPARATIVE AND INTERNATIONAL LAW

II.

Il.

ARE RELEVANT TO THE ISSUES BEFORE

WEED GIGI, sscceicccsocsmessssnesnsenmionienennmnsavinneeitenn

OTHER NATIONS HAVE UPHELD RACE-

CONSCIOUS AND GENDER-CONSCIOUS

MEASURES UNDER COMPARABLE CIR-

FOU cnchosnsntmosnenensnseesimenesnseeescstvetsseeen

INTERNATIONAL TREATIES SUPPORT

CONSIDERATION OF RACE AS A FACTOR

IN SCHOOL ASSIGNMENT...........c:ccccsseeeseeerees

A. The ICCPR and CERD Make Clear that

Race-Conscious Policies Designed to Cre-

ate Diversity Are Not Discriminatory.........

B. The Managed-Choice Programs Are Con-

sistent with the Obligations of the United

States Under the ICCPR and CERD...........

C. Self-Execution Is Not an Issue Where, as

Here, the Treaty Provisions Are Cited as

Aids to Interpretation...............::ccceseeseeeesens

ea cccnirstanssntnentiniesmntniaicuinnaarneedesenenicinenintinn

11

19

20

23

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Atkins v. Virginia, 536 U.S. 304 (2002) ........ cc ceeesesseeees 7,8

Brown v. Board of Educ. of Topeka, 349 U.S. 294

uae ee er iidpnccssnsniivterhnitingtenertinsinnsinigediauniatanetiemndiiiniadieenineidepewin 10

Grutter v. Bollinger, 589 U.S. 306 (2003) .......c.essse000 7, 22

Knight v. Florida, 528 U.S. 990 (1999).........ccccesceseseeeeees 9

Lawrence v. Texas, 539 U.S. 558 (2003) .......:.csssssseeseseee 7,8

Murray v. Schooner Charming Betsy, 6 US. (2

ne tl usitinsisinicntnicatneuicidinnitinnsnseninapisinesiniidinuasite 6

New York v. Quarles, 467 U.S. 649 (1984) ...........ccccceeeeecenee 7

Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377

seal iccrscncuatianicuniassdiasenttaaoanniidianiganinsddinaiatimpeniitinaiquiits 9

Patterson v. Texas, 536 U.S. 984 (2002)...........:ccccceeeeeeeeseees 8

Printz v. United States, 521 U.S. 898 (1997)..............008 8,9

Regents of the Univ. of Calif. v. Bakke, 438 U.S. 265

SEPP thdcsdiletbanentinisincigiiniabenerinandinbbdipeinignididiitbingabinessibiuitabidannils 12

Roper v. Simmons, 543 U.S. 551 (2005) .............04. 6, 7, 8, 18

Talbot v. Seeman, 5 U.S. (1 Cranch) 1 (1801)...................4. 6

The Paquete Habana, 175 U.S. 677 (1900)........:ccccccceeeerees 6

Thompson v. Oklahoma, 487 U.S. 815 (1988) .........:cceseee 9

Trop uv. Dulles, 356 U.S. 86 (1958) .........cccssccesseessseereseesees 7

United States v. Then, 56 F.3d 464 (2d Cir. 1995).............. 7

Washington v. Glucksberg, 521 U.S. 702 (1997)..........:000008 7

iii

TABLE OF AUTHORITIES ~ Continued

Page

INTERNATIONAL CASES

Balaji v. State of Mysore, A.LR. (S.C.) 649 (1963)..........0. 17

Canada (Attorney General) v. Moore, 55 C.R.R. (2d)

B54; 1968 C.BR. LIBRIS FBZ ...cecccccessescesseccsccsecosovssvecssees 11

Canadian Nat Ry. Co. v. Canada, {1987} 1 S.C.R.

1114, 1987 S.C.R. LEXIS 1136 (Can.)........ eee 14, 15

Case C-158/97 Badeck & Others, 2000 E.C.R. I-

1875, [2001] 2 C.M.L.R. 6, 2000 All ER (EC) 289

Fils Gai e ccecinscensnsccerseevsenssnsseoemnsenagennsonsensnies 11, 12, 13

Case C-409/95 Marschall v. Land Nordrhein-

Westfalen, 1997 E.C.R. I-6363, 1997 All ER (EC)

I 11,12

Case C-476/99 Lommers v. Minister van Landbouw

Natuurbeheer en Visserij, {2002} IRLR 430

TIRES at toto oe 219 AO 13

Case E-1/02 EFTA Surveillance Authority v. The

Kingdom of Norway, |2003] IRLR 318 (E.F.T.A.

i dsiaistitanshelsaniashiguianinpindinineeasieiinbinnnimaelaentiatiemnesiete 13

Devadasan v. Union of India, A.I.R. (S.C.) 179

IIE harsniehciiehiciinsstcnadnedabelcindainiebabiteniintdeatiiiediniannniiosiinciubedirianias 17

Indra Sawhney v. Union of India, A.1.R. (S.C.) 477

anal kacistiinititaiidnneianncsnentetsileiunaintinanaitaiiieieitienudinbeiannianeienie 17

Gerhardy v. Brown (1985) 159 C.L.R. 70 (Austl.) ............ 17

Lovelace v. Ontario, [2000] 1 S.C.R. 950, 2000 Can.

a Tees Se a MI Deicccoctssccccnsnennsintenstntosienssenaniens 14

Motala & Another v. Univ. of Natal, 1995 (3) BCLR

374 (Durban Sup. Ct.), 1995 SACLR LEXIS 256

Es SEREEV SERRE one CODE TE FMC Te oT nL mt Sen Oe 15

iv

TABLE OF AUTHORITIES ~ Continued

Re Parsons: Application for Judicial Review, [2003]

NICA 20; [2004] NI 38 (N.Ir.)......ccccccccceceececseseeeceseeee

State of Madras v. Champakam Dorairajan, A.1.R.

CAG.) TP CRIB) ceevccnvsccecsnecseossconvennsncescnesanienneideniantiin

Summayyah Mohammed v. Moraine & Another

(1996), 3 L.R.C. 475 (Trinidad & Tobago)................

