TABLE OF AUTHORITIES … … … ii

IDENTITY OF AMICUS CURIAE, ITS INTEREST, AND SOURCE OF
AUTHORITY TO FILE … … … 1

ARGUMENT … … … 1

1. INTERNATIONAL AND COMPARATIVE LAW ARE RELEVANT
   TO THE ISSUES BEFORE THIS COURT … … … 1
   
   
2. UNITED STATES TREATY LAW PERMITS AFFIRMATIVE
   ACTION AND, UNDER CERTAIN CIRCUMSTANCES,
   IMPOSES AFFIRMATIVE DUTIES TO ASSURE EQUALITY … … … 6
   
   
   1. The United States Understands The ICCPR To Support
      Affirmative Action Programs Such As The Admissions
      Policy At Issue Here … … … 6
      
      
   2. CERD Endorses Affirmative Action Programs … … … 8
      
      
   3. Self-Execution Is Not An Issue Where, As Here, The
      Treaty Provisions Are Cited As Aids To Interpretation … … … 9
      
      
3. HIGH COURTS OF OTHER NATIONS HAVE UPHELD
   AFFIRMATIVE ACTION MEASURES UNDER COMPARABLE
   CIRCUMSTANCES … … … 10

CONCLUSION … … … 15

CERTIFICATE OF COMPLIANCE … … … 16

CERTIFICATE OF SERVICE … … … 17

ADDENDUM

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) … … … 1

Gratz v. Bollinger, 135 F. Supp. 2d 790, 794 (E.D. Mich. 2001) (Gratz II) … … … 1

Gratz v. Bollinger, 122 F. Supp. 2d 811, 816 (E.D. Mich. 2000) (Gratz I) … … … 1

Knight v. Florida, 528 U.S. 990 (1999) … … … 4

Nixon v. Shrink Missouri Gov't PAC, 528 U.S. 377 (2000) … … … 4

Printz v. United States, 521 U.S. 898 (1997) … … … 5

Regents of the University of California v. Bakke, 438 U.S. 265 (1978) … … … 12

Washington v. Glucksberg, 521 U.S. 702 (1997) … … … 5

Canadian Nat'l Ry. Co. v. Canada, [1987] 1 S.C.R. 1114 (Can.) … … … 13, 14

Case C158/97, Badeck & Others, 2000 All ER (EC) 289 (E.C.J.) 11, … … … 12, 13

Case C-409/95, Marschall v. Land Nordhein-Westfalen, 1997 All ER
(EC) 865 (E.C.J) … … … 11, 12

Motala & Another v. Univ. of Natal, 1995 (3) BCLR 374 (Durban Sup. Ct.),
1995 SACLR LEXIS 256 (S. Afr.) … … … 14

Davis, Martha F., International Human Rights and United States Law:
Predictions of a Courtwatcher, 64 ALB. L. REV. 417 (2000) … … … 3

de la Vega, Connie, Civil Rights During the 1990s: New Treaty Law Could
Help Immensely, 65 U. CIN. L. REV. 423 (1997) … … … 2, 10

Fitzpatrick, Joan, The Preemptive and Interpretive Force of International
Human Rights Law in State Courts, 90 PROC. AM. SOC. INT'L L. 262 (1996) … … … 10

Ginsburg, Ruth Bader, & Deborah Jones Merritt, Lecture: Fifty-First
Cardozo Memorial Lecture—Affirmative Action: An International Human
Rights Dialogue, 21 CARDOZO L. REV. 253 (1999) … … … 4, 12, 15

HENKIN, LOUIS, ET AL., HUMAN RIGHTS (1999) … … … 9

JAUCH, HERBERT M., AFFIRMATIVE ACTION IN NAMIBIA (1998) … … … 15

L'Heureux-Dube, Claire, The Importance of Dialogue: Globalization and
the International Impact of the Rehnquist Court, 34 TULSA L.J. 15 (1998) … … … 3

Nash, Marian, U.S. Practice: Contemporary Practice of the United States
Relating to International Law, 88 AM. J. INT'L 719 (1994) … … … 9

PAUST, JORDAN J., INTERNATIONAL LAW AS LAW OF THE UNITED STATES
(1996) … … … 10

Paust, Jordan J., Race-Based Affirmative Action and International Law,
18 MICH. J. INT'L. L. 659 (1997) … … … 2, 8, 9, 10

Rehnquist, William, Constitutional Courts—Comparative Remarks (1989),
reprinted in GERMANY AND ITS BASIC LAW: PAST, PRESENT AND FUTURE—A
GERMAN-AMERICAN SYMPOSIUM 411 (Paul Kirchhof & Donald P. Kommers
eds., 1993) … … … 5

