PERIODIC REPORT
OF THE
UNITED STATES OF AMERICA
TO THE U. N. COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION
CONCERNING THE INTERNATIONAL CONVENTION ON THE
ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION
APRIL 2007
PERIODIC REPORT OF THE UNITED STATES
TO THE U.N. COMMITTEE ON THE ELIMINATION OF RACIAL
DISCRIMINATION

PERIODIC REPORT OF THE UNITED STATES
TO THE U.N. COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION
Introduction

1. The Government of the United States of America welcomes the opportunity to report to the Committee on the Elimination of Racial Discrimination on measures giving effect to its undertakings under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), pursuant to article 9 thereof. This document constitutes the fourth, fifth, and sixth periodic reports of the United States. Its organization follows the General Guidelines regarding the form and contents of periodic reports to be submitted by States parties, adopted by the Committee in August 2000 (CERD/C/70/Rev.5) and the guidelines for Initial Parts of State Party Reports (“Core Documents”) (HRI/GEN/2/Rev 3) of 8 May 2006.

2. This report was prepared by the U.S. Department of State with extensive assistance from the White House, the Civil Rights Division of the U.S. Department of Justice, the Equal Employment Opportunity Commission, and other relevant departments and agencies of the federal government and of the states. Contributions were also solicited and received from interested members of the numerous non-governmental organizations and other public interest groups active in the area of civil rights, civil liberties, and human rights in the United States.

3. The United States submitted its initial, second, and third periodic reports as a single document to the Committee on the Elimination of Racial Discrimination in September 2000, hereinafter “Initial U.S. Report” or “Initial Report.” A copy can be viewed at http://www.state.gov/. The United States made its oral presentation to the Committee on August 3 and 6, 2001. Accordingly, the purpose of this fourth, fifth, and sixth periodic report is to provide an update of relevant information since the submission of the Initial Report.

4. The legal and policy framework through which the United States gives effect to its Convention undertakings has not changed dramatically since the Initial Report. As described in that Report, the United States Constitution; the constitutions of the various states and territories; and federal, state, and territorial law and practice provide strong and effective protections against discrimination on the basis of race, color, ethnicity, and national origin in all fields of public endeavor and with regard to substantial private conduct as well. These protections, as administered through executive action and the judicial system, continue to apply.

PART I. GENERAL

A. Background

5. The information provided in this report supplements that provided in the Initial U.S. Report filed in 2000 (CERD/C/351/Add.1). It also supplements the information provided by the U.S. delegation at the meetings of the Committee, which discussed the Initial U.S. Report on August 3 and 6, 2001 (CERD/C/SR/1474, 1475, 1476). The information provided herein takes into account the concluding observations of the Committee (CERD/A/56/18, paragraphs 380-407), published on August 14, 2001, as well as relevant general Committee recommendations and other Committee actions.

6. In this consolidated report, the United States has sought to respond to the Committee’s concerns as fully as possible. In this regard, the United States notes the discussion of U.S. reservations, understandings, and declarations to the Convention contained in paragraphs 145 through 173 of the Initial U.S. Report. The United States maintains its position with regard to these reservations, understandings, and declarations, and with respect to other issues as discussed in this report.

B. Land and People

7. Neither the land area nor the basic federal-state organization of the United States has changed since submission of the Initial U.S. Report in 2000. Nor has there been change in the relationship between the United States and the outlying areas under U.S. jurisdiction – Puerto Rico, the Virgin Islands, American Samoa, Guam, the Northern Mariana Islands, and several very small islands.

1. Update of General Census Data

8. The population of the United States, which was 281.4 million at the time of the 2000 census, was estimated to be 296.4 million in July 1, 2005 – an increase of approximately 5.3 percent. By the year 2010, the population is projected to be 308.9 million – an increase of approximately 9.8 percent from 2000; and by 2050, the population is projected to have increased by 49.2 percent from the 2000 figure, to 419.9 million.

