FORUM
 JURIST >> OPINION >> Forum >> Going Global ... 

覧覧覧覧覧覧覧覧覧覧覧覧覧覧
GOING GLOBAL WITH AFFIRMATIVE ACTION
Noah Leavitt, Esq.[1]
JURIST Guest Columnist

The Supreme Court痴 rulings in the Michigan affirmative action cases have been called the most significant civil rights decisions in the past twenty-five years.[2] Yet, the Court痴 decisions - upholding the Law School痴 policy while striking down the undergraduate college痴 policy - seem, as Justice Scalia wryly noted, 菟erversely designed to prolong the controversy and the litigation.納3] The cases will surely provide legal scholars, educational institutions, businesses, policy makers, pundits and lawyers with countless hours of work deciphering the elusive new standards under which race may be taken into account in American society.

One noteworthy aspect of the cases is the heightened level of respect the Court apparently accords to international law. In their important concurrence in the Law School decision, Justices Ginsburg and Breyer implied that U.S. laws that agree with their international equivalents are more likely to be upheld by the Court than those that disagree.

The two Justices stated that 甜t]he Court痴 observation that race-conscious programs 僧ust have a logical end point着 accords with the international understanding of the office of affirmative action.納4] They noted that the International Convention on the Elimination of All Forms of Racial Discrimination, ratified by the United States in 1994, endorses 壮pecial 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.端5]

In addition, in their sharp dissent in the undergraduate case, Justices Ginsburg and Souter drew on 田ontemporary human rights documents to distinguish policies of oppression from measures designed to accelerate de facto equality.[6] Taken together, this language is the Court痴 strongest statement to date supporting the important and growing links between domestic and international law, especially with regard to affirmative action and antidiscrimination measures.

It is possible that Justices Ginsburg, Breyer and Souter痴 efforts to interpret U.S. law with reference to relevant international agreements and decisions may be among the most quoted lines in the Court痴 decisions. In fact, Grutter and Gratz may come to be regarded as an early victory in the movement to convince the Court of the important links between domestic and international law, much like the Court痴 1938 decision in Gaines was an early step toward getting the Court to strike down its long-held 都eparate but equal jurisprudence in their landmark 1954 Brown v. Board of Education decision.[7]

Going Global

Now that the Supreme Court has ruled, some are claiming that the legal battle over affirmative action in America is finished. In a narrow sense, they are quite correct, as there are no higher domestic courts to which the litigants can appeal.

In another sense, however, they are quite mistaken. The parties are now free to debate this important civil rights issue using international law. Because international legal machinery is typically available only after parties have exhausted their domestic remedies such as a Supreme Court ruling regional and international tribunals can only now consider the Michigan cases. And, although rulings by these bodies would not necessarily bind U.S. courts, they could significantly influence the shape of the debate which is far from finished in our increasingly diverse American society.

Incredibly, this aspect of the cases has not been discussed. Yet, taking the Michigan arguments to the international sphere would be part of a long line of efforts using this strategy, beginning in the middle of the 20th century and continuing through recent events such as the Durban Racism Conference.[8] Moreover, international law can be utilized by anyone. Barbara Grutter, Jennifer Gratz and Patrick Hamacher are just as free to bring their arguments to the international legal arena as NAACP members.[9]

Were the parties to the Michigan cases to bring their arguments before these other courts, they could achieve several results. First, and some (including at least one of JURIST Forum's Contributing Editors) have argued most importantly, they would highlight the fact that the United States approach to affirmative action might be violating its international obligations.[10] Second, they would demonstrate the growing interrelationships between domestic civil rights battles, international law, and U.S. politics. Third, they would participate in a growing trend in American law where a movement is beginning that will dramatically influence the next generation of America痴 culture wars.

Taking Civil Rights Cases in Two Directions

Two related components characterize this movement.[11] First, American lawyers have started bringing international law claims into their domestic legal arguments.[12] Second, these lawyers have started taking their U.S. cases to international and regional tribunals.

A recent example illustrates the first component. Demore v. Kim was a 2003 Supreme Court decision addressing whether Mr. Hyung Joon Kim, a lawful permanent resident, should have been provided certain due process rights relating to his detention status.[13] Several immigrant advocacy organizations filed an amicus brief on behalf of Mr. Kim describing relevant international and foreign law surrounding arbitrary detention.[14] As it has usually done, the Supreme Court dismissed these arguments (and ruled against Mr. Kim).[15]

Yet, the Court痴 rejection in this case and its stated opposition to this approach and others like it only seems to embolden advocates rather than frustrate them.[16] This October, for the first time ever, a national conference will teach American lawyers how to use international law in U.S. courts.[17] The conference organizers are working under the assumption that judges will become more receptive to such arguments the more they learn about relevant international law.[18] Justice Ginsburg will likely receive a standing ovation at this event.