United States: Senate Committee On Foreign Relations Report On The
International Covenant On Civil And Political Rights, 31 I.L.M. 645 (May 1992) … … … 7, 8

Convention on the Elimination of All Forms of Racial Discrimination,
March 7, 1996, 660 U.N.T.S. 195 … … … 2, 8, 9

International Convention on Civil and Political Rights, December 19, 1966,
999 U.N.T.S. 171 … … … 2, 6

S. AFR. CONST. pmbl.; ch. 2, § 9(2) … … … 14

U.S. CONST. art. VI, cl. 2 … … … 2

Committee on the Elimination of Racial Discrimination: Addendum by Israel,
at para. 48, U.N. Doc. CERD/C/294/Add.1 (1997) … … … 14

Compilation of General Comments and General Recommendations
Adopted by Human Rights Treaty Bodies, General Comment 18, para.
13, at 28 (1994) … … … 6, 7, 8

Press Release, New York University, European Court Members and Four U.S.
Supreme Court Justices to Discuss Current European and U.S. Constitutional
Issues at 2 (Mar. 27, 2000), available at www.nyu.edu/publicaffairs/newsreleases/
b_EUROP.shtml … … … 4

Amicus curiae NOW Legal Defense and Education Fund ("NOW Legal
Defense") is a leading national non-profit civil rights organization that has used the
power of the law to define and defend women's rights for thirty years. It has
participated as counsel and as amicus curiae in numerous cases in support of
affirmative action. NOW Legal Defense is interested in this case because of the
positive impact affirmative action programs have in promoting equality and
eliminating barriers for women, particularly racial minorities. All parties in this
case have consented to NOW Legal Defense's participation as amicus curiae.

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

It is undisputed that the University of Michigan College of Literature,
Science, and the Arts (the "LSA") utilizes race as one of many factors in its
admissions decisions, and that such classifications must be narrowly tailored to
serve a compelling governmental interest. See Adarand Constructors, Inc. v. Pena,
515 U.S. 200, 227 (1995). Here, defendants and intervenors argue that the LSA
justifiably uses race as an admissions factor to (1) remedy past discrimination on
the basis of race; and (2) ensure diversity in higher education. Gratz v. Bollinger,
135 F. Supp. 2d 790, 794 (E.D. Mich. 2001) (Gratz II); Gratz v. Bollinger, 122 F.

Supp. 2d 811, 816 (E.D. Mich. 2000) (Gratz I). The lower court upheld the latter
rationale, noting "a racially and ethnically diverse student body . . . in the context
of higher education, constitutes a compelling governmental interest under strict
scrutiny." Gratz I, 122 F. Supp. 2d at 824.

Amicus curiae contends that the record below amply supports the force of
both arguments. Moreover, compliance with the United States's international
treaty obligations provides additional support for finding that the LSA's interest in
giving attention to race, among other criteria, in selecting students is indeed
"compelling," as the Constitution mandates. See Connie de la Vega, Civil Rights
During the 1990s: New Treaty Law Could Help Immensely, 65 U. CIN. L. REV.
423, 468 (1997); Jordan J. Paust, Race-Based Affirmative Action and International
Law, 18 MICH. J. INT'L L. 659, 675-76 (1997) [hereinafter "Race-Based
Affirmative Action"].

Two treaties ratified by the United States specifically permit race-based
distinctions in order to redress past discrimination and promote the values of
diversity: the International Convention on Civil and Political Rights, done
December 19, 1966, art. 2(2), 999 U.N.T.S. 171, 173 [hereinafter "ICCPR"]; and
the Convention on the Elimination of All Forms of Racial Discrimination, done
March 7, 1966, art. 2(2), 660 U.N.T.S. 195, 218 [hereinafter "CERD"]. The
United States has committed itself, by becoming a party to the treaties, to take the

affirmative steps necessary to ensure that the equal enjoyment of rights is
guaranteed to all racial groups and their individual members. Indeed, those treaties
are now part of the "supreme Law of the Land[,]" U.S. CONST. art. VI, cl. 2, and
thus provide a perspective on this issue that should inform this Court's decision.

Accordingly, the ICCPR and CERD offer relevant, legitimate sources of
guidance to this Court in evaluating whether the LSA's affirmative action program
furthers compelling interests in remedying past discrimination in university
admissions and promoting a diverse intellectual community.