9. The U.S. is a multi-racial, multi-ethnic, and multi-cultural society in which racial and ethnic diversity is ever increasing. Virtually every national, racial, ethnic, cultural, and religious group in the world is represented in the U.S. population. As described in the Initial U.S. Report, the racial and ethnic categories used since 1997 in the U.S. census are: White; Black or African American; American Indian and Alaska Native (AIAN); Asian; and Native Hawaiian and Other Pacific Islander (NHPI). Members of these racial categories are also classified separately as belonging to one of two ethnic categories: Hispanic or Latino origin, or non-Hispanic or Latino origin.[1]

10. In the 2000 census, 97.6 percent of all respondents reported only one race. The group reporting White alone accounted for 75 percent of the population, down from about 80 percent in 1990. The Black or African American alone population represented just over 12 percent of the total, approximately the same as in 1990. Just under 1 percent of all respondents indicated American Indian and Alaska Native only, also approximately the same as in 1990. About 4 percent indicated Asian alone, up from about 3 percent in 1990. The smallest racial group was the Native Hawaiian and Other Pacific Islander alone population, representing 0.1 percent of the total. The remainder of the “one race” respondents – 5.5 percent of all respondents – indicated only the “some other race alone” category, which consisted predominately of persons of Hispanic origin. This percentage was up from approximately 4 percent in 1990. Two and fourth tenths of a percent of all respondents reported two or more races, and 0.02 percent reported four or more races.

11. Looking at ethnicity, although the U.S. population remains primarily White non-Hispanic, the proportion of the population falling into that category is decreasing. Census projections from March, 2004 show that the White non-Hispanic portion of the population declined from 75.7 percent in 1990 to 69.4 percent in 2000, and is projected to decline further to 65.1 percent by 2010 and to 50.1 percent by 2050. Although the number of White non-Hispanic persons in the United States is projected to grow by 2.8 percent from 2000 to 2010, the growth rate for this group is projected to be much lower than the growth rates for other racial and ethnic categories. For example, during the 2000 to 2010 period, the Hispanic (of any race) population is projected to grow by 34.1 percent, the African American population to grow by 12.9 percent, the Asian population to grow by 33.3 percent, and the other races category (American Indian and Alaska Native alone, Native Hawaiian and Other Pacific Islander alone, and two or more races) to grow by 30.7 percent. In addition, in 2000 1.2 million people reported Arab ancestry, up from 610,000 in 1980. This represents a 41 percent rate of growth during the 1980s and a 38 percent growth in the 1990s. The table below contains census data on the projected population of the United States by race and Hispanic origin from 2000 to 2050.

Table 1a. Projected Population of the United States, by Race and Hispanic Origin: 2000 to 2050
(In thousands except as indicated. As of July 1. Resident population.)

1/ Includes American Indian and Alaska Native alone, Native Hawaiian and Other Pacific Islander alone, and Two or More Races

Source: U.S. Census Bureau, 2004, "U.S. Interim Projections by Age, Sex, Race, and Hispanic Origin," http://www.census.gov/ipc/www/usinterimproj/.

12. The distribution of the U.S. population by urban vs. rural residence and region of the country varied considerably by race and ethnicity in 2000. African Americans, Hispanics, and Asian Americans were more likely to live in urban areas (defined as areas with populations of 50,000 or more) than were non-Hispanic Whites. For example, in 2000, although African Americans alone represented only 12.3 percent of the population overall, they constituted 14.6 percent of the persons living in urban areas. Likewise, although Hispanics made up only 12.5 percent of the population overall, they represented 15.5 percent of urban inhabitants. Asian Americans alone represented 5 percent of urban inhabitants, compared to only 3.6 percent of the population overall. By contrast, non-Hispanic Whites composed 62.7 percent of urban dwellers compared to 69.1 percent of the population overall.

13. Of the total population in 2000, 19 percent lived in the Northeast; 23 percent in the Midwest; 36 percent in the South; and 22 percent in the West. However, over half of the African American population (54 percent) lived in the South, including 54.8 percent of those indicating African American alone, and 53.6 percent of the African American alone or in combination population. Other minority groups were concentrated in the West, including 43 percent of American Indians and Alaska Natives alone or in combination; 49 percent of Asians alone or in combination; 73 percent of Native Hawaiian and Other Pacific Islanders alone or in combination; and 43.5 percent of Hispanics.

14. According to the U.S. Census American Community Survey (ACS), in 2004 the foreign-born population was estimated to be 34.3 million (12 percent of the total U.S. household population). This represented an increase of 73 percent from 1990. The foreign-born population was located throughout the United States.
15. Within the foreign-born population, 42 percent were naturalized U.S. citizens. Of the foreign-born population, about one-in-five had entered the United States since 2000. The foreign-born population comes to the United States from throughout the world: 54.8 percent were born in the Americas (9.2 percent in the Caribbean, 36.3 percent in Central America, 6.7 percent in South America, and 2.4 percent in North America); 27 percent in Asia; 14.3 percent in Europe; 3.3 percent in Africa; and 0.6 percent in Oceania.

