38. At the college level, further structural perversions are at work. Federal student aid in the form of grants (Pell grants) have been allowed to fall in value as tuition has escalated at the college level.90 State governments have diminished their commitment to public higher education by an average of 26% in real terms in the period 1990-1991 to 2009-2010 – even as operating costs increased.91 Finally, lawmakers have permitted the for-profit education industry to capture a huge portion of federal student aid funds with minimal regulation despite their poor record in serving students.92 The shift from need based financial packages to so-called merit based financial packages together with the expansion of student loans as opposed to grants as a means of funding higher education means that the burden of higher education costs falls more significantly on the racial minority student coming from a poorer district. Moreover, in an effort to enhance competitiveness, public state schools are steering funding to natural science and math education (the so-called STEM programs for Science, Technology, Engineering and Mathematics) over the humanities and social sciences– a steering of resources precisely to the kinds of courses for which the resources are sorely lacking at the high school level to provide competitive preparation in poorer racial minority districts. In private colleges these same pressures are at work in private not for profit colleges. But, the additional development of private for-profit colleges essentially financed through student loans that are being investigated as to whether they may be preying on minorities (and veterans) by failing to provide meaningful programs thus leaving students without degrees and with high student loan debt, forms a further detrimental structural development for racial minority students seeking a college education. The result is the burden on students of financing their education through family means or private and federally subsidized loans has risen making college education even less attainable for those who have managed to overcome the elementary and secondary hurdles described in the previous section, particularly for lower income students from racial minorities. Recent efforts in the U.S. Senate to provide some loan relief for this crushing student debt have been defeated.93 Yet this matter of accumulated college and law school student debt remains a significant preoccupation of the legal profession as evidenced in the recent work of the American Bar Association, which noted that:
“The Financing of Legal Education
1. Loan Repayment. Students in J.D. programs who do not receive substantial scholarships (through differential pricing or otherwise) generally pay for their education through loans. Loan repayment requirements can be a major burden, particularly in the early part of a career when earnings may be low.
Although loan forgiveness programs and income-based repayment programs have been beneficial, loan repayment obligations can still affect job or career choices and the totality of these choices can affect the distribution of legal services throughout society. For example, loan repayment obligations may decrease the ability of law school graduates to enter certain forms of lower-paying public service, or decrease the ability of graduates to enter practice in communities or geographic areas where income potential is not sufficient in light of loan obligations. A recent report by the Illinois State Bar Association has described this development in compelling terms and offered several recommendations that the Task Force has embraced.94
39. People of goodwill have attempted to counter these structural forces and vindicate in their own manner the United States obligations under the ICERD at the local, state and federal level through public and private means.95 However, the domestic internal legal landscape has consistently moved in a direction that is unfavorable to the aspirations of racial minorities and United States compliance with its obligations.
40. Coupled with the unwillingness of the U.S. Supreme Court to view education as a fundamental right (thus enshrining the property tax based system of public elementary and secondary educational financing),96 the accelerated retreat of the U.S. Supreme Court from the U.S. form of special measures (affirmative action) has had the effect of reducing the number of racial minority matriculants at the flagship institutions that usually form the source of students for legal education.97 41. To help understand the history and the nature of that retreat, it is useful to have a sense of the range of race-conscious and color-blind approaches the United States Supreme Court has used over the years to address the endemic U.S. problem of racism through remedial and aspirational efforts towards formal equality and substantive equality ends. The resulting legal rules in place have resulted from the intersection of these four visions of the nature of equal opportunity as shown in the next picture.