In addition to specific treaty provisions, American jurists increasingly look
to international and foreign law to inform their decisions regarding domestic legal
issues. Indeed, acknowledging the international context in which judicial decisions
occur is necessary both to maintain domestic courts' legitimacy in an era of
globalization, and to assert the United States's intellectual leadership in issues
involving human rights. See Martha F. Davis, International Human Rights and
United States Law: Predictions of a Courtwatcher, 64 ALB. L. REV. 417, 421-28
(2000) (arguing that in the 21^st century, judicial legitimacy requires that courts
acknowledge international context of decisions); Claire L'Heureux-Dube, The
Importance of Dialogue: Globalization and the International Impact of the
Rehnquist Court, 34 TULSA L.J. 15, 16-17 (1998) (acknowledging United States's

past judicial influence "[i]n the fields of human rights and constitutional
principles").

Recognizing this, a majority of Supreme Court Justices have signaled their
interest in considering international legal materials when expounding federal law.
One proponent of an international perspective is Justice O'Connor, who
commented in 1998, after an initial meeting with members of the European Court
of Justice, that "[i]n the next century, we are going to want to draw upon
judgments from other jurisdictions," including the decisions of the European
Court. Press Release, New York University, European Court Members and Four
U.S. Supreme Court Justices to Discuss Current European and U.S. Constitutional
Issues at 2 (Mar. 27, 2000), available at www.nyu.edu/publicaffairs/
newsreleases/b_EUROP.shtml. Likewise, Justice Ginsburg has specifically
addressed the relevance of international and comparative law to affirmative action.
According to Justice Ginsburg:

[C]omparative analysis emphatically is relevant to the task of interpreting
constitutions and enforcing human rights. We are the losers if we neglect
what others can tell us about endeavors to eradicate bias against women,
minorities, and other disadvantaged groups.

Ruth Bader Ginsburg & Deborah Jones Merritt, Lecture: Fifty-First Cardozo
Memorial Lecture—Affirmative Action: An International Human Rights Dialogue,
21 CARDOZO L. REV. 253, 282 (1999).

Justice Breyer's opinions amply demonstrate his interest in international and
comparative materials as aids to constitutional interpretation. See Nixon v. Shrink
Missouri Gov't PAC, 528 U.S. 377, 403 (2000) (Breyer, J., concurring) (noting that
other nations' approaches to campaign finance are consistent with Supreme Court
majority's approach); Knight v. Florida, 528 U.S. 990, 995-96 (1999) (Breyer, J.,
dissenting) (citing case law of Canada, India, Great Britain, Zimbabwe, and
Universal Declaration of Human Rights to support view that lengthy delay in
administering lawful death penalty may be unusually and impermissibly cruel);
Printz v. United States, 521 U.S. 898, 976-77 (1997) (Breyer, J., dissenting)
(discussing how experiences of Switzerland, Germany, and European Union law
may "cast an empirical light on the consequences of different solutions to a
common legal problem").

Chief Justice Rehnquist has also called on courts to examine international
precedents, noting that "it is time that the United States courts begin looking to the
decisions of other constitutional courts to aid in their own deliberative process."
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). In Washington v. Glucksberg, 521 U.S. 702 (1997), in ruling that the
State of Washington's statute prohibiting assisted suicide was not invalid on its

face, Chief Justice Rehnquist's opinion for the Court—joined by Justices Kennedy,
Thomas, Scalia, and O'Connor—specifically took note that Canada, Great Britain,
New Zealand, and Australia, like the State of Washington, have rejected efforts to
establish a fundamental right to assisted suicide, while Colombia has legalized
voluntary euthanasia for terminally ill people. 521 U.S. at 718, n.16.

As elaborated below, courts and jurists around the world have also grappled
with issues of affirmative action, often in contexts analogous to those presented by
the record in this case. Wisdom gleaned from the opinions of colleagues in foreign
jurisdictions can assist American courts in reaching sound conclusions under
domestic law.

II.       UNITED STATES TREATY LAW PERMITS AFFIRMATIVE
ACTION AND, UNDER CERTAIN CIRCUMSTANCES, IMPOSES
AFFIRMATIVE DUTIES TO ASSURE EQUALITY

1. The United States Understands The ICCPR To Support Affirmative
   Action Programs Such As The Admissions Policy At Issue Here

States Parties to the ICCPR are bound to take "necessary steps" to effectuate
rights guaranteed by the treaty. ICCPR, supra, art. 2(2), 999 U.N.T.S. at 173.
Article 26 of the ICCPR provides that "[a]ll persons are equal before the law" and
that States Parties "shall . . . guarantee to all persons equal and effective protection
against discrimination on any ground such as race . . . ." Id. at 179. Moreover, the
Human Rights Committee created by the treaty has provided authoritative
recognition that "[n]ot 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."
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 Committee:

The 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 . . . .