Te Runanga O Muriwhenua Inc. v. Attorney-

General [1990] 2 N.Z.L.R. 641, 1990° N.Z.L.R.

Seca OOD CO.A.) GZ.) cccoreceveosecenssesnscotessnemnansenetes

CONSTITUTIONS

Canada Const. (Constitution Act, 1982) Schedule B,

Pt. I (Canadian Charter of Rights and Free-

GUE), G TBGED .0ccceccccesereceeoselenvenssessonasunnmensunetbensnnnns

Indian Const. arts.

South Africa Const. pmbl.; ch. 2, § 9(2) ....... eee eeceeeeeee

iF fo 0 U8 § ee

STATUTES

Canadian Human Rights Act of 1985 (R.S.C. 1985,

Or» FE, ©. WD ovrccnresesccsesoccscnsniscipscioseneenniseaanammamanas

Employment Equity Act (No. 55 of 1998) sections

GER Man) amd BOB) ...cccccoccccrecnessovesssocconsostnnageniennnsvesetans

Page

pevee 18

seeewe 11

. TABLE OF AUTHORITIES — Continued

Page

Employment Insurance Act of 1996, Part I] Em-

ployment Benefits and National Employment

Service (S.C. 1996, ¢. 23, 8. GO) ..........ccccceceseseeceeeeeseeeeees 14

Human Rights Act 1993, 1993 S.N.Z. No. 82 §§ 58,

ni cetaaaielaaastaedanennapeseatnente 17

New Zealand Bill of Rights Act 1990, § 19, 1990

TTR enE eee nee E TE 17

Police (Northern Ireland) Act 2000, ¢.32, § 46(1)............. 17

Promotion of Equality and Prevention of Unfair

Discrimination Act, 2000 (4 of 2000), Section 25.......... 15

Racial Discrimination Act 1975, § 8(1) (Austl.) 0.0.0.0... 17

Schools Act 84 of 1996 (No. 27 of 1996), Section

cies cca ncteicemmenmenneneneesensentenens 15

OTHER AUTHORITIES” -

Committee on the Elimination of Racial Discrimi-

nation: Addendum by Israel, at J 485, U.N. Doc.

CERD/C/471/Add. 2 (2005).........:cccccccsessssrereccessssererereees 18

Convention on the Elimination of All Forms of

Racial Discrimination, Gen. Rec. No. 19, Racial

segregation and apartheid, paras, 2-4, U.N.

CERD Comm., 47th Sess., U.N. Doc. A/50/18

STE TTT cinta taintiebinabdncnneieagensonsetonasecneseensoowencees 20

Martha F. Davis, Jnternational Human Rights and

United States Law: Predictions of a Court-

watcher, 64 Alb. L. Rev. 417 (2000)...............ccccceeeeeeeeees 10

Connie de la Vega, Civil Rights During the 1990s:

New Treaty Law Could Help Immensely, 65 U.

TR 26

TABLE OF AUTHORITIES - Continued

Joan Fitzpatrick, The Preemptive and Interpretive

Force of International Human Rights Law in State

Courts, 90 Am. Soc’y Int'l L. Proc. 259 (1996)............-+..

Ruth Bader Ginsburg, Associate Justice, Supreme

Court of the United States, “A Decent Respect to

the Opinions of [HumanJkind”: The Value of a

Comparative Perspective in Constitutional Adju-

dication, Keynote Address to the American Soci-

ety of International Law (Apr. 1, 2005) .................ccceee

Ruth Bader Ginsburg & Deborah Jones Merritt,

Fifty-First Cardozo Memorial Lecture - Affirma-

tive Action: An International Human Rights Dia-

logue, 21 Cardozo L. Rev. 253 (1999) ..........:cccccccceeeeeeees

Louis Henkin et al., Human Rights 784-86 (1999)...........

Oliver Wendell Holmes, Jr., The Common Law 1

Human Rights Committee, Consideration of Reports

Submitted by the States Parties Under Article 40

of the Covenant, 87th Sess., U.N. Doc. CCPR/C/

i iiiceciteiachiaisinaaileehtinaaiaanciadaiidmialatinldiiciaidiaill

ICCPR, General Comment Adopted Under Article

40 on Issues Relating to Reservations Made Upon

Ratification or Accession to the Covenant or the

Optional Protocols, or in Relation to Declarations

Under Article 41 of the Covenant (Adopted, No-

vember 2, 1994), 34 I.L.M. 839 (1995) (General

SI Bi encncesscoscssnictnbnnimentapinusnicnmmnnaaidnenainnataien

International Covenant on Civil and Political Rights,

adopted and opened for signature December 16,

1966

et ff A. See eeeremeeene 19

et, SE, Ba Ces CO cecccetensenectcvernenncnesmsctnatiiciannas

TABLE OF AUTHORITIES —- Continued

Page

Bh, Se Be I Se cccrecencctnnenmnetccntitmnnennneatiinis 20

RE SF 21

International Convention on the Elimination of All

Forms of Racial Discrimination, adopted and

opened for signature December 21, 1965

OR, Be ee i irctiennentntcntnncvenmntneensnnineasl 20, 22

ast. 3-5, 660 U.NN.TG. BIG-BB .....cccccccccocesocsscccccsesesccsseeee 20

EG eS i iireeitetrsncentepntinsseunenemnssenncentinnnins 24

a a ee i ictrtitnsnscccmnncsnenemnscnnnineen 20

Rt ee 20

Herbert M. Jauch, Affirmative Action in Namibia

te htrincsisicbiansideensanineinbicninniinssiinnensainidanaaditisnndntitis 18

Claire L'Heureux-Dubé, The Importance of Dialogue:

Globalization and the International Impact of the

Rehnquist Court, 34 Tulsa L.J. 15 (1998) ........0. eee 10

Sandra Day O’Connor, Broadening Our Horizons:

Why American Lawyers Must Learn About For-

eign Law, 45 Fed. Lawyer 20 (1998).............ccccccceseeseeeeees 7

Sandra Day O’Connor, Federalism of Free Nations,

reprinted in International Law Decisions in Na-

tional Courts 13 (Thomas M. Franck & Gregory

I i, SI sincicencerncatiniaeeannethcehlandigebabei cantante 6

Marian Nash, U.S. Practice: Contemporary Practice

of the United States Relating to International

Law, 88 Am. J. Int’] L. 721, 722 (1994)................eeeees ace

Jordan J. Paust, International Law as Law of the

United States 62-64, 68, 97-98, 134-35, 370, 377-

es CU TUE oerritinstinaiinssiieidincciicpieenigibeniiiieatimceigntaitainddsisigte 26

viii

TABLE OF AUTHORITIES — Continued

William Rehnquist, Constitutional Courts - Compara-

tive Remarks (1989), reprinted in Germany and

its Basic Law: Past, Present and Future - A Ger-

man-American Symposium 411 (Paul Kirchhof &

Donald P. Kommers eds., 1993) ..........ccccccececeeeeeeeeees

Restatement (Third) of Foreign Relations Law

§ 115(b) Reporter’s Note (1987).........ccccscsessseesseeess

U.S. Reservations, Understandings, Declarations,

and Proviso, ICCPR, 138 Cong. Rec. S4781-01

(daily ed. April 2, 1992), I1(5)...........ccssssessesseerseeeees

U.S. Reservations, Understanding, Declarations,

and Proviso, CERD, 140 Cong. Rec. S7634-02

(daily ed. Jume 24, 1994), I] 0... ceseeeseseeesseeeeeeeenes

United Nations, Compilation of General Comments

and General Recommendations Adopted by Hu-

man Rights Treaty Bodies, General Comment 18,

mame. 1S ab BB CIGD) .cccccccccnccecssvececescesisccssssenenesssnsens

Page

1

INTERESTS OF AMICI CURIAE'

Amicus Curiae Columbia Law School Human Rights

Clinic (Columbia Clinic), to bridge theory and practice,

provides students with hands-on experience working on

active human rights cases and projects. Working in part-

nership with experienced attorneys and institutions

engaged in human rights activism, both in the United

States and abroad, students contribute to effecting posi-

tive change locally and globally. In recent years, the

Columbia Clinic has worked on several matters concerning

human rights issues in the United States.

Amicus Curiae the Allard K. Lowenstein International

Human Rights Clinic (Yale Clinic) is a Yale Law School

program that gives students first-hand experience in

human rights advocacy. The Yale Clinic undertakes litiga-

tion and research projects on behalf of human rights

organizations and individual victims of human rights

abuses. The 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 Yale Clinic has focused increasing attention on

efforts to ensure respect for international human rights

standards in the United States.

' The parties’ letters consenting to the filing of amici curiae briefs

have been filed with the Clerk of the Court. No counsel for any party

has authored this brief in whole or part. No person or entity, other than

amici, their members, or their counsel, have made a monetary contribu-

tion to the preparation or submission of the bref.

2

Amicus Curiae the International Human Rights Clinic

at George Washington Law School (GW Clinic) is dedi-

cated primarily to litigating human rights cases before

United States and international tribunals. The GW Clinic

seeks first to promote the progressive integration of

international human rights standards into United States

legal practice, and second, to assist victims of injustice in

utilizing domestic and international legal regimes to

protect their human rights or vindicate violations of those

rights. Accordingly, its docket consists largely of cases

either in United States courts under the Alien Tort Claims

Act (ATCA) and other federal statutes, or before interna-

tiona: tribunals, such as those in the Inter-American

Human Rights System.

Amicus Curiae the International Human Rights Law

Clinic at the University of Virginia School of Law (U.Va.

Clinic) gives students first-hand experience in human

rights advocacy under the supervision of international

human rights lawyers. Projects are designed to help

students build the knowledge and skills necessary to be

effective human rights lawyers and to integrate the theory

and practice of human rights. The U.Va. Clinic collabo-

rates with non-governmental organizations and individual

advocates on a wide range of human rights issues through

various means, including litigation. The U.Va. Clinic’s

work regularly involves comparative legal analyses and

international law analyses of alleged human rights viola-

tions or domestic legislation.

Amicus Curiae Global Rights —- Partners for Justice

(“Global Rights”) is a non-profit organization of human

rights and legal professionals engaged in human rights

advocacy, litigation, and training around the world.

Founded in the District of Columbia in 1978, Global

3

Rights (formerly the International Human Rights 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. Global Rights has repre-

sented individuals and organizations before United States

and international tribunals and has appeared as amicus

curiae in a number of United States cases. Beginning in

the 1990s, a central focus of Global Rights’ work has been

to promote the use of international human rights law and

standards in efforts to promote women’s rights and to

combat racial discrimination. Global Rights joins this brief

to emphasize the obligation of the United States to provide

remedies for racial and gender discrimination consistent

with its obligations under international treaty law, par-

ticularly the International Covenant on Civil and Political

Rights and the International Convention on the Elimina-

tion of All Forms of Racial Discrimination, as well as

international customary law.

Amicus Curiae the National Economic and Social

Rights Initiative (NESRI) promotes a human rights vision

for the United States that ensures dignity and access to

the basic resources needed for human development and

civic participation. The Human Right to Education Pro-

gram at NESRI works with education advocates and

organizers to promote policy change in public education

using human rights standards and strategies. NESRI

believes that human rights offer a framework for how to

transform our public schools based on internationally

recognized standards of equality, accountability, dignity, -

and community participation. The program initiatives

work in collaboration with community partners to

4

generate human rights documentation, analysis, advocacy,

public education materials and workshops.

Amicus Curiae the US Human Rights Network was

formed to promote United States accountability to univer-

sal human rights standards by building linkages between

organizations, as well as individuals, working on human

rights issues in the United States. The Network strives

towards building a human rights culture in the United

States that puts those directly affected by human rights

violations, with a special emphasis on grassroots organiza-

tions and social movements, in a central leadership role.

The Network also works towards connecting the United

States human rights movement with the broader United

States social justice movement and human rights move-

ments around the world. The Network joins this brief to

emphasize the United States’ obligation to remedy dis-

crimination and promote equality and in recognition of the

important role that integrated schools play in realizing the

right to education.

