The pervasive realities of racial inequality remain a part of daily life for millions in the United States. But those harms did not factor into the Supreme Court’s decision this summer to upend college admissions practices by striking down the race-conscious procedures that Harvard College and the University of North Carolina (UNC) had adopted for selecting incoming undergraduate students. The Court’s opinion is a serious blow to the constitutional basis for affirmative action, but the United States still remains bound to adopt “special and concrete measures” to level the playing field for racial minorities – not just as a moral matter, but also as a legal requirement under the International Convention on the Elimination of All Forms of Racial Discrimination’s (ICERD).
The Court’s hostility toward such measures is an unequivocally unwelcome development. Given the Court’s current ideological composition and the slim chances of Congress passing significant legislation advancing racial equity, the path forward requires more creative solutions. The Biden administration has an opportunity to double down on its executive authority and use alternative legal and policy tools to advance racial equality. In doing so, it should place the ICERD at the center of its approach to racial equity and non-discrimination to advance racial justice and human rights in unprecedented ways.
Shifting Sands: The Supreme Court’s Attack on Affirmative Action
The Court’s decision in Students for Fair Admissions, Inc. v. Harvard (SFFA) functionally overruled cases like Grutter v. Bollinger, which had upheld the selective use of race in university admissions despite subjecting that form of affirmative action to the most stringent form of judicial review, strict scrutiny. Strict scrutiny requires governmental interventions to be narrowly tailored to achieve a compelling state interest. In Grutter, the Court recognized that assembling a diverse class of students is a compelling interest for universities, and that considering the race of applicants as one factor among others could be appropriately tailored to that end. By contrast, in SFFA, the Court not only questioned the tailoring of the universities’ race-conscious admission practices, but also suddenly found the universities’ interests to be “not sufficiently coherent for purposes of strict scrutiny.”
But the SFFA opinion contains a less-noticed shift as well: it dropped any acknowledgment of international human rights law and U.S. treaty obligations. When the Court upheld race-conscious admissions 20 years ago in Grutter, Justice Ruth Bader Ginsburg’s concurring opinion observed that the majority’s holding accorded with binding human rights obligations. Specifically, Justice Ginsburg noted that the holding in Grutter empowered schools to do what the ICERD endorsed: adopt “special and concrete measures to ensure adequate development 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.”
As a matter of human rights law, the United States assumed the obligation to implement such measures in 1994, when it ratified the ICERD. The U.N. General Assembly had unanimously adopted the ICERD and opened it for States to sign on in 1965 – a year before the United States signed it, taking the first step toward ratification – as the international legal order contended with the imperative of decolonization. The ICERD requires parties to promote formal and substantive equality across racial and ethnic lines, including through the adoption of temporary measures designed to boost access to resources and opportunities for historically disadvantaged groups.
As Justice Ginsburg noted elsewhere, affirmative action undertaken in conformity with international human rights principles can redress deprivations of equality as a civil right and promote economic and social well-being. In Grutter, Justice Ginsburg (joined by Justice Breyer) invoked the ICERD to emphasize the harmony between the majority’s observation that race-conscious programs should have a “logical endpoint” and international law’s dictate that the special measures of affirmative action must end “after the objectives for which they were taken have been achieved.”
By contrast, in eviscerating race-conscious admissions two months ago, the Court – as well as the concurring and dissenting opinions – entirely omitted any mention of U.S. obligations under international law. The Court neglected to acknowledge that the United States has been bound for nearly 30 years under the ICERD to promote both formal and substantive racial equality. This omission filtered into the Court’s constitutional analysis as well. The majority’s opinion pointedly refused to classify ameliorating societal discrimination as the sort of “compelling interest” that could survive strict scrutiny, even if measures to achieve it are narrowly tailored. It criticized both universities for pursuing objectives that may be difficult for courts to measure, such as improving educational outcomes and breaking down racial stereotypes, and it claimed that such objectives are not meaningfully connected to race-conscious admissions. Because admissions are zero sum, the Court’s majority also accused the universities of using race as a “negative” factor in screening applicants, and it suggested the schools have engaged in stereotyping by privileging “race qua race.” (As Justice Roberts wrote in the 2007 school segregation case, Parents Involved in Community Schools v. Seattle, “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”) Finally, the majority leaned selectively on Grutter to reprimand Harvard and UNC for lacking “a logical end point” to their admissions protocols.