The United States affirmed the Human Rights Committee's construction
when it ratified the ICCPR. The formal "understanding" adopted at that time states
in pertinent part:

The United States understands distinctions based upon race . . . — as those
terms are used in Article 2, paragraph 1 and Article 26 — to be permitted
when such distinctions are, at a minimum, rationally related to a legitimate
governmental objective.

In interpreting the relevant Covenant provisions, the Human Rights
Committee has observed that not all differentiation in treatment constitutes
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.

In sum, the ICCPR has been construed—by the United Nations Human
Rights Committee and the United States Senate—to squarely permit affirmative
action. Indeed, the Human Rights Committee has indicated that affirmative action
may be "require[d]" when States Parties' failure to take such affirmative steps
would perpetuate discrimination. General Comment 18, supra, at para.

1. CERD Endorses Affirmative Action Programs

CERD by its terms also authorizes affirmative action programs to redress
past wrongs. While the treaty's general provisions outlaw all forms of racial
discrimination, see CERD, supra, arts. 2-5, 660 U.N.T.S. at 216-22, certain
"special measures" are expressly excluded from the definition of proscribed racial
discrimination. As the Convention states in Article 1, paragraph 4:

Special measures taken for the sole purpose of securing adequate
advancement of certain racial or ethnic groups or individuals requiring such
protection as may be necessary in order to ensure such groups or individuals
equal enjoyment or exercise of human rights and fundamental freedoms
shall not be deemed racial discrimination, provided, however, that such
measures do not, as a consequence, lead to the maintenance of separate
rights for different racial groups and that they shall not be continued after the
objectives for which they were taken have been achieved.

Again, the United States has expressly endorsed this approach. In the formal
statement of Conrad Harper, the Legal Adviser to the Secretary of State, to
Chairman Claiborne Pell of the Senate Foreign Relations Committee concerning
ratification of the treaty, the Legal Adviser 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.

Thus, carefully crafted race-based affirmative action programs to ensure
equal enjoyment of rights by all racial groups are plainly permissible, and in some
circumstances may be required, under both the ICCPR and CERD.

1. Self-Execution Is Not An Issue Where, As Here, The Treaty
   Provisions Are Cited As Aids To Interpretation

The United States's instruments of ratification for both the ICCPR and
CERD contain declarations that many (but not all) of the articles are "non-self-
executing." LOUIS HENKIN ET AL., HUMAN RIGHTS 784-86, 1043-44 (1999). The

propriety of such declarations need not be resolved here, because defendants and
amicus do not directly draw upon the treaty provisions as the foundation for their
legal claims. Rather, the ICCPR and CERD are cited here as additional
interpretive support for concluding that the LSA's admissions policy does not
offend the United States Constitution. Such an informative and illustrative role
for international law has been widely accepted by members of the United States
Supreme Court. See Part I, supra. Even generally non-self-executing treaties can
be used indirectly as aids for interpretation of other laws, defensively in civil or
criminal contexts, or-—as here—to support a claim that the state interest in race-
based affirmative action is indeed "compelling." See, e.g., JORDAN J. PAUST,
INTERNATIONAL LAW AS LAW OF THE UNITED STATES 62-64, 68, 97-98, 134-35,
370, 377-78 n.4, 384 (1996); de la Vega, supra, at 457 n.206, 460, 467, 470; Joan
Fitzpatrick, The Preemptive and Interpretive Force of International Human Rights
Law in State Courts, 90 PROC. AM. SOC. INT'L L. 259, 262, 264 (1996); Paust,
Race-Based Affirmative Action, supra, at 671 n.45.

III.       HIGH COURTS OF OTHER NATIONS HAVE UPHELD AFFIRMATIVE
ACTION MEASURES UNDER COMPARABLE CIRCUMSTANCES

Numerous countries have examined the issue of affirmative action under
their own laws and have upheld programs benefiting minority populations who
suffered discrimination. Most notably, in circumstances akin to the LSA's use of
race as a factor for admission purposes, the Court of Justice of the European

Communities has endorsed affirmative action as a remedy for gender
discrimination in employment. In two recent cases, the court upheld national
measures giving priority to women for promotion to public service positions where
they were underrepresented. See Case C158/97, Badeck & Others, 2000 All ER
(EC) 289 (E.C.J.) (attached hereto as Addendum A); Case C-409/95, Marschall v.
Land Nordhein-Westfalen, 1997 All ER (EC) 865 (E.C.J.) (attached hereto as
Addendum B). Critical to the opinions in both cases was the fact that, analogous to
the LSA's admissions process at issue here, women were not given automatic and
unconditional priority in obtaining promotions when there were equally qualified
male candidates available; all of the candidates—male and female—were assessed
individually according to objective criteria. Badeck, Add. A at 25, 27; Marschall,
Add. B at 18-19.