The second component of this movement is that some civil rights advocates are also bringing an increasing number of American disputes before international and regional tribunals. Rulings by these bodies may not necessarily be binding in the United States they cannot, for example, overrule Supreme Court decisions. However, such decisions may help support other types of campaigns to lessen the sting of rulings such as Kim.

One example can be seen in the recent docket of the Inter-American Court of Human Rights in Santiago, Chile. There, on June 4, American and Mexican lawyers raised arguments in response to a recent U.S. Supreme Court decision Hoffman Plastic limiting certain rights of organized laborers.[19]

The Inter-American Court is the principal international tribunal for North and South America. Its primary mission is to interpret and apply the 1969 American Convention on Human Rights. Most of the countries in the Americas, including the U.S., have either signed or ratified the American Convention, or else they are bound by it because of their membership in the Organization of American States. The Court has advisory jurisdiction, which allows it to rule on the compatibility of domestic laws of member states with international human rights treaties. The U.S. has a mixed compliance record with the Court痴 decisions, but rulings against the United States have served to catalyze other types of advocacy strategies and organizing efforts.

The Supreme Court in Hoffman Plastic held that undocumented immigrants who were fired because they participated in union activities are not entitled to back pay under the National Labor Relations Act.[20] One effect of the decision was to create a loophole for companies who hire undocumented workers because they could not fire their employees with greater impunity. Advocates for low-income and undocumented workers fear that Hoffman will be used to further undermine the rights of this vulnerable sector of the labor force.[21]

Surprisingly, the Supreme Court may have left open a way around its decision. The dissent stated that Congress retained the authority to change the law if it believes that holding employers accountable for illegal acts 塗elps to deter unlawful activity that both labor laws and immigration laws seek to protect.納22]

Advocates read this language as an invitation to develop legislative strategies to undo some of Hoffman痴 controversial provisions. Specifically, they decided to 堵o global by taking their dispute out of the U.S. court system and into the regional human rights system. As one component of this strategy, a group of lawyers asked the Inter-American Court for an opinion as to whether international labor law is broken by a nation痴 decision to limit workers legal remedies based on their documentation and immigration status.

Thus, while not necessarily binding, such an opinion could catalyze changes in American law. Because four justices in Hoffman suggested a possible legislative fix, advocates now view a decision by the Inter-American Court stating that the U.S. is out of compliance with international law as an important source of pressure on domestic legislators.

The Hoffman example shows that some American lawyers are not letting 斗osing decisions stop their struggle for justice for their clients. This should be no different in the realm of race relations.

Affirmative Action, Racial Equality and International Law

The Michigan decisions present the next major opportunity for advocates on all sides of the affirmative action debate to draw upon international law. People unsatisfied with the Michigan decisions should consider raising their claims under international and regional legal regimes, where affirmative action cases have been litigated for decades.[23] In some instances treaty law may even require the use of affirmative action policies and programs to remedy certain racial imbalances,[24] including the realm of education.[25]

Two treaties ratified by the United States permit race-based distinctions to redress past discrimination and promote the values of diversity: the Convention on the Elimination of All Forms of Racial Discrimination and the International Convention on Civil and Political Rights. The United States has committed itself, by becoming a party to these treaties, to take such affirmative steps necessary so as to ensure that the equal enjoyment of rights is guaranteed to every racial group and the members of those groups.

Treaty law is significant because of its authority in U.S. law. Ratified treaties become the "supreme Law of the Land" and are equal in stature to the U.S. Constitution.[26] Moreover, it is a well-known doctrine of statutory construction that federal law must not be interpreted in a way that will violate international law if another such construction is available.[27]

First, the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) is the principal UN treaty dealing with discrimination on grounds of race. As Justice Ginsburg noted, of particular relevance to the Michigan cases is the ICERD allowing certain 都pecial measures樗 to be used to secure 殿dequate advancement of marginalized racial or ethnic groups.[28] The ICERD, one of the very few human rights instruments the U.S. has both signed and ratified, sets certain standards for governments at the national, state, and local level to address racial discrimination in a wide range of areas.[29]

The United States, which as a party to the Convention, is required to monitor efforts toward eliminating racial discrimination through data collection and evaluation and provide written reports on their progress every other year. It is also required to "take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists." The U.S. government filed its first report in September 2000, which was five years overdue.[30]

