Sunday, June 26, 2016
The United States Supreme Court’s Ruling in Fisher Helps to Promote U.S. Treaty Obligations
By HRA Board Member Connie de la Vega
[originally posted on Human Rights at Home Blog]
The U.S. Supreme Court upheld the University of Texas’ admission program that considers race as one of seven factors in the second part of its undergraduate admissions’ system. This is a supplemental blog to the one covering the majority opinion. That blog is available at: https://casetext.com/posts/much-ado-about-nothing
The majority opinion by Justice Kennedy, which was joined by Justices Ginsburg, Breyer and Sotomayor did not raise the applicable treaty and international law that was raised in the amicus brief of Human Rights Advocates, the Poverty & Race Research Action Council, the Advocates for Human Rights, the University of Minnesota Human Rights Center, and the US Human Rights Network. This blog will address how the treaty and international law is applicable to the case and how it related to the majority opinion.
As Amici noted, international law and opinion have informed the law of the United States since the adoption of the Declaration of Independence. The Founders were greatly influenced by international legal and social thought, and throughout the history of the United States, courts have referred to international standards when considering the constitutionality of certain practices.
In this case, holistic consideration of race in admissions decisions to universities is consistent with the United States’ treaty obligations as well as international practice, which makes it all the more compelling. Indeed, the review bodies for two treaties that the United States is party to have urged the United States to undertake special and remedial measures to eradicate de facto discrimination in schools. Other independent international law experts have counseled the United States to do the same. The European Court of Justice and the national courts of other countries have also upheld affirmative action measures in relation to addressing racial disparities in higher education. The international treaties and practice support the University of Texas’s approach to admissions and they should be considered when assessing its validity under the Fourteenth Amendment.
The United States (U.S.) ratified the Convention on the Elimination of All Forms of Racial Discrimination (CERD) in 1994. CERD requires State Parties to take affirmative steps to achieve the goals of eliminating racial discrimination. The special measures taken for the purpose of securing advancement of racial or ethnic groups are not deemed racial discrimination under Article 1(4) and indeed are mandated under Article 2(2). Under General Recommendation No. 32, the laws or policies to address the situation of disfavored groups should be used to address both de jure and de facto discrimination. In other words Parties are required to address not only intentional discrimination but discriminatory effects as well. (¶¶ 14 and 22.)
The CERD Committee has raised the importance of special measures in its review of countries’ compliance with the treaty, particularly in the field of education. The U.S.’ policies on education have been the subject of concern for the Committee. While it cited Grutter as a positive step in addressing inequality in education in its 2007 review of the United States 6th periodic report, in its Concluding Observations in 2008, the Committee observed that the U. S. had not done enough to enact special measures to eradicate de facto discrimination in schools. Paragraph 17 of the Concluding Observations specifically framed this issue in the context of the “strict scrutiny” standards under the United States Constitution. In its Concluding Observations of the U.S.’ 7th-9th reports issued in 2014, the Committee reiterated its previous recommendations that the U.S. adopt and strengthen the use of special measures.
The U.S. ratified the International Covenant on Civil and Political Rights (ICCPR) in 1992. In its 2006 review of the United States, the Human Rights Committee that oversees compliance with the ICCPR expressed concern over de facto racial discrimination in its public schools and reminded the U.S. of its obligations under articles 2 and 26 to guarantee effective protection against practices with discriminatory effects. In its report to the Human Rights Committee in 2011, the U.S. State Department acknowledged that special measures in higher education serve to uphold the “equal and inalienable rights” in the ICCPR.
The University of Texas argued throughout both Fisher cases that it seeks to admit a “critical mass” of minority students to its undergraduate programs through a holistic, individualized admissions process. After conducting studies to assess whether the University was obtaining the educational benefits of diversity that result from a critical mass of underrepresented minority students, it implemented an admission program that would consider race as one of the many factors in making admissions decisions. Amici argued that this program complied with CERD’s requirements that special measures be “appropriate to the situation to be remedied, be legitimate … [and] respect the principles of fairness and proportionality” as defined in General Recommendation No. 32, ¶ 16.
By upholding the University of Texas’ admissions program, the U.S. Supreme Court’s decision is in compliance with the U.S.’ obligations under both treaties as well as the practice of other jurisdictions such as the European Court of Justice and legal decisions and laws in countries such as Brazil, South Africa, India, Canada, New Zealand, and Australia. While the focus of its decisions on this topic have been on achieving diversity, and not necessarily achieving equality as required by the treaties, Fisher helps to promote the U.S.’ obligations under two treaties it is party to.
 Professor of Law, University of San Francisco. Professor de la Vega was lead counsel on an amicus curiae brief in both Fisher cases raising the applicable treaty and international law.