Affirmative Action after SFFA: Is the US in Violation of International Human Rights Law?

Event on September 28, 2023
Many are concerned that the U.S. Supreme Court’s Students for Fair Admission (SFFA) decision, which invalidated affirmative action in public and private college admissions, could open the door to similar challenges in other areas such as employment, public procurement, federal grant recipients, and voting rights. Affirmative action has been an important, though insufficient, tool in the struggles to overcome the consequences of chattel slavery and legally enforced systems of segregation and more recent discrimination.
In addition to eroding the capacity of the United States to tackle de facto inequality, the SFFA decision may also result in failure to meet U.S. remedial obligations under international human rights law. Specialized human rights bodies of the United Nations and the regional body, the Inter-American Commission on Human Rights, have previously expressed concern over the systemic nature of racial discrimination in the U.S. and commended its use of special measures including affirmative action to overcome the legacy of racial discrimination. The UN Committee on the Elimination of Racial Discrimination has already issued a statement under its early warning and urgent action procedure calling on the U.S. to take effective measures to address the adverse impacts of the SFFA decision.
The panel, composed of leading experts on the law of racial discrimination, discussed the domestic and international legal implications of SFFA as well as its practical implications for the lived reality of those who face discrimination.
Panelists
Gerald L. Neuman (moderator) is the Director of the Human Rights Program, and the J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law at Harvard Law School. He teaches courses in international human rights law, immigration and nationality law, and U.S. constitutional law. From 2011 to 2014, Neuman served as a Member of the UN Human Rights Committee.
Guy-Uriel E. Charles is the Charles J. Ogletree Jr. Professor of Law at Harvard Law School where he also directs the Charles Hamilton Institute for Race and Justice. His scholarship focuses on how law mediates political power and how law addresses racial subordination. Professor Charles was appointed by President Joseph Biden to the Presidential Commission on the Supreme Court of the United States.
Gay McDougall is a distinguished scholar-in-residence at the Leitner Center for International Law and Justice and Center for Race, Law and Justice of Fordham University School of Law. She has held positions such as Special Rapporteur to the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities, Independent Expert on minority issues for the UN Human Rights Commission, and member of the UN Committee on the Elimination of Racial Discrimination, to which she was elected in 2021 following renomination by President Biden.
E. Tendayi Achiume is the inaugural Alicia Miñana Professor of Law at UCLA Law, and former Faculty Director of the UCLA Law Promise Institute for Human Rights. She is currently the Leah Kaplan Visiting Professor in Human Rights at Stanford Law School and an Extraordinary Professor in the Department of Jurisprudence at the University of Pretoria. She is also a Research Associate with the African Centre for Migration and Society at the University of Witwatersrand, and a Research Associate with the Refugee Studies Center at the University of Oxford. From 2017-2022, Professor Achiume was the UN Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance.
Justin Hansford is a Howard University School of Law Professor of Law, a founding Executive Director of the Thurgood Marshall Civil Rights Center, and a member of the UN Permanent Forum on People of African Descent. He was previously a Democracy Project Fellow at Harvard University, a Visiting Professor of Law at Georgetown University Law Center, and an Associate Professor of Law at Saint Louis University. Professor Hansford is a leading scholar and activist in the areas of critical race theory, human rights, and law and social movements.

[@michaelpcoffee]

Fortunately; no other power has any jurisdiction in the United States. Government has no right to discriminate based on race. That includes government schools. We should abolish all race based government policies.

[@abcgums3107]

Are you guys sad that blacks can no longer get in with 2.0 GPA? 😂