16. Although direct estimates of the unauthorized population are not available, recent efforts have yielded estimates of a residual population that includes unauthorized as well as “quasi-legal” migrants – persons who are legally present in the United States, but who have not obtained legal permanent resident (LPR) status. This residual foreign-born population was estimated to be about 3.8 million in 1990 and about 8.7 million in 2000. Of the residual foreign born population, about 27 percent were from Mexico in 1990 and about 47 percent were from Mexico in 2000.

17. Although English is the predominant language of the United States, in 2004 approximately 50 million (19 percent) of the 266 million people aged 5 and above spoke a language other than English at home. Thirty-one million people spoke Spanish, and 7.6 million spoke an Asian or Pacific Island language. French and German were the next most common languages spoken. In 2004, twenty-two million people (8.4 percent of the total population) indicated that they did not speak English “very well.” The highest percentages of non-English speakers were found in the states of California, New Mexico, and Texas.

2. Socio-Economic Data on American Indian and Alaska Native Populations and Native Hawaiian and Other Pacific Islander Populations

18. In its comments and recommendations of August 14, 2001, the Committee requested additional socio-economic data on, in particular: (a) the indigenous and Arab American population; and (b) the populations of the States of Alaska and Hawaii. That information is included in this and the following sub-sections.

19. There are 561 federally-recognized American Indian Tribes and Alaska Native tribal governments in the United States. Each tribe generally has its own language, culture, and tribal political and governmental system. Numerous groups are also petitioning through an established federal process to have their tribal status determined. In 2000, 74 percent of all AIAN respondents reported a specific tribal affiliation. The tribal groupings that included 100,000 or more persons were Cherokee, Navajo, Latin American Indian, Choctaw, Sioux, and Chippewa.[2]

20. Of the total United States population, 2.5 million people (0.9 percent) reported AIAN alone, and an additional 1.6 million reported AIAN and at least one other race. The AIAN population grew at a greater rate than the general population from 1990 to 2000, increasing between 26 percent and 110 percent, depending on whether AIAN alone or AIAN in combination with other races was measured. Forty-three percent of this population lived in the west, and 31 percent lived in the south. The AIAN population has a slightly higher ratio of males to females than does the population as a whole: the AIAN alone population had 99.4 males for every 100 females, and the AIAN alone or in combination population had 97.5 males for every 100 females; by contrast, the total population had 96.1 males for every 100 females. The AIAN population also tends to be somewhat younger than the U.S. population: 33.3 percent were under 19, as compared to 25.6 percent for the nation as a whole.

21. In 2000, 874,000 persons (0.3 percent of the population) identified as Native Hawaiian and Other Pacific Islander. Of these, approximately 46 percent said they were NHPI alone, and 54 percent identified as NHPI in combination with other races. The most common combination was NHPI and Asian. The NHPI category includes diverse populations differing in language and culture, with Polynesian, Micronesian, and Melanesian cultural backgrounds. The NHPI category is unique in that it is the only racial category for which the number of respondents reporting two or more races was higher than the number reporting only one race. The NHPI population increased at a rate between 9 and 140 percent from 1990 to 2000, depending on whether NHPI alone or in combination with other races was measured. About three-quarters of this group lived in the west, and over half lived in Hawaii and California (although the 50 percent figure was a reduction from 1990). Native Hawaiian was the largest group, followed by Samoans, and Guamanians or Chamorros. Together these groups constituted 74 percent of the persons reporting NHPI alone, and 71 percent of the NHPI in combination group.

22. The AIAN population tends to have lower school attendance and rates of educational attainment than the U.S. population as a whole, although these rates are improving. The same is also true for the NHPI population, although the NHPI percentages are closer to the national average. For the U.S. population in general, the high school dropout rate (the percentage of 16-19 year olds not enrolled in high school and not high school graduates) was 9.8 percent in 2000, down from 11.2 percent in 1990. By contrast, 16.1 percent of AIAN alone students had dropped out of high school, down from 18.1 percent in 1990. The dropout rate for NHPI alone students was 11 percent for both 2000 and 1990. Likewise, college attendance for both groups was below the national average. Overall, 34 percent of young adults (18 to 24 years old) in the U.S. attended college in 2000, compared to 21 percent for the corresponding AIAN alone population and 30 percent for the corresponding NHPI alone population. These patterns were reflected in overall educational attainment for persons more than 25 years old:

Overall Educational Attainment AIAN alone NHPI alone Overall
High School Graduate or more 70.9% 78.3% 80.4%
Some college or more 41.7% 44.6% 51.8%
BA or more 11.5% 13.8% 24.4%
Advanced degree 3.9% 4.1% 8.9%

(Source: Census 2000: Educational Attainment of the Population 25 Years and Over by Age, Sex, Race, and Hispanic or Latino Origin.)