98 42. As presented in the next picture below, since the late nineteenth century one might understand the U.S. Supreme Court’s jurisprudence on equal opportunity as migrating through the theories of separate but equal, desegregation, integration, affirmative action, and non-discrimination (diversity and pluralism):
99 43. In what is viewed as a setback, through a series of recent decisions (most recently in Fisher last term, and Schuette this past month), the United States Supreme Court has discouraged race-based affirmative action admissions policies in schools of higher public education and law schools by raising the burdens on those colleges and graduate schools that seek to use affirmative action. In Fisher, decided in 2013, the studied ambiguity of the Supreme Court as to what would be a race-based policy that would pass muster with the Court has the effect of causing great uncertainty for schools as to the constitutional validity of any race-conscious admissions policies to enhance diversity. In Schuette, the Court’s view that it has no federal Constitutional authority to override the state constitutional ban on affirmative action put in place through a referendum by majority vote supported by two-thirds of whites that was opposed by 90 per cent of the blacks in the state of Michigan exercising the franchise100 sends a clear message that racial minorities should not look now to the highest U.S. court for support.101 This troubling state of affairs is notwithstanding the fact that the ICERD imposes obligations on state parties to take appropriate measures to prevent and eliminate racial discrimination, whatever the level (federal, state or local) of the domestic structure of governance.102 44. In fact, a recent study of the current Supreme Court (the Court under Chief Justice Roberts over the period October 2005 to January 2014) has found that when issues of unequal treatment based on race have been before the Court, this highest Court has systematically favored white claimants over minority claimants. Source: Vincent Bonventre, (Part 3--White Wins vs Minority Wins) The Supremes' Record in Racial Discrimination Cases: Decisional & Voting Figures for the Roberts Court, The New York Court Watcher, February 17, 2014, available at http://www.newyorkcourtwatcher.com/2014/02/part-3-white-wins-vs-minority-wins.html; Vincent Bonventre, (Part 2--Protecting Racial Minorities?) The Supremes' Record in Racial Discrimination Cases: Decisional & Voting Figures for the Roberts Court, New York Court Watcher, February 17, 2014, available at http://www.newyorkcourtwatcher.com/2014/02/part-2-protecting-racial-minorities.html
45. Coupled with the federalism block to progress in domestic law as evidenced by Shelby County and Schuette, a further federalism block to the implementation of human rights treaties is prefigured in the Court jurisprudence in the Bond v. United States case decided June 2, 2014. In that case, the Court used federalism grounds to limit the effect of a non-self-executing treaty with Congressional implementing legislation. The Bond decision wrongly suggests that treaties are primarily about intercourse between States, and not of relevance to the human dignity of citizens within those States.103 46. At the same time as the judiciary takes this approach, welcoming such challenges by white claimants, private groups of substantial means who are opposed to any special measures (affirmative action) actively recruit potential plaintiffs to bring court challenges to any race-conscious admission policies – further causing institutions of higher education to hesitate.104 The result is to place great pressure on alternative forms of special measures (affirmative action) in order to enhance diversity at these schools through non-race conscious means such as programs that accept the top ten percent of the graduating classes of public high schools. The irony in these approaches is twofold 1) whatever the level, because racial minorities are minorities the principal beneficiaries are more likely to be majority students, thus reducing the presence of minorities in these schools,105 2) second, these programs perversely rely on housing segregation being maintained (and enshrine it) in order for the public schools to reach their goal of racial diversity in the classroom.106 47. If fully embraced by universities, the current diversity rationale for race-based affirmative action might still lead to increased access to education of minorities.107 However, the recent Schuette decision threatens this possibility. In Schuette, the Court upheld a state ban on the use of race-based affirmative action in admissions in Michigan, giving short shrift to the interests of racial minorities opposing said ban. With this case, the way is clear for more state legislatures to join with the seven states108 that have passed measures against race-conscious special measures of affirmative action for admissions, further limiting the path to the college and graduate level for U.S. minorities.
47a. Moreover, the recent Burwell v. Hobby Lobby, Inc., 573 U.S. ___ (2014) decision of the Supreme Court of June 30, 2014 prefigures a further erosion (and possibly) reversal of efforts to address racial discrimination through special measures such as affirmative action in the U.S.. These restrictions would occur under the guise of recognizing statutory religious freedom rights of for profit corporations and other commercial enterprises under the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U.S.C. Section 2000bb et seq.. The impact of Hobby Lobby on efforts to address racial discrimination was specifically referred to in the majority opinion with the majority seeking to be reassuring by stating:
“The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal. (Majority Decision, Page 46)”
47b. Of course, cloaking of racial discrimination as religious practice has a long and dark history to justify the oppression of blacks in particular in the long period of American slavery and apartheid to the present. The arguments are often based on religious justification for slavery.
Religion-based arguments for segregation to which the majority in Hobby Lobby refers were noted in the dissent. For example, in the Newman v. Piggie Park Enterprises, Inc. 256 F. Supp. 941, 945 (SC 1966) (owner of restaurant chain refused to serve black patrons based on his religious beliefs), 377 F. 2d. 433 (CA4 1967), aff’d and modified on other grounds, 390 U.S. 400 (1968) (pages 32-33, Dissent of Justice Ginsburg joined by Justice Sotomayor, Justice Breyer and Justice Kagan), the Defendant contended only two years after its passage, that the Civil Rights Act of 1964, 42 U.S.C. Section 2000a – a fundamental act to address racial discrimination – “violates his freedom of religion under the First Amendment "since his religious beliefs compel him to oppose any integration of the races whatever.” 256 F. Supp 941, 945 (SC 1966).
