Human Rights

Justice Ginsburg cited CERD and CEDAW in both her concurring opinion in Grutter v. Bollinger (joined by Justice Breyer) and her dissenting opinion in Gratz v. Bollinger.  Network members NOW LDEF and Human Rights Advocates submitted amicus international law briefs in both cases. Briefs are available in the Library under Non-Discrimination/Race/Briefs.

Grutter v. Bollinger, 529 U.S. __ (2003).

Justice Ginsburg concurred with the court’s opinion holding that the University of Michigan Law School’s admission program’s “narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body [was] not prohibited by the equal protection clause” and noted that the court’s decision was consistent with the international understanding of affirmative action.  Justice Ginsburg wrote:

The Court's observation that race-conscious programs "must have a logical end point," [], accords with the international understanding of the office of affirmative action. The International Convention on the Elimination of All Forms of Racial Discrimination, [] endorses "special 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." [ Art. 2(2)]. But such measures, the Convention instructs, "shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved." [Ibid. see also Art. 1(4)] (similarly providing for temporally limited affirmative action); Convention on the Elimination of All Forms of Discrimination against Women, [Art. 4(1)] (authorizing "temporary special measures aimed at accelerating de facto equality" that "shall be discontinued when the objectives of equality of opportunity and treatment have been achieved"). [citations omitted]

The decision is available at:

http://www.supremecourtus.gov/opinions/02pdf/02-241.pdf

Gratz v. Bollinger, 529 U.S. __ (2003)

Justice Ginsburg’s dissent makes the point that “the Constitution is color conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination. [citations and internal quotations omitted].”  She then notes that “contemporary human rights documents draw just this line; they distinguish between policies of oppression and measures designed to accelerate de facto equality.[citations to Grutter and CERD and CEDAW omitted]”

The decision is available at:

http://www.supremecourtus.gov/opinions/02pdf/02-516.pdf