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SUMMARY OF ARGUMENT

Comparative and international law are relevant to the

Court’s consideration of the constitutionality of the

managed-choice plans adopted by Jefferson County Board

of Education and Seattle School District No. 1, and sup-

port upholding both plans. The legal tradition of the

United States has long embraced looking to foreign and

international precedent for guidance on domestic legal

questions. The Court's intellectual leadership in the field

of international human rights is strengthened by consid-

eration of the human rights jurisprudence of foreign

jurisdictions and the law of nations.

5

The courts of other nations as diverse as Canada,

South Africa, and India and international entities such as

the European Union have all confronted challenges to

race-conscious and gender-conscious policies. These bodies

repeatedly have upheld the use of such policies to benefit

underrepresented minorities, and in many cases have

permitted affirmative action programs that go far beyond

the managed-choice programs at issue here. As members

of this Court have previously recognized, opinions such as

these by colleagues in foreign jurisdictions can assist this

Court in reaching sound conclusions under domestic law.

International treaties to which the United States is a

party are also sources of guidance in consideration of the

validity of the Jefferson County and Seattle plans. These

international] treaties not only permit but endorse the type

of race-conscious programs voluntarily adopted by the

Jefferson County and Seattle school districts.

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ARGUMENT

I. COMPARATIVE AND INTERNATIONAL LAW

ARE RELEVANT TO THE ISSUES BEFORE

THE COURT

Respondents argue that the managed-choice plans

adopted by Jefferson County and Seattle constitutionally

use race as one of several factors in assigning students to

public schools. The record amply supports these argu-

ments.

In considering the constitutionality of the Jefferson

County and Seattle plans, amici curiae urge this Court to

look to foreign and international law to inform its decision

6

regarding the Jefferson County and Seattle managed-

choice plans.

The Court has long 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 avoid-

able, so to be construed as to infract the common princi-

ples and usages of nations”); see generally Sandra Day

O’Connor, Federalism of Free Nations, reprinted in Inter-

national Law Decisions in National Courts 13, 15-16

(Thomas M. Franck & Gregory H. Fox eds., 1996).

In addition, the Court has recognized that customary

international law is a part of American law and should be

looked to for guidance in determining issues that fall

within its scope. The Paquete Habana, 175 U.S. 677, 700

(1900). This recognition of the importance of international

law in guiding American jurisprudence is especially true

in the area of human rights. The fundamental rights that

are guaranteed by the Constitution of the United States

have found iterations in the laws of other nations as well

as in international treaties and covenants. In Roper v.

Simmons, Justice Kennedy observed that “[iJt does not

lessen our fidelity to the Constitution or our pride in its

origins to acknowledge that the express affirmation of

certain fundamental rights by other nations and peoples

simply underscores the centrality of those same rights

within our own heritage of freedom.” 543 U.S. 551, 578

(2005). The Court has expressly looked to the laws and

_ opinions of other nations in determining issues pertaining

to the rights guaranteed by the Eighth and Fourteenth

Amendments of the Constitution, Roper v. Simmons, 543

U.S. at 575-78; Atkins v. Virginia, 536 U.S. 304, 316 n.21

(2002); Washington v. Glucksberg, 521 U.S. 702, 718 n.16

(1997); Trop v. Dulles, 356 U.S. 86, 102-03 (1958), as well

as issues pertaining to the fundamental rights of freedom

and privacy, see, eg., Lawrence v. Texas, 539 U.S. 558

(2003), Grutter v. Bollinger, 539 U.S. 306, 344 (2003)

(Ginsburg, J., concurring).

There are practical as well as historic reasons to look

to international law for guidance in resolving domestic

legal issues. Experience has a longstanding role in the

development and evolution of legal jurisprudence — 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). Looking to the experience of

other legal systems for ideas and guidance is particularly

practical when those other systems “have struggled with

the same basic constitutional questions as we have: equal

protection, due process, the rule of law in constituticnal

democracies.” Sandra Day O’Connor, Broadening Our

Horizons: Why American Lawyers Must Learn About

Foreign Law, 45 Fed. Lawyer 20 (1998); see also New York

v. Quarles, 467 U.S. 649, 672-74 (1984) (O’Connor, J.,

concurring) (supporting the application of other nations’

relevant experiences to determine scope of Fifth Amend-

ment exclusionary rule); United States v. Then, 56 F.3d

464, 468-69 (2d Cir. 1995) (Calabresi, J., concurring)

(noting that other countries draw from American constitu-

tional theory and practice and that, as a result, the ways

in which those countries have dealt with problems analo-

gous to issues arising in American jurisprudence can be

8

very useful in analyzing and interpreting difficult Ameri-

can constitutional issues).

International and foreign law rulings on constitu-

tional issues such as those facing the Court can also

illustrate the ramifications of different solutions to similar

legal problems, Printz v. United States, 521 U.S. 898, 977

(1997) (Breyer, J., dissenting), shedding light on potential

consequences of a given constitut nal interpretation or

ruling.

Justice Ginsburg has repeatedly exhorted the value of

legal decision-making processes that take into account the

decisions and opinions of international law and foreign

jurisdictions. See, e.g., Ruth Bader Ginsburg, Associate

Justice, Supreme Court of the United States, “A Decent

Respect to the Opinions of [Human]Jkind”: The Value of a

Comparative Perspective in Constitutional Adjudication,

Keynote Address to the American Society of International

Law (Apr. 1, 2005). Justices Kennedy, Breyer, and Stevens

have also demonstrated a belief that both comparative and

international law materials are valuable aids to constitu-

tional interpretation. See, e.g., Roper, 543 U.S. at 575

(Kennedy, J.) (noting that the Court’s determination that

the death penalty is disproportionate punishment for

juvenile offenders “finds confirmation” in the fact that the

United States was the only country in the world that

officially sanctioned the practice), Lawrence, 539 U.S. at

576 (Kennedy, J.) (noting that the European Court of

Human Rights and other nations “have taken action

consistent with an affirmation of the protected right of

homosexual adults to engage in intimate, consensual con-

duct.”); Atkins, 536 U.S. at 316 n.21 (Stevens, J.); Patterson

v. Texas, 536 U.S. 984, 984 (2002) (Stevens, J., dissenting

from denial of certiorari) (citing an apparent international

9

consensus against the execution of a capital sentence

imposed upon a juvenile to urge the Court to revisit the

issue of the constitutionality of the sentence); Nixon v.