23. Lower educational attainment, in turn, is reflected in the statistics concerning employment, occupation, and income. The 2004 American Community Survey showed that unemployment was higher for the AIAN alone (14 percent) and NHPI alone (9.9 percent) populations than for the population as a whole (7.2 percent). Those who were working tended to work less in management and more in jobs such as construction and transportation. For example, while 33.6 percent of the overall population worked in management and professional positions, 24.3 percent of the AIAN alone and 23.3 percent of the NHPI alone populations worked in those professions. American Indians and Alaska Natives alone tended to work more heavily in production, transportation and material moving (16.8 percent compared to 14.6 percent overall), construction (12.9 percent compared to 9.4 percent overall), and farming, fishing and forestry (1.3 percent compared to 0.7 percent overall). Likewise, Native Hawaiians and Other Pacific Islanders alone tended to work more heavily in the service professions (20.8 percent compared to 14.9 percent overall) and in transportation and material moving (16.5 percent compared to 14.6 percent overall).

24. In 1999, household income for these two groups was also less than the national average. Compared to a mean household income of $56,644 for the population overall, the mean for the AIAN alone population was $40,135, and that for the NHPI alone group was $53,096. The 2004 American Community Survey showed poverty rates of 24.7 percent for the AIAN population and 18.1 percent for the NHPI group, compared to 13.3 percent overall. For families, the figures were 10.1 percent for all families, contrasted with 20.5 percent for AIAN families and 15.1 percent for NHPI families. Monthly housing costs were among the lowest for AIAN alone inhabitants – $879 compared to the national median of $1,088 for units with a mortgage, and $216 compared to $295 for units without a mortgage. On the other hand, monthly housing costs for NHPI alone members were higher than the national median for units with a mortgage ($1,261) and close to the median for non-mortgage units. This may be because NHPI persons are concentrated in California and Hawaii, two states with very high homeowner costs and housing values.

3. Socio-Economic Data on the Arab-American Population

25. Census 2000 was the first U.S. census to analyze data and produce reports specifically on U.S. persons of Arab ancestry. In 1997, when the U.S. Census Bureau revised the federal standards for classification of race and ethnicity, it noted a lack of consensus on the definition of an Arab ethnic category, and recommended further research. The reports from the 2000 census are contributing to this ongoing research, and are being analyzed in consultation and collaboration with experts in the Arab community. Persons considered as being of Arab ancestry for purposes of the census reports were those who indicated ancestries originating from Arabic-speaking countries or areas of the world – persons who reported being Arab, Egyptian, Iraqi, Jordanian, Lebanese, Middle Eastern, Moroccan, North African, Palestinian, Syrian, etc. As many as two ancestries were tabulated per respondent and, if either fell into the definition of Arab, the person was considered to be “of Arab ancestry” for purposes of analysis.

26. In 2000, 1.2 million people reported Arab ancestry – up from 860,000 in 1990 and 610,000 in 1980. This represents a 41 percent increase in the 1980s and 38 percent increase in the 1990s. Approximately 850,000 of these 1.2 million persons reported only Arab ancestry (either one Arab ancestry or two ancestries both of which were Arab). In addition, more than a quarter of the Arab population (28 percent) also reported a second, non-Arab ancestry; among those, 14.7 percent reported Irish, 13.6 percent Italian, and 13.5 percent German. Lebanese, Syrian, and Egyptian ancestry accounted for about three-fifths of the Arab ancestries reported: 37 percent indicated Lebanese ancestry, 12 percent Syrian, and 12 percent Egyptian. The next highest was Palestinian, at 6 percent. A substantial portion of the Arab population (20 percent) identified themselves as having general Arab ancestries, such as Arab, Arabic, Middle Eastern, or North African. Those who described their ancestry in general terms as “Arab,” “Arabic,” or some other generalized term were most likely to be under 18, while those who made specific designations, such as “Syrian” or “Lebanese,” were more likely to be older.

27. The population indicating solely Arab ancestry also tended to be more heavily male than the U.S. population overall – 57 percent compared to 49 percent population wide. The median age of the male Arab population was 33 years – two years below the median age for the total U.S. population of males, which was 35 years. The female Arab population tended to be most highly concentrated in the 0-9 and 20-35 age ranges.

