Ruth Bader Ginsburg

Remarks on the Value of Diversity - July 17, 2009

Ruth Bader Ginsburg
July 17, 2009— Sciences Po, Paris Institute of Political Studies, France
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Excerpt of Justice Ginsburg's keynote speech at the 2009 graduation ceremony at Sciences Po (Paris Institute of Political Studies).

Members of the faculty, graduating students and their families, and friends of Sciences Po, I am glad to speak at this celebration. I have read of Sciences Po’s initiative to achieve excellence in diversity, made a priority by President Descoings. Through that initiative, talented students from all quarters of French society are drawn to this great school. The design is to deepen the complexion and life experiences of the student body and, eventually, the top ranks of government and business in France. Other institutions of higher education have copied the model set by Sciences Po, and that is a measure of the program’s success.

In the United States, kindred efforts to embrace a wider society in schools and workplaces started in the late 1960s, and I have been told that affirmative action—or what Europeans call positive discrimination—would be an appropriate topic for this talk.


I will begin with a few comparative side glances. Several post-World War II human rights charters recognize that a nondiscrimination principle alone will not ensure substantive equality. To combat centuries of inequality and to uplift people disadvantaged because they belong to long subordinated populations, many modern constitutions allow, or even require, affirmative action. India’s 1950 constitution is a prime example. Among other affirmative action provisions, it broadly instructs the Government to “promote with special care the educational and economic interests of the weaker sections of the people.” For another example, South Africa’s 1996 constitution provides that, to promote achievement of equality, “legislative and other measures [may be taken] to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination.” In nations forming the European Union, in contrast to India and South Africa, no similarly entrenched caste system existed and no suppression of the majority by the minority propelled positive discrimination. But European Union charters and directives, from the 1957 Rome Treaty to the 2000 Charter of Fundamental Rights, have advanced equal opportunity for women. The Charter confirms that “the principle of equal treatment” does not impede Member States from adopting special measures to facilitate women’s pursuit of vocational activities and professional careers.

On the world stage, two key United Nations covenants endorse affirmative action. First in time, the 1965 Convention on the Elimination of All Forms of Racial Discrimination declares: “Special measures taken for the [sole] purpose of securing adequate advancement of certain racial or ethnic groups . . . shall not be deemed racial discrimination.” Next, the 1979 Convention on the Elimination of All Forms of Discrimination Against Women, excludes from the definition of discrimination the “[a]doption . . . of temporary special measures aimed at accelerating de facto equality between men and women.”

The constitutions of the United States and France contain no provisions resembling the two I have just read. The U. S. Constitution, as amended in 1868, simply prohibits denial of “the equal protection of the laws.” The 1958 constitution of France states in Article I a more precise principle: It declares the equality of citizens “without distinction of origin, race or religion.” In keeping with that declaration and French tradition, I am told, no law or policy in France describes individuals or groups by race or ethnicity. Instead, educational priority zones, urban development strategies, and similar measures keyed to geographical location aim to advance the fortunes of people living in economically depressed areas. Having barely sketched some prescriptions on equality nationally and internationally, I will devote the remainder of my remarks to some of the endeavors to make the equality ideal more than aspirational in the land in which I live and work, the United States.


Affirmative action efforts in the United States, reflect distinctive aspects of our history. All people residing in France properly qualified for citizenship without regard to race or religion following the Revolution. But in the United States slavery persisted in the South until outlawed by our Civil War and an 1865 constitutional amendment. So-called Jim Crow laws replaced Slave Codes in several States, laws that imposed a rigid and pervasive system of racial segregation that continued past the midpoint of the twentieth century. Although World War II made unmistakably clear to the world the evil of racism, one cannot erase the past in short order. “In the wake of a system of racial caste only recently ended,” President Lyndon Johnson told the Nation in 1965, “[f]reedom is not enough. You do not wipe away the scars of centuries by saying: ‘Now you are free to go where you want . . . do as you desire, [elect your] leaders [.]’”

