Affirmative Action as an International Human Rights Dialogue: Considered Opinion

A 1995 United Nations report estimated that white Americans, if ranked as a separate nation, would lead the world in well-being, a measure that combines life expectancy, educational achievement, and income. African Americans, in contrast, would rank a depressing twenty-seventh, while Hispanic Americans would rank even lower at thirty-second. The authors of the UN report observed: "full equality still is a distant prospect in the United States, despite affirmative action policies and market opportunities."

The words affirmative action do not appear in the 1948 Universal Declaration of Human Rights, the foundation document for contemporary human rights discourse. The declaration does, however, contain two intellectual anchors for affirmative action. First, the declaration repeatedly endorses the principle of human equality. Second, it declares that everyone has the right to work, to an adequate standard of living, and to education. The declaration does not command that all will share equally, but it does suggest strongly that there are minimum levels of employment, education, and subsistence that all should share. If a nation finds that citizens of one race?or sex or religion?endure a markedly inadequate standard of living, then, the declaration suggests, it has an obligation to uncover the cause of, and respond to, that endurance.

If we take seriously the promises of employment, education, and sustenance made in the Universal Declaration of Human Rights, the discrepancies in racial well-being in the United States noted by the United Nations report demand affirmative government attention. It seems implausible that such marked differences would occur with no discrimination lurking in the background.

Affirmative action entered the U.S. legal lexicon in its contemporary connotation in 1961, although it did not shift into high gear until 1969, when President Richard Nixon?s Labor Department issued its Revised Philadelphia Plan, requiring government contractors in that city to set goals and timetables for hiring minority workers in six construction trades. Contractors who failed to comply risked loss of their valuable contracts. The Nixon administration?s plan to break away from historic practices, including trade union nepotism, generated controversy. But it survived both public criticism and legal challenges for, I believe, two reasons. First, it did not impose rigid quotas on government contractors, instead requiring contractors to set their own goals by examining the availability of minority workers in the local workforce. Second, although the Philadelphia Plan cited no international covenants, it rested on the twin supports of remedial justice and economic equity. It responded both to overt and subtle forms of racial bias and to a crisis in the economic well-being of minority Americans.

The U.S. Supreme Court first ruled on the constitutionality of a race-based affirmative action plan in 1978, in Regents of the University of California v. Bakke. The case produced six opinions from nine Justices, with the views of a single Justice, Lewis E. Powell, Jr., controlling the outcome. Justice Powell disapproved a state-run medical school?s affirmative action program, which set aside about one-sixth of the school?s seats for minority students, but he wrote that public universities could consider race as one factor, among several, when admitting students.

Like the designers of the Philadelphia Plan, Justice Powell resisted fixed quotas. Schools could consider minority race as a factor favoring admission, but could not designate a set number of seats for minority students. Although Justice Powell?s Bakke opinion rejected most of the justifications urged by the government in support of affirmative action, he did accept one?that a racially diverse student body would enrich the educational experience for all students. That reasoning is in line with article 26 of the Universal Declaration, which states that public education "shall be directed" to "promoting understanding, tolerance and friendship among all nations, racial or religious groups."

During the past two decades the Court has become increasingly skeptical of race-based affirmative action practiced or ordered by government actors. State and local attempts to remedy "societal discrimination" have not survived Court scrutiny, despite empirical evidence documenting persistent racial discrimination in education, employment, housing, and consumer transactions. The narrowing of the channel of constitutionally permissible race-based affirmative action has prompted empirical studies reporting the effects of affirmative action in both classrooms and workplaces and has caused even some long-time opponents of affirmative action to reconsider their opposition. What we are witnessing now may show the sagacity of the comment that the true symbol of the United States is not the bald eagle but the pendulum.

The United States, although a way paver, is hardly alone in endeavoring to redress historical and lingering deprivations of the basic civil right to equality and to advance the well-being of minorities that disproportionately experience poverty, unemployment, and ill health. India, for example, has undertaken affirmative action initiatives in regard to disfavored castes that are both older and more extensive than any program ventured in the United States. India?s 1950 Constitution boldly announced a commitment to affirmative action, reserving seats for members of India?s lowest social castes in both the House of the People and the state legislative assemblies. And in 1951, in response to a court ruling striking down a quota for students from disadvantaged classes at a state-run medical school, India amended its constitution expressly to permit affirmative action in education and other contexts. Article 15(4) now provides that "[n]othing in [the constitution?s anti-discrimination articles] shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens." India?s Supreme Court did impose, in 1963, a 50 percent ceiling on the number of positions that can be reserved for disadvantaged citizens?a limit that may appear startling to observers from legal systems more skeptical of affirmative action.

In the area of human rights, experience in one nation or region may inspire or inform other nations or regions. When India?s Supreme Court has judged the constitutionality of affirmative action measures, for example, it has considered U.S. precedents. The same readiness to look beyond one?s own shores has not marked the decisions of the court on which I serve. The U.S. Supreme Court has mentioned the Universal Declaration of Human Rights a spare five times and only twice in a majority decision. The most recent citation appeared 29 years ago, in a dissenting opinion by Justice Marshall. Nor does the U.S. Supreme Court note the laws or decisions of other nations with any frequency. When Justice Breyer referred in 1997 to federal systems in Europe, dissenting from a decision in which I also dissented, the majority responded: "We think such comparative analysis inappropriate to the task of interpreting a constitution."

In my view, comparative 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. For irrational prejudice and rank discrimination are infectious in our world. In this reality, as well as the determination to counter it, we all share.