28. The Arab population was fairly evenly distributed among the four regions of the United States, with about half of that population concentrated in five states: California, Florida, Michigan, New Jersey, and New York. Michigan had the highest proportion of Arabs in its population, and six of the ten largest cities in the United States were among the ten places with the largest Arab populations (New York, Los Angeles, Chicago, Houston, Detroit, and San Diego).

29. The socio-economic data below describe persons of sole Arab ancestry, i.e., those indicating only one Arab ancestry or two ancestries both of which were Arab. Almost half of the residents of sole Arab ancestry (46 percent) were born in the United States or born abroad to U.S. citizen parents, compared to 89 percent for the U.S. as a whole. Of the 54 percent who were foreign born, approximately half had arrived during the 1990s, and over half had become naturalized citizens by 2000 – a higher proportion than for the U.S. foreign-born population as a whole.

30. Persons of sole Arab ancestry tended to be more highly educated than the U.S. population as a whole. More than 40 percent of Arab Americans 25 years of age or older had college degrees or higher, as compared to 24 percent for the population as a whole. Likewise, the proportion of Arabs 25 years or older with high school diplomas or higher (84 percent) exceeds that for the population as a whole (80 percent). The population of sole Arab ancestry also tended to live in married households at a greater rate than the population as a whole – 60 percent compared to 53 percent. Female family householders with no husband present were less common among Arab households than among U.S. households as a whole – 6 percent as compared to 12 percent. Similar relationships are seen when comparing the Arab population as a whole (including those with two ancestries one of which was not Arab) to the total U.S. population. Although 69 percent of Arabs of sole Arab ancestry spoke a language other than English at home, 65 percent of those indicated that they spoke English “very well” – representing 44 percent of overall Arabs aged five and older.

31. Persons of sole Arab ancestry tended to work in management, professional, and related occupations at a higher rate than the population as a whole; approximately 42 percent of Arabs aged 16 and above worked in those occupations, compared with 34 percent for the U.S. overall. Likewise, a higher proportion of persons of sole Arab ancestry tended to work in sales and office occupations than the population as a whole (30 percent compared to 27 percent), while the proportion of the sole Arab population working in construction, extraction, and maintenance jobs was lower (5.4 percent compared to 9.4 percent), as was the proportion working in production, transportation, and material moving (10.7 percent compared to 14.6 percent). Men of Arab descent were more likely, and women less likely, to be in the labor force than their counterparts in the total population.

32. Median earnings for the sole Arab population were also higher than those for the U.S. population overall (for men, $41,700 compared to a national median of $37,100, and for women $31,800 compared to a national median of $27,200). This was also true for Arab families, which had higher median incomes than U.S. families in general ($52,300 compared to $50,000). Nevertheless, a higher percentage of persons of sole Arab ancestry fell into the poverty range (17 percent compared to 12 percent). Poverty rates were highest among those younger than 18 years.

4. Socio-Economic Data on the Populations of the States of Alaska and Hawaii

33. Alaska is the largest state in the United States in land area, but has one of the smallest populations – only 626,932 persons in 2000. In 2000, its population was more heavily male and slightly younger than the national average. For persons listing one race, Alaska’s population was much more heavily American Indian and Alaska Native than the national average – 15.6 percent as opposed to 0.09 percent. By contrast, its African American alone population was smaller (3.5 percent as opposed to 12.3 percent), and its White population was also smaller (69.3 percent as opposed to 75.1 percent) than the national average. Its Asian population was slightly above the national average (4 percent as opposed to 3.6 percent). The percentage of the Alaska population listing Hispanic ethnicity was considerably below the national average (4.1 percent as opposed to 12.5 percent). Persons listing two or more races were also elevated in Alaska – 5.4 percent as opposed to 2.4 percent nationally. Alaska had a considerably lower percentage of foreign born residents than the nation as a whole (5.9 percent as opposed to 11.1 percent nationally).

34. Alaska’s population was somewhat more educated than the national average. Of the population 25 years and over, 88.3 percent of Alaskans were high school graduates or higher, contrasted with 80.4 percent nationally; and 24.7 percent of Alaskans had a college degree or higher, compared to 24.4 percent nationally. In Alaska, 14.3 percent of the population spoke a language other than English at home, as compared to 17.9 percent of the population in general.

35. A higher proportion of Alaska’s 16 years and older population was in the workforce than was true nationally (71.3 percent as opposed to 63.9 percent). Likewise, fewer Alaskan families and individuals fell below the poverty level than was true nationally (6.7 percent compared to 9.2 percent for families, and 9.4 percent compared to 12.4 percent for individuals).