Shrink Missouri Gov't PAC, 528 U.S. 377, 403 (2000)

(Breyer, J., concurring) (noting that other nations’ ap-

proaches 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) (considering the decisions of the European

Court of Human Rights, the U.N. Human Rights Commit-

tee, and the case law of other countries in determining if a

lengthy delay in administering the lawful death penalty

may be unusually and impermissibly cruel); Printz uv.

United States, 521 U.S. at 976-77 (Breyer, J., dissenting)

(discussing experiences of federal systems in Switzerland,

Germany, and the European Union as aids to deciding

question of United States federalism); Thompson v. Okla-

homa, 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 questions arising under

the Eighth Amendment). See also William Rehnquist,

Constitutional Courts - Comparative Remarks (1989),

reprinted in Germany and its Basic Law: Past, Present and

Future — A German-American Symposium 411, 412 (Paul

Kirchhof & Donald P. Kommers eds., 1993) (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”).

Furthermore, recognizing the validity of interpreta-

tions from foreign and international courts ensures the

Court’s continued presence and leadership in the interna-

tional arena of human rights issues. See Martha F. Davis,

10

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). Decisions rendered by this Court

have long served as a model for countries around the

world; 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 LHeureux-

Dubé, The Importance of Dialogue: Globalization and the

International Impact of the Rehnquist Court, 34 Tulsa L.J.

15, 16-17 (1998). Increased engagement with the constitu-

tional courts of other countries can help to ensure a

leading position in international human rights for Ameri-

can courts and for the United States more generally.

The practical and historic rationales for taking inter-

national and comparative perspectives into consideration

in resolving domestic legal issues are directly relevant to

determining the constitutionality of the Jefferson County

and Seattle plans. The United States is not alone among

nations in imstituting programs promoting diversity and

remedying lingering effects of discrimination against

certain social groups, nor has the United States been alone

in requiring that such programs be reconciled with guar-

antees of equality under existing law. Indeed, the legal

systems in other countries have been profoundly influ-

enced by the legacy of this Court’s decision in Brown v.

Board of Educ. of Topeka, 349 U.S. 294 (1955). See

L’Heureux-Dubé, 34 Tulsa L.J. at 20 (noting that Brown

has “had a large impact on the spirit and development of

human rights protections worldwide”). Brown has been

11

widely cited by courts all over the world. See, e.g., Canada

(Attorney General) v. Moore, 55 C.R.R. (2d) 254; 1988

C.R.R. LEXIS 287; Summayyah Mohammed v. Moraine &

Another (1996), 3 L.R.C. 475 (Trinidad & Tobago); Te

Runanga O Muriwhenua Inc. v. Attorney-General [1990] 2

N.Z.L.R. 641, 1990 N.Z.L.R. LEXIS 845 (C.A.) (New

Zealand). Taking into account other nations’ interpreta-

tions of human rights issues will only enhance the Court’s

reasoning, prestige and influence in the areas of interna-

tional human rights law and constitutional law.

II. OTHER NATIONS HAVE UPHELD RACE-

CONSCIOUS AND GENDER-CONSCIOUS MEAS-

URES UNDER COMPARABLE CIRCUMSTANCES

Numerous countries have upheld the use of “special

measures” — both race-conscious and gender-conscious

factors — in programs to benefit underrepresented popula-

tions. In many countries, permissible programs to promote

integration and remedy past discrimination are much

more aggressive than the narrowly-tailored managed-

choice programs at issue here, and even jurisdictions that

have set limits on affirmative action have upheld race-

conscious or gender-conscious measures.

Most notably, the Court of Justice of the European

Communities has endorsed 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. I-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 Nordrhein-Westfalen,

12

1997 E.C.R. 1-6363, 1997 All ER (EC) 865 (E.C.J. 1997)

(available on Westlaw).

Significantly, in the Hessen, Germany plan under

review in Badeck and the German national rule considered

in 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 Ruth Bader Ginsburg &

Deborah Jones Merritt, Fifty-First Cardozo Memorial

Lecture - Affirmative Action: An International Human

Rights Dialogue, 21 Cardozo L. Rev. 253, 279 (1999)

(acknowledging that race and gender may be plus factors

in employment, promotion, or educational admissions).

The plans under review in Badeck and Marschall did not

give automatic or unconditional priority to women over

men. Similarly, the Jefferson County and the Seattle

school integration plans under review in the case at bar do

not give automatic or unconditional priority in school

assignment to students of any race. Rather, in the Jeffer-

son County program, students are initially assigned to

schools in their “resides” area, the boundaries of which are

drawn taking race into account, but that assignment may

be superseded by student choice and other factors. In the

Seattle program, race is but one of several factors that

may be utilized, after consideration of the student’s pref-

erence among schools to attend. Thus, student choice is

the primary selection criteria under both plans.

Although in Badeck and Marschall the European

Court of Justice did not explicitly adopt the concept of

“narrow tailoring” from United States jurisprudence, it

engaged in analysis similar to that invoked by American

courts reviewing government action with regard to race-

conscious programs. Thus, in Badeck, for example, the

European Court investigated whether the priority given to

13

females in appointments and promotions pursued a

legitimate social objective and used means that were

proportionate “in relation to the real needs of the disad-

vantaged group.” Badeck, 2000 E.C.R. at 1889. Applying

this standard, the court concluded that the program

passed muster under Community law. Jd. at 1919.