Affirmative action in the United States has had a seesaw, up and down history. The term was coined in 1961, but implementation of the concept did not shift into high gear until the administration of Republican President Richard Nixon. In 1969, Nixon’s Labor Department published its pathmarking Philadelphia Plan, in large part to combat high rates of unemployment among African-American men, and to break down nepotism in the construction trades. The plan required construction enterprises that held contracts with the Government to set goals and timetables for hiring minority workers. Enterprises that failed to comply risked termination of their contracts.

Within just a few years, the model was extended to cover the whole of the United States and all government contracts, including those held by universities. Coverage was also expanded to include women as well as racial and ethnic minorities. I was the beneficiary of the Nixon Administration’s affirmative action effort when, in 1972, I was engaged by the Columbia University law faculty as the first woman ever to hold a tenured position there.

During the period the Administration was promoting affirmative action, the U.S. Supreme Court supplied important guidance on the scope of Title VII of the 1964 Civil Rights Act, the nation’s principal law on anti-discrimination in employment. Title VII prohibits discrimination by employers, private and public, on the basis of race, color, religion, sex, or national origin. In Griggs v. Duke Power Company, a 1971 decision, the Supreme Court unanimously ruled that Title VII outlawed “not only overt discrimination but also practices . . . fair in form, but discriminatory in operation”—practices that had a “disparate impact” on minority group members or women. Merely stopping intentional discrimination, the Court acknowledged, would not accomplish Congress’ objective. To open doors, employers had to examine their employment practices and eliminate requirements that screened out minorities and women, unless the policy or practice was manifestly related to job performance—necessary to the safe and efficient operation of the business.

The Griggs case itself involved a high school diploma requirement, even for low-level jobs that could be performed perfectly well by people who could not meet that measure. (In the State where Duke Power maintained its plant, North Carolina, most African-Americans, in the 1970s, were not high school graduates.) A host of exclusionary practices were dropped as a result of the Griggs disparate-impact ruling, for example, height or weight-lifting requirements for piloting planes or police officer jobs—requirements few women could meet.

The “disparate impact” or indirect discrimination concept reached selection criteria that operated as “built-in headwinds” for minorities or women. But the Griggs decision did not address the question whether express preferences could be given to minorities by employers or educational institutions.

The U. S. Supreme Court first ruled on the constitutionality of preferential systems in a university setting in 1978. The case, Regents of the University of California v. Bakke, involved a challenge by a disappointed white male applicant to a California medical school. The school’s affirmative action plan reserved 16 out of 100 places in the entering class for members of minority groups. Dividing 5 to 4, the Court held that the reservation violated the Constitution’s equal protection principle. (In U. S. courts, unlike French courts, all appellate judges are free to file dissenting opinions, or separate concurring opinions, that are published together with the opinion of the Court.) The controlling opinion in the Bakke case said that race could be considered as one factor among others in an admissions process that treated each individual discretely. But outright quotas or reservations of a set number of places for minority-group students, the majority held, are unconstitutional. Past societal discrimination, five Justices agreed, could not justify plans like the medical school’s. While rejecting compensatory justifications for quotas or set asides, the dispositive opinion approved milder forms of affirmative action aimed at achieving a racially diverse student body. The educational experience for all students, the opinion reasoned, would be enhanced if members of different cultures live and learn together. That very understanding underlies the Sciences Po initiative.

The U. S. Supreme Court most recently addressed affirmative action in university admissions in 2003, in paired cases from the University of Michigan. One of the two cases involved the undergraduate school, which automatically awarded minority group members 20 points of the 100 needed to gain admission. The other case involved the law school, which assigned no additional points but treated race or ethnicity more flexibly as a plus factor. The Court disapproved the undergraduate program because, the majority said, it put members of minority groups on a separate track. But it upheld the law school’s program because that program advanced diversity without establishing a quota or separate track.