U.S. International Law Commitments On Racial Equity
Had the majority attended to the requirements of the ICERD, its holding in SFFA would have been effectively impossible to justify. A body of U.N. experts established by States to monitor global implementation of the treaty, the United Nations Committee on the Elimination of Racial Discrimination, has widely endorsed affirmative action designed to alleviate racial inequities, including in access to educational opportunities. During a review 15 years ago, the committee specifically criticized the United States for doing too little to address racial discrimination in education. It expressed “particular concern” about Supreme Court decisions that:
rolled back the progress made since . . . Brown v. Board of Education (1954), and limited the ability of public school districts to address de facto segregation by prohibiting the use of race-conscious measures as a tool to promote integration.
Significantly, when the committee leveled this critique, its members were well aware that the Supreme Court had recently blessed limited race-conscious admissions practices in Grutter. (The U.S. position is that the treaty permits, but does not require, affirmative action. Its first report to the ICERD committee notes that the United States had long pursued such action at the federal level, consistent with the treaty.) There is little question that, during future periodic reviews, the committee will regard SFFA as backsliding that violates U.S. obligations under the ICERD to deploy affirmative action for the purpose of promoting equality across racial lines.
Although the ruling is likely the first in a series of actions by U.S. courts to restrict the ability of both public and private actors to use affirmative action to eliminate racial inequality in myriad fields – hence commentators immediately heralding the “end of affirmative action” – the decision does not immediately prohibit all “special and concrete measures.” Because the decision focuses on affirmative action in college admissions, other affirmative-action programs are not immediately affected. But litigation risk for continued consideration of race as a factor in institutional decision-making has dramatically increased. America First Legal, for example, quickly sent a letter to 200 U.S. law schools after the ruling in SFFA, threatening legal action if the institutions extended any “discriminatory preferences” based on race, gender, or national origin. A group of thirteen state attorneys general likewise sent a letter to all Fortune 100 CEOs threatening accountability for any “race-based quotas or preferences” companies have adopted for employment and contracting purposes, also citing SFFA.
The Biden administration, on the other hand, was quick to provide schools with guidance on the scope of the Court’s decision and the continued obligation to ensure that admissions practices “do not create barriers for students based on protected characteristics, including race.” This guidance from the Departments of Justice and Education emphasized that schools can “continu[e] to seek the admission and graduation of diverse student bodies, including along the lines of race and ethnicity, through means that do not afford individual applicants a preference on the basis of race in admissions decisions.” It suggested several practices that could be effective in this regard, such as recruitment and pathway programs.
The guidance further noted that educational institutions can continue to assess how applicants’ “individual backgrounds and attributes—including those related to their race, experiences of racial discrimination, or the racial composition of their neighborhoods and schools—position them to contribute to campus in unique ways.” Whether admissions programs implementing such guidance will survive the scrutiny of the courts remains to be seen.
The quick action by the Departments of Justice and Education was notable in another, less desirable, respect: Like the Court’s decision in SFFA, it made no mention of the U.S. obligation to take “special and concrete measures” – including affirmative action – to eliminate racial inequality pursuant to ICERD. (The administration’s “friend of the court” amicus brief in SFFA also omitted any reference to the treaty.) This is unfortunate because the executive branch has an opportunity to build a better response to racial inequality by leveraging the additional authority of international law.
Although such obligations can be difficult to enforce domestically, ratified human rights treaties remain “a part of our law.” The Supreme Court has suggested that particular treaty obligations may require additional action by the political branches before they can be enforced by the courts. But they still form part of “the laws” which the Constitution assigns the president to “take care” to “faithfully execute.” (While a 1989 Office of Legal Counsel opinion penned by Bill Barr suggests that the president has the authority to ignore international law, this issue has been the subject of much disagreement and discussion in Just Security – for example, see here and here.) In addition, the United States is still legally bound to comply as a matter of international law. Backsliding on treaty obligations puts the United States in breach of its duties to treaty partners.