Since Badeck, the European Court of Justice and the

European Free Trade Association (“E.F.T.A.”) Court have

upheld affirmative measures to promote employment of

underrepresented groups. In Case E-1/02, EFTA Surveil-

lance Authority v. The Kingdom of Norway, {2003} IRLR

318 (E.F.T.A. 2003), the E.F.T.A. Court affirmed that states

may adopt measures providing specific advantages for

women in employment sectors in which they were previ-

ously underrepresented, so long as such measures take

into account the principle of proportionality, “which

requires that derogations remain within the limits of what

is appropriate and necessary in order to achieve the aim in

view and that the principle of equal treatment be recon-

ciled as far as possible with the requirements of the aim

pursued.” Jd. at paras. 43, 56. Similarly, in Case C-476/99

Lommers v. Minister van Landbouw Natuurbeheer en

Visserij, |2002) IRLR 430 (E.C.J. 2002), the European

Court of Justice found that the Dutch Ministry’s program

reserving a limited number of subsidized places for female

officials was proportional and compatible with the Euro-

pean Community Equal Treatment Directive 76/207 since

it did “not totally exclude male officials from its scope” and

promoted the employment of a previously underrepre-

sented group.

Other countries also permit race-conscious and

gender-conscious programs to correct systemic under-

representation of minority populations.

14

The Canadian Charter of Rights and Freedoms,

permits governmental programs to redress past discrimi-

nation, and its equal protection provision specifies that the

Charter “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. (Constitu-

tion 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 addition, the Canadian Human Rights Act of 1985

(R.S.C. 1985, c. H-6, s. 16) and Employment Insurance Act

of 1996, Part II Employment Benefits and National Em-

ployment Service (S.C. 1996, c. 23, s. 60) both exclude from

the definition of prohibited discrimination special pro-

grams “designed to prevent disadvantages that are likely

to be suffered by, or to eliminate or reduce disadvantages

that are suffered by, any group of individuals when those

disadvantages would be based on or related to the prohib-

ited grounds of discrimination, by improving opportunities

respecting goods, services, facilities, accommodation or

employment in relation to that group.”

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 promo-

tion 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 — far more inter-

ventionist than the voluntary school integration programs

at issue here — required hiring at least one woman for

15

every four positions traditionally filled by men until

women had achieved greater representation. Jd. 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 dis-

crimination under apartheid, the experience for Africans

was significantly worse, and compensating for this long-

standing mistreatment of African applicants to the medi-

cal school did not represent unfair discrimination against

Indian students under the constitution. Jd. at *28.

South African legislation also reflects a commitment

to the adoption of polices to redress past educational

discrimination and promote equality. In South Africa, the

Schools Act 84 of 1996 (No. 27 of 1996), Section 34(1),

requires ejuitable funding of public schools in order to

ensure the “proper exercise” of the right to education and

to redress past inequalities; the Promotion of Equality and

Prevention of Unfair Discrimination Act, 2000 (4 of 2000),

Section 25, requires the state to take measures and

implement programs to promote equality and where

necessary or appropriate develop action plans to address

unfair discrimination; and the Employment Equity Act

16

(No. 55 of 1998), Sections 6(2)(a) and 15(3), states that it is

not unfair discrimination to “take affirmative action

measures consistent with the purposes of this Act” if such

measures “include preferential treatment and numerical

goals, but exclude quotas.”

In India, the Indian Constitution of 1950 and its

subsequent amendments set forth a comprehensive equal-

ity doctrine that has laid the foundation for extensive

affirmative action measures through a system of quotas

(referred to as “reservations”) in the areas of higher

education and participation in government employment to

remedy past injustices against members of the lower levels

of India’s caste system as well as other historically-

disadvantaged groups. The Constitution reserves seats for

members of India’s most disadvantaged social castes and

tribes (known in Ugal parlance as “scheduled castes” and

“scheduled tribes”) in the House of the People, state

legislative assemblies, and local governmental units

(Indian Const. Arts. 243D, 243T, 330, 332) and permits the

government to “reserve” civic “appointments or posts” for

members of “any backward class of citizens which, in the

opinion of the State, is not adequately represented in the

services under the State” (Indian Const. Art. 16(4)) and

make “promotion(s], with consequential seniority,” of

members of historically underrepresented castes and

tribes to governmental positions. (Indian Const. Art.

16(4A)).

In response to a legal challenge to affirmative action

over a half century ago in State of Madras v. Champakam

Dorairajan, A.1.R. (S.C.) 226 (1951), India amended

its Constitution in 1951 to affirm its commitment to

affirmative action. “Nothing in [the constitution’s anti-

discrimination provisions] shall prevent the State from

17

making any special provision for the advancement of any

socially and educationally backward classes of citizens or

for the [lowest castes and tribes].” (Indian Const. Art.

15(4); see also Indian Const. Art. 29).

Since 1963, the Indian Supreme Court has consis-

tently upheld the constitutionality of affirmative action

programs in the higher education and governmental

employment contexts, including the endorsement of a

quota system that allows up to fifty percent of positions to

be reserved for members of historically disadvantaged

groups, going far beyond the ameliorative measures

voluntarily adopted by Jefferson County and Seattle. (See

Balaji v. State of Mysore, A.I.R. (S.C.) 649 (1963); see also

Devadasan v. Union of India, A.I.R. (S.C.) 179 (1964)

(affirming Balaji fifty percent ceiling in context of carrying

forward unfilled reserved positions in government em-

ployment); Jndra Sawhney v. Union of India, A.LR. (S.C.)

477 (1993)).

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. In

New Zealand and Australia, for example, affirmative

action programs are permitted by statute. See New Zea-

land Bill of Rights Act 1990, § 19, 1990 S.N.Z. No. 109;

Human Rights Act 1993, 1993 S.N.Z. No. 82 §§ 58, 73(1)

(New Zealand); Racial Discrimination Act 1975, § 8(1)

(Austl.); see also Gerhardy v. Brown (1985) 159 C.L.R. 70

(Austl.). In Northern Ireland, past religious discrimination

is addressed through legislation that requires taking

religion into account in order to promote a more integrated

police force. Specifically, the Police (Northern Ireland)

Act 2000, ¢.32, § 46/1) requires that in recruitment or

appointment of trainees, appointments shall be made from

18

a pool of qualified applicants of whom “one half shall be

persons who are treated as Roman Catholic.” Re Parsons:

Application for Judicial Review, [2003] NICA 20; [2004] NI

38 (N. Ir.) (affirmative action in police recruitment did not

violate applicant’s right to freedom of religion). See also

Committee on the Elimination of Racial Discrimination:

Addendum by Israel, at 99485, 486 U.N. Doc.