36. By contrast, the population of Hawaii in 2000 was 1,211,537, about twice that of Alaska. Also in contrast to Alaska, Hawaii’s population was slightly older than the national average; for example, 13.3 percent of Hawaiians were 65 years and older, compared to 12.4 percent nationally. Hawaii was closer to the national average in its male-female ratio – 50.2 percent were male (compared to 49.1 percent nationally), and 49.8 percent were female (compared to 50.9 percent nationally). An unusually large proportion of Hawaiians described themselves as being of two or more races (21.4 percent compared to 2.4 percent nationally). Of those indicating only one race, Native Hawaiian and Other Pacific Islanders constituted 9.4 percent of the population, as opposed to 0.1 percent nationally. Asians also constituted an extremely high percentage of the population – 41.6 percent as opposed to 3.6 percent nationally. Conversely, the proportion of Whites was considerably lower – 24.3 percent, as compared to 75.1 percent nationally. In addition, African Americans and persons of Hispanic origin were less prevalent in Hawaii than in the nation as a whole. African Americans alone constituted only 1.8 percent of the population, compared to 12.3 percent nationally, while persons of Hispanic ethnicity made up only 7.2 percent of the Hawaiian population, compared to 12.5 percent nationally.

37. Like Alaska, the people of Hawaii tended to have higher levels of education than the national average. Eighty four point six percent of Hawaiians age 25 and older were high school graduates or higher, compared to 80.4 percent of the U.S. population overall. Twenty-six point two percent of Hawaiians had college degrees or higher, compared to 24.4 percent nationally. A considerably greater proportion of Hawaiians said that they spoke a language other than English at home – 26.6 percent compared to 17.9 percent nationally.

38. The proportion of Hawaiians in the labor force was slightly higher than the national average (64.5 percent compared to 63.9 percent), and Hawaiian individuals and families tended to fall below the poverty level at a lower rate than the total U.S. population (7.6 percent compared to 9.2 percent for families, and 10.7 percent compared to 12.4 percent for individuals). C. General Political Structure

39. Since the Initial U.S. Report in 2000, there have been no changes in the political structure of the United States, or its basic relationships with United States territories, or with the AIAN or NHPI populations. The Office of Hawaiian Relations within the Department of the Interior was established in the fall of 2005 to “preserve and promote Hawaii’s natural and historic resources and the Native Hawaiian culture.”

40. The issue of the federal government relationship with Native Hawaiians continues to be under discussion. The Initial U.S. Report noted that, in response to a U.S. Supreme Court case, Rice v. Cayetano, 528 U.S. 495 (2000), which cast doubt on the authority of Congress to legislate in a manner that grants Native Hawaiian preferences, the Departments of Interior and Justice were in the process of preparing a report on a reconciliation process between the federal government and Native Hawaiians. The final report, which encompassed the results of meetings and consultations with the Native Hawaiian community, was issued in October 2000. Based on meetings and consultations with the Native Hawaiian community, the report called for the federal government to honor the unique relationships with Native Hawaiians and to respond to their needs for more local control within the framework of Federal law. A version of the Native Hawaiian Government Reorganization Act has been introduced in every Congress since the 106^th (in 2000). When the Native Hawaiian Government Reorganization Act of 2005 was introduced in both chambers of the U.S. Congress, it would have formed a governing entity of and for Native Hawaiians, and extended to it federal recognition similar to the recognition extended to American Indian tribes. Specifically, it would have authorized the U.S. Government to enter into negotiations with this governing entity to address specified matters. The bill was thoroughly debated in a number of public forums, including the U.S. Civil Rights Commission, but failed to reach the floor for a vote in the United States Senate in 2005 or 2006. The Administration opposed the bill on the ground that it would “divide people by their race” and would raise serious and difficult constitutional questions regarding the permissibility of “race-based qualifications for participation in government entities and programs.” The Administration also questioned the authority of Congress to grant tribal status to Native Hawaiians. The U.S. Civil Rights Commission advised that this bill risked “further subdivid[ing] the American people into discrete subgroups accorded varying degrees of privilege.”

D. General Legal Framework

41. The basic Constitutional and legal framework through which U.S. obligations under the Convention are implemented remains the same. The Constitution provides for equal protection of the laws and establishes a carefully balanced governmental structure to administer those protections. Among other factors:

· Under the Fifth and Fourteenth Amendments, all persons are equal before the law and are equally entitled to constitutional protection. All states are equal, and none may receive special treatment from the federal government. Within the limits of the Constitution, each state must give “full faith and credit” to the public acts, records, and judicial proceedings of every other state. State governments, like the federal government, must be republican in form, with final authority resting with the people;

· The Constitution stands above all other laws, executive acts, and regulations, including treaties;

· Powers not granted to the federal government are reserved to the states or the people.