47c. Rather than through a First Amendment constitutional challenge as in Newman, one can easily imagine sincere religious belief (no matter the detriment to minorities) statutory challenges to key Civil Rights Act under the Religious Freedom Restoration Act requirement that prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person – (1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling government interest.” 42 U.S.C. Sections 2000bb-1(a),(b). (Majority Opinion at page 5). After the Supreme Court decision in Hobby Lobby, such claims are recognized as properly being asserted by significant for profit corporations raising the specter of further substantial resources being put into having religious freedom rights legislation trump civil rights legislation and jurisprudence so as to further dismantle special measures such as affirmative action against racial discrimination. It is unfortunate that neither the majority nor the dissent saw fit to address the ICERD obligations of the United States as part of their analysis.
48. Also disturbing is the insufficient reference to the ICERD or other international treaties in the Court’s reasoning in recent Parents, Fisher, Shelby County, Schuette and Bond decisions. In this jurisprudence, the Court erects false federalism and other barriers to the domestic implementation in the states of federal law such as special measures of affirmative action. International law does not prohibit affirmative action. At the time that the ICERD was submitted to the U.S. Senate for ratification in 1994, 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. As a result, the Convention leaves undisturbed existing U.S. law regarding affirmative action programs.”109
49. Second, whether viewed as non-self-executing or self-executing, the ICERD trumps inconsistent state law. One author has noted that:
“As U.S. treaty law, the ICCPR and the [ICERD] are supreme law of the land and set important federal policy with respect to federal preemption of state laws. As such, they will trump inconsistent state law. Though the instruments of ratification for each treaty contain declarations that they are “non-self-executing,” these declarations function as reservations that are fundamentally inconsistent with the objects and purposes of the treaties and are thus void ab initio. Even if “non-self-executing,” the treaties should still trump inconsistent state law under the Supremacy Clause of the U.S. Constitution and the doctrine of federal preemption. As the Supreme Court emphasized in United States v. Pink, “state law must yield when it is inconsistent with, or impairs the policy or provisions of, a treaty… [and] must give way before the superior Federal policy evidenced by a treaty.110 “If the states do not proceed, the United States is bound by Article 2 of the treaty to take action (i.e. there is no gap in the U.S. duty under Article 2 because neither the states nor federal government have yet proceeded to adopt special measures).111 “Indeed the federal clauses require that the treaties “shall be implemented…otherwise by the state and local governments,” thus making duties under the treaties concurrent.112 “Although treaties cannot prevail in the case of an unavoidable clash with the U.S. Constitution, treaties can be used as aids for the interpretation and enhancement of constitutional rights, duties and powers. Thus, the treaty-based permissibility of affirmative action and related duties can be used to condition the meaning of relevant constitutional norms…”113 50. Third, through friend of the court briefs (amicus curiae briefs), concerned scholars and other members of civil society have highlighted to the Court: the relevance of international and comparative foreign law to the Supreme Court’s consideration of constitutional questions, the consistency of considerations of race with the U.S. international human rights commitments, and the need to affirm the use of special measures such as race-conscious approaches to promote equality and non-discrimination.114 After all, as was noted in one of the amicus briefs:
“International law and opinion have informed the law of the United States since the adoption of the Declaration of Independence. The Founders were greatly influenced by international legal and social thought, and throughout the history of the United States, courts have referred to international standards when considering the constitutionality of certain practices.115 51. The views of the CERD that special measures should include laws, policies, or practices that can affect areas such as housing, access to education including de facto discrimination in schools, employment, and general participation in public life have been brought to the attention of the Supreme Court.116 Similar concerns of the Human Rights Committee under the International Covenant on Civil and Political Rights, other UN organizations, the European Court of Justice, national courts of justice in Brazil, South Africa, India, Canada, New Zealand and Australia have also been brought to the attention of the Supreme Court.117 52. The point we make here is not whether or not the Supreme Court as the principal expression of the U.S. jurisdiction to adjudicate would agree or not with these analyses. Our point is that the insufficient analysis of the international treaty implications in the current Supreme Court’s approach to issues of affirmative action and voting rights severely undermines the U.S. domestic compliance with its treaty obligations. This blind spot or willful turning away from human rights treaties by the Supreme Court forms a central reason for our view that the U.S. is currently in material breach of its obligations under the ICERD.