CERD/C/47V/Add. 2 (2005) (describing recent Israeli

educational programs to redress past marginalization of

Arabs and to “lower[] the walls that separate [Arab and

Jewish] societies,” so that Arabs can “achieve success in

higher educational institutions and reach full integration

in the public daily life and economy of the country”);

Herbert M. Jauch, Affirmative Action in Namibia 53-148

(1998) (detailing history of affirmative action in Namibia).

This Court has recently reaffirmed the relevance of

international legal norms to its proceedings: “The opinion

of the world, while not controlling our outcome, does

provide respected and significant confirmation for our own

conclusions.” Roper v. Simmons, 543 U.S. 551, 578 (2005)

(Kennedy, J.). Accordingly, the legal analyses applied by

other countries to uphold successful affirmative action and

other race- and gender-conscious policies for groups, like

racial minorities in the United States, that have suffered

past discrimination should inform this Court as it ad-

dresses similar issues, including the voluntary efforts

made by public school districts in the United States to

promote the racial integration of their schools for articu-

lated benefits to all students and their communities.

19

Ill. INTERNATIONAL TREATIES SUPPORT CON-

SIDERATION OF RACE AS A FACTOR IN

SCHOOL ASSIGNMENT

Widely ratified international human rights treaties

also represent the cumulative wisdom and experience of

nations across the globe. Two treaties are of particular

relevance here — the International Covenant on Civil and

Political Rights’ (hereinafter “ICCPR,” which has been

ratified by 157 nations) and the International Convention

on the Elimination of All Forms of Racial Discrimination’

(hereinafter “CERD,” which has been fratified by 170

nations). Together these treaties, both of which have been

ratified by the United States, and are the supreme law of

the land, represent the international consensus on what

constitutes racial discrimination. As such, they provide

guidance as courts examine local authorities’ remedial

efforts to provide equal access to our nation’s education

system."

* Adopted and opened for signature December 16, 1966, 999

U.N.TS. 171.

* Adopted and opened for signature December 21, 1965, 660

U.N.TS. 195.

* As stated in the Supremacy Clause, “all Treaties made... under

the Authority of the United States shall be the supreme Law of the

Land; and the Judges in every State shall be bound thereby, any Thing

in the Constitution or Laws of any State to the Contrary notwithstand-

ing.” U.S. Const. Art. VI, cl. 2. See also Restatement (Third) of Foreign

Relations Law § 115(b) Reporter’s Note (1987) (“That a rule of interna-

tional law or a provision of an international] agreement is superseded as

domestic law-does not relieve the United States of its international

obligation or of the consequences of a violation of that obligation.”).

20

A. The ICCPR and CERD Make Clear that

Race-Conscious Policies Designed to Create

Diversity Are Not Discriminatory

Both the ICCPR and CERD require parties to the

covenants to abstain from engaging in “racial discrimina-

tion.” The ICCPR guarantees rights without distinction

based on race, ICCPR art. 2(1), 999 U.N.T.S. 173, and

CERD prohibits conduct that would have the “purpose or

effect of nullifying or impairing the recognition, enjoyment

or exercise, on an equal footing, of human rights and

fundamental freedoms in the political, economic, social,

cultural or any other field of public life,” CERD, art. 1, 660

U.N.T.S. at 216. See ICCPR, art. 26, 999 U.N.T:S. at 179.

The CERD also states that parties to the treaty, “condemn

racial segregation and apartheid and undertake to pre-

vent, prohibit and eradicate all practices of this nature in

territories under their jurisdiction,” CERD art. 3, 660

U.N.T.S. at 218, and “undertake . . . to guarantee the right

of everyone, without distinction as to race, colour, or

national or ethnic origin, to equality before the law ... in

the enjoyment of... [the] right to education and training”

CERD art. 5(e)(5), 660 U.N.T:S. at 222. See Convention on

the Elimination of All Forms of Racial Discrimination,

Gen. Rec. No. 19, Racial segregation and apartheid, paras.

2-4, U.N. CERD Comm., 47th Sess., UN. Doc. A/50/18

(Aug. 8, 1995). Finally, the CERD’s general provisions

prohibit all forms of racial discrimination, see CERD, arts.

2-5, 660 U.N.T.S. at 216-22. Thus, the treaties provide

comprehensive protection against discrimination.

Yet, the Human Rights Committee, which is the

formal monitoring body for the ICGPR,° has noted that

* As a means for regulating compliance with the treaty, the terms

of the ICCPR set up a Human Rights Committee (the “Committee”).

(Continued on following page)

21

“not every differentiation of treatment will constitute

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.”

[emphasis added] 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 Human Rights 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... .

General Comment 18, para. 10.

Similarly, the CERD specifically states that:

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 free-

doms shall not be deemed racial discrimination,

provided, however, that such measures do not, as

a consequence, lead to the maintenance of sepa-

rate rights for different racial groups and that

Parties to the ICCPR submit reports to the Committee on the measures

adopted pursuant to the treaty. ICCPR, art. 40, 999 U_N.TS. at 181-82.

Following a review of the reports, the Committee issues concluding

observations that often include recommendations for addressing

concerns raised by the Committee.

22

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; see also Grutter v.

Bollinger, 539 U.S. 306, 344 (2003) (Ginsberg, J., concur-

ring) (stating that the CERD endorses “special and con-

crete measures” to ensure the rights outlined in the

CERD, until such objectives have been achieved).

When the Senate ratified the CERD, it recognized

that race may 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. 721, 722 (1994).

The managed-choice programs at issue here are

clearly both reasonable and objective; they are carefully

designed to limit the use of race in school assignment to

the extent necessary to achieve the goal of school integra-

tion, and they do not permit exercise of informal discretion

that might mask discriminatory bias. More importantly,

the programs are well designed to achieve the central

purpose of the covenants, which is to prevent discrimina-

tion. They do not in any way lead to the “maintenance of

separate rights for different racial groups.” See CERD, art.