Second, and not noted by Justice Ginsburg, the International Covenant on Civil and Political Rights, a fundamental human rights treaty ratified by the United States, contains specific anti-discrimination norms prohibiting distinctions based on race.[31] Ratifying states must both 途espect and 兎nsure all of the rights without discrimination based on 途ace, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Some of these rights include the right to equality before the courts (Article 14), the prohibition by law of advocacy of racial hatred that constitutes incitement to discrimination (Article 20) and equality and equal protection before the law (Article 26). Some scholars have argued that the ICCPR has been construed by the United Nations Human Rights Committee and the United States Senate to permit affirmative action.[32]

Closer to home, Articles 1 and 24 of the American Convention on Human Rights are relevant. As noted above, the U.S. is obligated to give due weight to the Inter-American Court痴 decisions. Recently, American civil rights groups have been approaching the Court for opinions on issues such as welfare reform[33] and the racial disparity of the death penalty.[34]

Each of these different treaties and courts has its own set of rules and procedures governing the conditions under which parties can raise claims. While at first sorting out these various processes may seem daunting, advocates can easily learn how to file petitions and stay alert to various statutes of limitations.[35]

The new legal development described above teaches that an unfavorable Supreme Court decision does not necessarily mean the end of important legal debates. This development also suggests that civil rights struggles no longer stop at our nation痴 borders. In fact, the complexity of the two Michigan decisions means that parties on both side of the affirmative action debate may want to pursue claims using international law. The Michigan cases could catalyze new strategies among civil rights leaders of all political outlooks -- in the future, they will need to add 堵oing global to their toolboxes. And, with the Supreme Court痴 apparent willingness to consider international law arguments in important decisions like the affirmative action cases, there is no better place to start than in our own national judiciary.