The administration may have avoided invoking international law in relation to SFFA due to a fear of political backlash for suggesting international law bears on a matter of domestic controversy. (Law professor José Alvarez has suggested that the Trump administration’s ability to dismantle the international legal order is a lesson in hubris for international lawyers.) Whatever the reason, the administration’s habit of eliding the treaty is important for several reasons. First, any other treaty party could take a dispute over U.S. practices (whether with respect to the “interpretation or application” of the treaty) to the International Court of Justice (ICJ). The United States has limited the application of the disputes clause in Article 22 of the ICERD by reservation, such that a case would require its “specific consent” before it might be submitted to the ICJ’s jurisdiction. But even if the Biden administration is unlikely to consent to any case brought against it at the ICJ, it is still obligated to comply with the treaty. (Accordingly, one of us has argued that the government should brief U.S. courts when a decision may put the United States in breach, as the Supreme Court has plausibly done in SFFA.) And regardless, violating a treaty sends a troubling signal to U.S. treaty partners about its level of respect for international law obligations in other domains.
Another reason it matters that U.S. administrations habitually minimize the ICERD is that the specificity and breadth of the ICERD’s provisions, the practices of other treaty parties, and the views of experts and the U.N. about the treaty’s scope all provide useful interpretive fodder and context for promoting racial justice in the United States. Even if the Supreme Court paid no heed to the treaty’s provisions in its latest ruling on affirmative action, the administration is bound as a matter of international law to eliminate racial discrimination and take “specific and concrete” measures towards that end. Publicly embracing these obligations would enrich the debate about tackling discrimination.
New Opportunities for Executive Branch Leadership on Racial Justice
There is a third reason the administration should embrace the ICERD: it’s missing a golden opportunity to open new pathways for presidential action. As we argue in a new essay, published today in the U.C.L.A. Law Review Discourse, the executive branch has underappreciated power to effectively implement human rights treaties like the ICERD through unilateral action. In the wake of SFFA, the Biden administration could take several concrete actions, even beyond acknowledging explicitly that U.S. international law duties apply to the issue of affirmative action.
One step would be to revise the executive branch structure for administering non-discrimination law, specifically changing it to require consideration of (and compliance with) the ICERD. This could include updating the 1980 Executive Order (EO 12250) delegating to the Attorney General the authority to coordinate implementation and enforcement of the non-discrimination provisions of several federal laws, including the Civil Rights Act of 1964. Another step would be to modify the rulemaking process (such as by Executive Order) to require explicit evaluation of equity considerations and the ICERD’s mandate when agencies propose new regulations. A third step would be for federal departments and agencies to incorporate the ICERD and its standards into their enforcement of federal civil rights law. Multiple administrations have pointed to such agency enforcement as evidence of compliance with international law, suggesting this would not be an especially heavy lift to incorporate parallel analysis in its agency action.
Because the ICERD requires affirmative action, among other things, these changes would provide new contexts in which to articulate arguments about adopting special measures – despite the limits of U.S. constitutional law in the wake of SFFA and its likely progeny. At a time when the Biden administration has invested heavily in racial equity, and its agencies and departments have developed equity action plans, the invocation of binding human rights obligations could put more meat on the bones of executive branch action.
Cynics and the ghost of Senator Bricker may roll their eyes at our proposal. Indeed, it may be hard to imagine the president suggesting that action to eliminate racial inequities at home is important for living up to U.S. international human rights commitments. Certainly, one lesson of the Trump years may be that isolationism has much broader political appeal – and cosmopolitanism carries more risk – than international lawyers like to admit.
But it is not without precedent. After all, Lyndon B. Johnson designated 1968 as Human Rights Year to commemorate the 20th anniversary of the adoption of the Universal Declaration. In the relevant Proclamation, Johnson called on all government agencies to “deepen our commitment to the defense of human rights” and “strengthen our efforts for their full and effective realization . . . among our own people.” He also established a commission that found a need for greater coordination on implementing human rights obligations within the federal government.
Half a century on, it is time to revisit Johnson’s approach. In the interim, the United States has ratified the ICERD, but has also failed to live up to its promise. There is a gaping chasm between the executive branch’s rhetorical warmth toward the objective of the treaty, on one hand, and congressional and judicial antipathy toward it, on the other. With a conservative House of Representatives, federal legislation to implement the treaty or otherwise promote racial justice is unrealistic. And with the Supreme Court’s hostility toward affirmative action now beyond dispute, the executive is the only branch of the federal government with both the power and inclination to make genuine progress. The Biden administration should finally acknowledge that such progress is legally – not just morally – required, and then it should creatively leverage its power to realize it.