42. In addition to the civil rights protections of the federal Constitution, laws, and courts – state constitutions, laws, and courts play an important role in civil rights protections. In this regard, state constitutions and laws must, at a minimum, meet the basic guarantees of the U.S. Constitution. Moreover, in keeping with the federal system of government, in many cases state laws actually afford their citizens greater protections than the federal Constitution requires. See, e.g., Locke v. Davey, 540 U.S. 712, 724 n. 8 (2004) (noting that, “at least in some respects,” Washington State’s constitution provides greater protections than the Federal Free Exercise Clause).

43. Day-to-day administration and enforcement of federal laws rests in the hands of various executive departments and independent agencies. Since 2000, there have been only a few changes in the division of responsibilities described in that Report. Except for the changes noted in this report, the governmental structure in place to deal with discrimination remains basically as it was described in 2000.

44. Department of Homeland Security. As a result of the events of 11 September 2001 (hereinafter 9/11), Congress created a new Department of Homeland Security (DHS) in 2003. This Department combines a number of other departments, agencies, and portions of departments, such as the Coast Guard, the Transportation Security Administration, the Federal Emergency Management Agency, and the former Immigration and Naturalization Service. Within DHS, Congress established an Office for Civil Rights and Civil Liberties, led by the DHS Officer for Civil Rights and Civil Liberties who reports directly to the Secretary of Homeland Security. The Office is charged with investigating allegations of abuses of civil rights, civil liberties, and discrimination on the basis of race, ethnicity, and religion by employees or officials of the Department of Homeland Security. In addition, it assists the senior leadership in developing policies and initiatives that are mindful of fundamental rights and liberties and provides leadership to DHS’s Equal Employment Opportunity Program. The Office leads the Department’s civic engagement efforts and conducts outreach to non-governmental organizations and others, including the Arab American and Muslim American communities.

45. As part of the creation of the Department of Homeland Security, the Immigration and Naturalization Service (INS) ceased to exist as an independent agency within the Department of Justice. The functions of the former INS were transferred to three bureaus of the new DHS: U.S. Citizenship and Immigration Services (CIS), U.S. Immigration and Customs Enforcement (ICE), and U.S. Customs and Border Protection (CBP). The Executive Office for Immigration Review and Board of Immigration Appeals, however, remained within the Department of Justice. See Homeland Security Act of 2002, 116 Stat. 2135, 2178, 2192, Nov. 25, 2002.

46. Department of Defense. Within the Department of Defense, the former Deputy Assistant Secretary for Equal Opportunity has now been changed to a Deputy Under Secretary for Equal Opportunity. This position remains responsible for implementing and monitoring the Department’s civilian and military equal opportunity/affirmative action plan goals and objectives. The Department of Defense has numerous policies and programs designed to ensure equal opportunity in the military. The nature and scope of these programs are generally as described in the Initial U.S. report.

47. Other Agencies. Since 2000, several other agencies have also created new bureaus, offices, or training entities to work on issues related to racial and ethnic discrimination or to work specifically with various racial or ethnic groups. For example, the Department of the Interior (DOI) established the Office of Hawaiian Relations in 2005. In 2006, DOI set up a new bureau and office specifically to assist American Indians and Alaska Natives. DOI established: (1) the Bureau of Indian Education to improve academic achievement of Indian students served in the 184 schools on 63 Indian reservations in 23 states; and (2) the Office of Indian Energy and Economic Development, to bring new jobs, businesses, and funds to American Indian and Native Alaska communities. The Department of Housing and Urban Development (HUD) also formed several offices to address problems of discrimination in housing: (1) the Office of Systemic Investigations (OSI) to investigate cases with significant impact on population groups or geographic locations; (2) the Office of Education and Outreach (OEO) to increase public awareness of federal fair housing laws and HUD’s role in enforcing them; and (3) the National Fair Housing Training Academy to train housing discrimination investigators at local, state, and federal levels. The Agriculture Department also established the Office of Minority and Socially Disadvantaged Farmers. Finally, the United States Information Agency – which handles outreach to other nations – has been moved into the Department of State.

E. Information and Publicity

48. Information about human rights is readily available in the United States. As a general matter, persons are well informed about their civil and political rights, including the rights of equal protection, due process, and non-discrimination. The scope and meaning of – and issues concerning enforcement of – individual rights are openly and vigorously discussed in the media, freely debated within the various political parties and representative institutions, and litigated before the courts at all levels.