1(4), 660 U.N.T.S. at 216. They represent the most modest

of race conscious’ remedies, and they stop far short of

providing special preferences or benefits to one racial

23

group. The program benefits all students and, indeed, the

entire community, by creating non-discriminatory and

diverse school environments. Indeed, the Jefferson County

and Seattle school districts have continually and repeat-

edly determined that integrated educational environments

lead to people of all racial backgrounds leading richer

lives. The Jefferson County Board of Education has

explained that one of its educational goals is to ensure

that all students in the district are, “safe, supported,

respected and confident in racially integrated schools,

classrooms and student activities.” Joint Appendix 22.

B. The Managed-Choice Programs Are Consis-

tent with the Obligations of the United

States Under the ICCPR and CERD

Upon ratification of the ICCPR and CERD, the Senate

acknowledged that it is the responsibility of both our state

and local governments to ensure the principles set forth in

these treaties.* It is also the expectation of the interna-

tional community. For example, parties to the ICCPR are

obligated to undertake the “necessary steps ... to adopt

such laws or other measures as may be necessary to give

effect to the rights recognized” in the treaty. ICCPR, art.

2(2), 999 U.N.T.S. at 173. Likewise, Article 2(1)(a) of the

CERD provides that “[eJach State Party undertakes... to

ensure that all public authorities and public institutions,

national and local, shall act in conformity” with their

* U.S. Reservations, Understandings, Declarations, and Proviso,

ICCPR, 138 Cong. Rec. S4781-01 (daily ed. April 2, 1992), 11(5); see also

U.S. Reservations, Understanding, Declarations, and Proviso, CERD,

140 Cong. Rec. S7634-02 (daily ed. June 24, 1994), II.

24

obligations under the treaty. CERD, art. 2, 660 U.N.T.S. at

218. The programs at issue in the instant case, which do

not even involve preferential treatment, are appropriate

local measures to realize the principle of non-

discrimination.

Indeed, the Human Rights Committee recently ad-

dressed the issue of de facto racial segregation in United

States public schools.” The Committee noted that de facto

racial segregation had resulted from housing patterns and

the manner in which school Cistricts are created, funded

and regulated. It expressed concern that the United States

“had 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.” Jd. at 923. The

Committee reminded the United States “of its obligation

under articles 2 and 26 of the {[ICCPR] to respect and

ensure that all individuals are guaranteed effective

protection against practices that have either the purpose

or the effect of discrimination on a racial basis.” Finally,

the Committee recommended that “(t]he [United States]

should conduct in-depth investigations into the de facto

segregation described above, and take remedial steps, in

consultation with the affected communities.” Jd. The steps

taken by the Seattle and Jefferson County school districts

are precisely the type of measured remedial actions called

for by the Committee, and by the ICCPR, in response to de

facto segregation.

” Human Rights Committee, Consideration of Reports Submitted

by the States Parties Under Article 40 of the Covenant, 87th Sess., U.N.

Doc. CCPR/C/USA/CO/3 (2006).

25

Carefully crafted managed-cheice programs tailored to

ensure equal enjoyment of rights by all racial groups are

thus permissible and even endorsed under the ICCPR and

CERD.

C. Self-Execution Is Not an Issue Where, as

Here, the Treaty Provisions Are Cited as

Aids to Interpretation

When the United States ratified the ICCPR and

CERD, it included reservations that many, but not all, of

the articles are “non-self-executing.” Louis Henkin et al.,

Human Rights 784-86, 1043-44 (1999). A non-self-

executing treaty requires additional legislation in order for

it to be enforceable by a litigant in Court. While the

Human Rights Committee has questioned the validity of

such reservations in connection with a human rights

treaty (see ICCPR, General Comment Adopted Under

Article 40 on Issues Relating to Reservations Made Upon

Ratification or Accession to the Covenant or the Optional

Protocols, or in Relation to Declarations Under Article 41

of the Covenant (Adopted, November 2, 1994), 34 1.L.M.

839 (1995) (General Comment 24)), the propriety of such

reservations need not be resolved here. The amici cite the

provisions of the ICCPR and CERD not as the foundation

for their legal claims, but rather as interpretive support

for their position that the school districts’ managed-choice

programs do not violate the United States Constitution.

As explained in detail above, this Court has looked to

international law to provide guidance in various areas of

jurisprudence. Even where treaties are viewed as “non-

self-executing,” they may be used indirectly as aids for

interpretation of other laws, defensively in civil or crimi-

nal contexts, or — as here — to support race-conscious

26

managed-choice school integration policies. 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); Connie de la Vega, Civil Rights During the 1990s:

New Treaty Law Could Help Immensely, 65 U. Cin. L. Rev.

423, 456 n.206, 460, 467-68, 470 (1997); Joan Fitzpatrick,

The Preemptive dnd Interpretive Force of International

Human Rights Law in State Courts, 90 Am. Soc’y Int'l L.

Proc. 259, 262, 264 (1996). In an effort to best understand

the need for these programs, their benefits to our commu-

nities, and their narrow limits in application, the Court

may appropriately consider these treaties here.

+

27

CONCLUSION

For all of the foregoing reasons, as well as those set

forth in the briefs of Respondents, the decisions of the

courts below should be affirmed.

Respectfully submitted,

CYNTHIA J. LARSEN

(Counsel of Record)

CLIFFORD R. MICHEL

MARLENE A. ZARFES

E. ANNE HAWKINS

SUSAN COLLIER

ORRICK, HERRINGTON &

SUTCLIFFE LLP

Attorneys for Amici Curiae

Interested Human Rights

Clinics and Organizations

Of counsel

MARTHA F. Davis

NORTHEASTERN UNIVERSITY

SCHOOL OF LAW

CYNTHIA SOOHOO

CAROLINE BETTINGER-LOPEZ

COLUMBIA LAW SCHOOL HUMAN

RIGHTS CLINIC

CATHERINE ALBISA

NATIONAL ECONOMIC AND SOCIAL

RIGHTs INITIATIVE

Dated: October 10, 2006