I would have upheld both University of Michigan programs and wrote in dissent in the undergraduate school case: “Actions designed to burden groups long denied full citizenship stature are not sensibly ranked with measures taken to hasten the day when entrenched discrimination and its after effects have been extirpated.” “If honesty is the best policy,” I added, the undergraduate school’s transparent “affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises.”

Four years after the Michigan University cases, the Court divided 5 to 4 again, this time on the constitutionality of lower school programs in Seattle, Washington and Louisville, Kentucky—programs designed to keep kindergarten through 12th grade classes racially integrated despite the high degree of neighborhood separation along racial lines. To maintain integration, the cities’ school boards took race into account in assigning children to particular schools. The Court held the programs unconstitutional. Unlike the University of Michigan law school program, the Court said, race in the lower school plans was “decisive by itself.” Moreover, the Court added, the Michigan case involved “considerations unique to higher education.” The lead opinion ended with an attention-riveting line: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

The four dissenters—I was one of them—saw the Seattle and Louisville plans differently. There is a “legal and practical difference,” we said, “between the use of race-conscious criteria . . . to keep the races apart, and the use of race-conscious criteria . . . to bring the races together.”

To complete the picture, I will note the Court’s latest decision on disparate impact. Making headlines, the Court held, on June 29, 2009, once again 5 to 4, that a city—New Haven, Connecticut, home to Yale University—could not set aside the results of promotional exams for firefighters, though certifying the results would mean no African-Americans could be promoted for at least two years. In dissent, I pointed to multiple flaws in the test design, flaws that severely undermined the reliability of the exams and made it likely that black firefighters would not be promoted, despite their readiness to hold command positions. The Court’s opinion in the firefighters case does not destroy the “disparate-impact” concept, but it does significantly limit its application.

Comparing the unanimous 1971 Griggs decision with the U. S. Supreme Court’s current decisions, a cynic might observe that the true symbol of the United States is not the bald eagle; it is the pendulum. Responding to a changed political climate, a few States have endeavored to reduce inequality in access to higher education by means that do not explicitly invoke a racial criterion. A decade ago, Texas enacted a “Top 10% Law,” under which any student who graduates in the top 10 percent of his or her high school class automatically qualifies for admission to any public undergraduate college in the State. A few other states have since adopted similarly designed, on the surface race-blind, policies. Because of residential segregation, these States have achieved a measure of diversity through their percentage plans.

Ironically, schools in poor neighborhoods have gained greater popularity as a result of percentage plans. One can get into the top 10 percent more easily in lower performing schools located in poor neighborhoods than in highly competitive schools located in more affluent neighborhoods.


In sum, affirmative action measures are controversial because they send both inspiring and disturbing messages. Affirmative action and the disparate-impact concept have potential to lessen substantive inequality, foster diversity, and promote the economic and social well being of people raised in unprivileged communities. But they also generate opposition, charges that they unfairly discriminate against individuals not personally responsible for society’s transgressions. I do not downplay the opposition, but balancing the pro’s and con’s, I subscribe to what Justice O’Connor wrote in the Michigan law school case: “[T]o cultivate . . . leaders with legitimacy in the eyes of the citizenry, . . . the path to leadership must be visibly open to the talented . . . individuals of every race and ethnicity.” “Effective participation by members of [minority groups and women] in the civil life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.” We will all profit from a more diverse, inclusive society, understanding, accommodating, even celebrating our differences, while pulling together for the common good.

Congratulations on your graduation from a school known far and wide as one of the very best institutions of higher education. Cheers, too, to the parents and teachers who nurtured you and contributed to your will to aspire and achieve. And as you leave here and proceed along life’s paths, try to leave tracks. Use the education you have received to help repair tears in your communities. Take part in efforts to move those communities, your Nation, and our world closer to the conditions needed to ensure the health and well-being of your generation and generations following your own.

My applause on your achievement and every good wish.

“The Value of Diversity: Ruth Bader Ginsburg’s 2009 Keynote Speech.” SciencesPo.