[1] Attorney Noah Leavitt writes frequently on international legal issues. He was a delegate to the UN Word Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance in Durban, South Africa, as well as regional follow-up meetings in Mexico City and Paris. He can be contacted at nsleavitt@hotmail.com.
[2] See David Stout, 鉄upreme Court Splits on Diversity Efforts at University of Michigan, New York Times, June 23, 2003.
[3] Barbara Grutter v. Lee Bollinger et. al., 2003 WL 21433492 (U.S.), at 25.
[4] Id., at 14.
[5] Id.
[6] Jennifer Gratz and Patrick Hamacher v. Lee Bollinger, et. al., 2003 WL 21434002 (U.S.) at 23.
[7] Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938). There, the Supreme Court decided in favor of Lloyd Gaines, a black student who had been refused admission to the University of Missouri Law School, holding that the state must furnish Gaines "within its borders facilities for legal education substantially equal to those which the State there offered for the persons of the white race, whether or not other Negroes sought the same opportunity."
[8] For a history of the early efforts in this direction, see Carol Anderson痴 new book Eyes Off the Prize: The United Nations and the African American Struggle for Human Rights, 1944-1955, 2003. For a look at the Durban Conference and subsequent meetings, see Noah Leavitt, 泥urban, Gone But Not Forgotten: Global Anti-Discrimination Efforts in a Difficult Year, J. of the Int値 Inst., University of Michigan, Fall 2002
[9] If Justice Thomas痴 dissent in the Law School case 鍍he majority has placed its imprimatur on a practice that can only weaken the principle of equality embodied in the Declaration of Independence and the Equal Protection Clause represented the view of the unsuccessful plaintiff Grutter (Law School case) and the partially unsuccessful plaintiffs Gratz and Hamacher (undergraduate college case), they may want to bring their interpretation of America痴 civil rights law to another arena. Grutter at 35.
[10] Marjorie Cohn, 鄭ffirmative Action and the Equality Principle in Human Rights Treaties: The United States Violation of Its International Obligations, 43 Va. J. Int値 L. 249 (2002).
[11] This article does not address the related but distinct debate on cases raising Alien Tort Claims arguments, as these involve using American law in American courts to address human rights violations in other countries.
[12] See, e.g., Joan Fitzpatrick, 典he Preemptive and Interpretive Force of International Human Rights Law in State Courts, 90 Proc. Am. Soc. Int'l L. 262 (1996)
[13] Demore v. Kim, 123 S.Ct. 1708 (Apr. 29, 2003).
[14] See Brief of Amici Curiae, International Human Rights Organizations in Support of Respondent. Online at http://archive.aclu.org/court/kim_ihr_amicus.pdf.
[15] Justice Ginsburg has lamented the Supreme Court痴 reticence to: (1) address international law arguments; (2) look at foreign courts logic for adjudicating issues; and (3) consider international treaty law. See e.g., Ruth Bader Ginsburg and Deborah Jones Merritt, 鏑ecture: Fifty-First Cardozo Memorial Lecture輸ffirmative Action: An International Human Rights Dialogue, 21 Cardozo L. Rev. 253, 282 (1999).
[16] 典his Court痴 Eighth Amendment jurisprudence should not impose any foreign moods, fads or fashions on Americans. Justice Clarence Thomas, quoted in the New York Times, October 22, 2002, at A22.
[17] 滴uman Rights at Home: International Law in American Courts, http://www.aclu.org/Events/Events.cfm?ID=12222&c=240&date=10-10-2003.
[18] The fact that the American Society of International has recently developed a judicial outreach program seems to underscore this point. See their 2002 Annual Report, online at http://www.asil.org/newsletter/news.pdf.
[19] See, 的nternational Court to Hear Argument on U.S. Workers Rights Violation, http://www.nelp.org/news/pressreleases/prim052903.cfm.
[20] Hoffman Plastic Compounds, Inc. v. NLRB, 122 S.Ct 1275 (2002).
[21] See, e.g., 鄭ssessing the Impact of the Supreme Court Decision in Hoffman Plastic Compounds v. NLRB on Immigrant Workers and Recent Developments, by the National Immigration Law Center and the National Employment Law Project, online at http://www.nilc.org/immsemplymnt/Hoffman_NLRB/Hoffman_NELP_NILC_FINAL.PDF.
[22] Justice Breyer痴 dissent, joined by Justices Stevens, Souter and Ginsburg.
[23] See e.g., Using the International Human Rights System to Combat Racial Discrimination: A Handbook, Amnesty International, 2001.
[24] See e.g., Connie de la Vega, 鼎ivil Rights During the 1990s: New Treaty Law Could Help Immensely, 65 U. Cin. L. Rev. 423, 471 (1997) (noting that rights protected in treaty law are more protective of individuals rights that those in state and federal constitutions and statutes, a fact 努hich is exemplified by issues surrounding affirmative action.)
[25] See e.g., Katarina Tomasevski, 泥iscrimination in Education, in United to Combat Racism, UNESCO, 2001 (the author is the Special Rapporteur on the Right to Education for the U.N. Commission on Human Rights).
[26] U.S. Const. art. VI, cl. 2. See also Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804) (Chief Justice Marshall).
[27] Section 114, Restatement (Third) of the Foreign Relations Law of the United States (1987).
[28] American Convention on Human Rights, O.A.S.Treaty Series No. 36, 1144 U.N.T.S. 123 entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992).
[29] Advocates have used ICERD to establish human rights standards for addressing racism and racial discrimination at the local level. Issues like police brutality, access to services, prison conditions and even death penalty issues that often have disparate racial impact have been framed and concretely addressed using ICERD as a tool.
[30] A copy of the U.S. report can be found on line at http://www.state.gov/www/global/human_rights/cerd_report/cerd_toc.html.
[31] 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.
[32] See, e.g., 釘rief Of Amicus Curiae Now Legal Defense And Education Fund In Support Of Defendants And Intervenors, online at http://www.umich.edu/~urel/admissions/legal/gru_amicus/gru_now.html.
[33] Poor People's Economic Human Rights Campaign vs. the United States of America, filed October 1, 1999 (attempting to hold the United States accountable for economic human rights abuses being caused by downsizing, poverty and welfare reform). Read online at http://www.kwru.org/updates/IACpetition.pdf.
[34] William Andrews v. United States, Case 11.139, Report No 57/96, Inter-Am. C.H.R., OEA/Ser.L/V/II.95 Doc. 7 rev. at 570 (1997).
[35] There is a growing literature on this topic. A comprehensive starting point is the GUIDE TO INTERNATIONAL HUMAN RIGHTS PRACTICE (Hurst Hannum ed., 3d ed. Transnational 1999).


Noah Leavitt is an attorney and commentator who writes frequently on international legal issues. He is a graduate of the University of Michigan Law School.

June 25, 2003

GUEST COLUMNIST

JURIST Guest Columnist Attorney Noah Leavitt writes frequently on international legal issues, and is a graduate of the University of Michigan Law School. He was a delegate to the UN World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance in Durban, South Africa, as well as regional follow-up meetings in Mexico City and Paris. He can be contacted at nsleavitt@hotmail.com.