ARGUMENT

THE FOURTEENTH AMENDMENT SUPPORTS AFFIRMATIVE ACTION IN EDUCATION AS REPARATIONS FOR THE CRIMES OF SLAVERY AND DE JURE RACIAL DISCRIMINATION

I. AFFIRMATIVE ACTION IN EDUCATION DESIGNED AS REPARATIONS FOR THE CRIMES OF SLAVERY AND DE JURE RACIAL DISCRIMINATION IS NOT PROHIBITED BY THE FOURTEENTH AMENDMENT

Throughout most of its history, the United States has been an exceedingly hostile place for Africans and their descendants. Slavery, genocide and de jure racial discrimination are now recognized as either crimes against humanity or contrary to international law under treaties ratified by the United States. See International Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21, 1965 (adopted by General Assembly), K.A.V. 2307, 5 I.L.M 352 (1966)Dec. 21, 1965 (adopted by General Assembly), K.A.V. 2307, 5 I.L.M 352 (1966), 660 U.N.T.S. 195, 216-218,660 U.N.T.S. 195, 216-218, art. 1, ¶ 4, art. 2, ¶ 2 (requiring remedial affirmative action until the effects of racial discrimination are overcome) ratification in 140 Cong. Rec. 14,326 (1994); Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948 (adoption by General Assembly), K.A.V. 2303, 78 U.N.T.S. 277, 278-280, art. I ("genocide…is a crime under international law"); Additional Article to the Treaty for the Suppression of the African Slave Trade, Feb. 17, 1863 (signed), U.S.-G.B., T.S. 127, 18 Stat. (2) 345; Treaty between United States and Great Britain for the Suppression of the Slave Trade, Apr. 7, 1862 (signed), U.S.-G.B., T.S. 126, 13 Stat. 645; Treaty of Peace and Amity between His Britannic Majesty and the United States of America (The Treaty of Ghent), Dec. 24, 1814 (signed), U.S.-G.B., T.S. 109, 8 Stat. 218, art. 10, ("the Traffic in Slaves is irreconcilable with the principles of humanity and Justice").

In the light of such history, affirmative action may certainly be used as a remedy:

"The Court is in agreement that, whatever the formulation employed, remedying past or present racial discrimination by a state actor is a sufficiently weighty state interest to warrant the remedial use of a carefully constructed affirmative action program." Wygant v. Jackson Board of Education, 476 U.S. 267, 286 (1986) (O'Connor, J., concurring in part and concurring in the judgment).

In United States v. Paradise, 480 U.S. 149 (1987), at least eight Justices agreed that remedial affirmative action was not prohibited by the Constitution. United States v. Paradise, 480 U.S., at 167 ("The Government unquestionably has a compelling interest in remedying past and present discrimination by a state actor") (Brennan, J., plurality opinion); Id., at 187 (the remedy "was narrowly drawn to achieve the goal of remedying the proven and continuing discrimination") (Powell, J., concurring opinion); Id., at 194-195 ("The relief [here] … must unavoidably consider race… [Courts] may, and in some cases must, resort to race-conscious remedies to vindicate federal constitutional guarantees") (Stevens, J., concurring in the judgment); Id., at 196 ("the Federal Government has a compelling interest in remedying past and present discrimination") (O'Connor, J., dissenting opinion). As recently as Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), at least seven of the nine Justices confirmed the continued vitality of remedial affirmative action. See Adarand, 515 U.S., at 2113-2114 (O'Connor, J.), at 2120 (Stevens, J., dissenting), at 2133 (Souter, J., dissenting), at 2135-36 (Ginsburg, J., dissenting).

For most of this Court, then, the question turns on the particulars -- the design and implementation of remedial affirmative action, and the appropriate standards of review.