International human rights are the supreme law of the land, and thus are a legitimate and valuable source of the permissibility of affirmative action. This source is not only found in federal law relevant to decision making at federal and state levels, but is also found in federal policy which is relevant to the issue of federal preemption. Treaty-based permissibility does not however guarantee that particular measures of affirmative action will survive challenges under other constitutional provisions, but it is relevant to an evolving theory of constitutional rights. Indeed, treaty-based permissibility of affirmative action, coupled with other relevant sources, provide the basis for a compelling state interest for both federal and state initiatives, especially concerning higher education.
Jordan J. Paust,
The Permissibility of Affirmative Action in Higher Education Under Human Rights Law,
N.Y. City L. Rev.
Available at: http://academicworks.cuny.edu/clr/vol3/iss1/11