In Marschall, a German national rule permitted giving qualified women
priority for promotions to positions where they were underrepresented, unless there
was a specific reason to favor a male candidate. Marschall, Add. B at 4. The rule
was promulgated to promote equality of opportunity between men and women and
to counteract the societal discrimination that had in the past led to a
disproportionate number of higher positions being awarded to male applicants. Id.
The court held that the affirmative action policy was acceptable because the
candidates were objectively assessed; indeed, the rule's "saving clause"

specifically allowed the selection of a male candidate over a female where
nondiscriminatory criteria tilted the balance in his favor. Id. at 18-19.

Correspondingly, in Badeck, the Court of Justice was asked to decide
whether the "positive action" program to promote equality between men and
women mandated by the Hesse Equal Rights Law complied with Community law.
Badeck, Add. A at 3, 4. Building upon its earlier judgment in Marschall, the court
again concluded it would be lawful for women to be given priority over equally
qualified males for promotion in public and private sector jobs, if the employer
retained the flexibility to select the most suitable candidate, with gender as simply
one criterion in the overall evaluation of the candidates. Id. at 14. Because the
program did not foreclose selection of a qualified male, the court determined that
the national rule for affirmative action targeting women for advancement in the
areas of public employment, academic service, and training programs comported
with Community law. Id. at 27, 29.

Significantly, in both Badeck and Marschall, gender was used as a plus
factor for promotion, just as race was deemed a plus factor in education admissions
in Regents of the University of California v. Bakke, 438 U.S. 265 (1978). See
Ginsburg & Merritt, supra, at 279 (acknowledging that race and gender may be
plus factors in employment, promotion, or educational admissions). The discretion
accorded by the German legislation is comparable to that permitted by the LSA's

admissions program where race and ethnicity are included as additional
considerations to promote the goal of diversity. Though the European Court did
not explicitly adopt the concept of "narrow tailoring" from United States
jurisprudence, it engaged in an analysis similar to that invoked by American courts
reviewing conduct under the strict scrutiny standard. Thus, the European Court
investigated whether the priority given to females in appointments and promotions
pursued a legitimate social objective and utilized means that were proportionate "in
relation to the real needs of the disadvantaged group." Badeck, Add. A at 12.
Applying this standard, the court concluded that a program including such
discretion was sufficiently customized to pass muster under Community law. Id. at
25. This analysis comports with the rationale of Bakke and is applicable to the case at bar.

Other countries also permit affirmative action programs that correct systemic
discrimination using targeted measures to ameliorate for hardships suffered by
certain minority populations. For example, 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 promotion of women. Canadian Nat'l Ry. Co. v. Canada, [1987] 1
S.C.R. 1114, 1143-45 (Can.). The special, temporary measure—which went
farther than the program at issue here or in the European cases—required hiring at

least one woman for every four nontraditional positions until women had achieved
greater representation in positions traditionally filled by men. Id. at 1125-27,
1141.

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. Id. at *13-14. In rejecting her claim, the court observed that although
Indians also suffered discrimination under apartheid, the experience for Africans
was significantly worse, and compensating for this long-standing mistreatment of
African applicants to the medical school did not represent unfair discrimination
against Indian students under the constitution. Id. at *28.

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. See Committee on the Elimination of Racial Discrimination: Addendum
by Israel, at para. 48, U.N. Doc. CERD/C/294/Add. 1 (1997) (describing Israel's

program of tutorial and financial assistance provided to Ethiopian immigrants in
higher education to promote mobility and leadership); HERBERT M. JAUCH,
AFFIRMATIVE ACTION IN NAMIBIA 53-148 (1998) (detailing history of affirmative
action in Namibia); Ginsburg & Merritt, supra, at 273-81 (discussing successful
affirmative action policies in India and European Union). The legal analyses of
other countries that have successfully implemented affirmative action policies for
groups that, like racial minorities in the United States, have suffered past
discrimination should inform United States courts as they address similar issues.

Dated: June 7, 2001

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