Affirmative action in education is supported by Respondents on two grounds: remedial action for past and present discrimination and promotion of campus diversity. This brief focuses exclusively on the first proposition, and recasts it in the language of reparations: affirmative action in education is justified as reparations for the crimes of slavery and de jure racial discrimination. Such reparations are not only permissible under the Equal Protection Clause of the Fourteenth Amendment, but may well be required in order to fulfill its mission.

The Fourteenth Amendment is not a purely ‘color blind' enactment, but is a necessary legal tool for equality in the aftermath of chattel slavery. Use of the Fourteenth Amendment to strike down reparations for African Americans is strikingly inapposite to its purpose, language and intent.

Strict scrutiny is not required in the cases before the Court today. Suspect racial classification is not required under a remedial affirmative action analysis, since the recipients are identified on the basis of a common injury rather than race. If the injured persons are in fact identified racially, that identification was made by the oppressors rather than the oppressed. Consequently, a less stringent level of review is appropriate here.

The remedial use of affirmative action is entirely consistent with Equal Protection, as demonstrated in the obligations of the United States under the Convention on the Elimination of All Forms of Racial Discrimination.

The Michigan affirmative action educational programs before the Court today should be upheld as reparations to African Americans. If remand is necessary, lower courts should be instructed to uphold the programs to the extent they satisfy this compelling state interest.