49. The expansion of internet services and the ever-increasing availability of internet access in the years since 2000 have made information concerning human rights and racial and ethnic discrimination even more readily accessible to the U.S. public. Virtually every federal and state agency has a website on which information about the agency structure and programs – including those of agency offices of civil rights – can be found. Many of these websites include relevant information in languages other than English, which increases dissemination both to persons with limited English proficiency within the U.S. as well as to persons outside the U.S. who may be interested in the civil rights protections that the U.S. affords its citizens and residents.

50. Information concerning the work of the UN Committee on Elimination of Racial Discrimination is likewise readily available on the internet in the United States, as are all U.S. reports to the Committee. As part of our public outreach, this periodic report will be published and made available to the public through the U.S. Government Printing Office and the depositary library system. Copies of the report and the Convention will also be widely distributed within the executive branch of the U.S. Government, to federal judicial authorities, to relevant members of Congress and their staffs, and to relevant state officials, state and local bar associations, and non-government human rights organizations. The report and the Convention will also be available on the Department of State website at http://www.state.gov.

51. Specific examples of publicity and outreach programs undertaken since the Initial U.S. Report are described below in the discussion of article 5.

F. Factors Affecting Implementation

52. As noted in the Initial U.S. Report, the United States has made significant progress in the improvement of race relations over the past half-century. Due in part to the extensive constitutional and legislative framework that provides for effective civil rights protections, overt discrimination is far less pervasive than it was in the early years of the second half of the Twentieth Century. As the United States continues to become an increasingly multi-ethnic, multi-racial, and multi-cultural society, many racial and ethnic minorities have made strides in civic participation, employment, education, and other areas.

53. Nonetheless, significant challenges still exist. Subtle, and in some cases overt, forms of discrimination against minority individuals and groups continue to plague American society, reflecting attitudes that persist from a legacy of segregation, ignorant stereotyping, and disparities in opportunity and achievement. Such problems are compounded by factors such as inadequate understanding by the public of the problem of racial discrimination, lack of awareness of the government-funded programs and activities designed to address it, lack of resources for enforcement, and other factors.

54. In addition, two subjects of concern have been particularly acute in the years since 2000. The first involves the increase in bias crimes and related discriminatory actions against persons perceived to be Muslim, or of Arab, Middle Eastern, or South Asian descent, after the terrorist attacks of 9/11. The second involves the impacts of the changing demographic caused by high rates of immigration into the United States – both legal and illegal. The continuing legacies described above, in addition to these more recent issues, create on-going challenges for the institutions in the United States that are charged with the elimination of discrimination. Thus, despite significant progress, numerous challenges still exist, and the United States recognizes that a great deal of work remains to be done.

PART II. INFORMATION RELATING TO ARTICLES 2 to 7 OF THE CONVENTION

55. The United States is a vibrant, multi-racial, multi-ethnic, and multi-cultural democracy in which individuals have the right to be protected against discrimination based, inter alia, on race, color, and national origin in virtually every aspect of social and economic life. The U.S. Constitution and federal law prohibit discrimination in a broad array of areas, including education, employment, public accommodation, transportation, voting, housing and mortgage credit access, as well as in the military, and in programs receiving federal financial assistance. In addition, nondiscrimination obligations are imposed on federal contractors and subcontractors by Executive Order. The federal government has established a wide-ranging set of enforcement procedures to administer these laws and Executive Orders, with the U.S. Department of Justice exercising a major coordination and leadership role on most critical enforcement issues. State and local governments also have complementary legislation and enforcement mechanisms to further these goals. At both the federal and state levels, enforcement agencies have worked, and continue to work, to improve enforcement of civil rights laws and to promote education, training, and technical assistance.

56. As noted in the Initial U.S. Report, although the definition used in article 1 (1) of the Convention contains two specific terms (“descent” and “ethnic origin”) not typically used in U.S. federal civil rights legislation and practice, no indication exists in the negotiating history of the Convention that those terms encompass characteristics not already subsumed in the terms “race,” “color,” and “national origin” as those terms are used in existing U.S. law. See, e.g., Saint Frances College v. Al-Khazraji, 481 U.S. 604 (1987); Shaare Tefila Congregation v. Cobb, 481 U.S. 615 (1987); Roach v. Dresser Industrial Valve, 494 F. Supp. 215 (W.D. La. 1980). The United States thus interprets its undertakings and intends to carry out its obligations under the Convention on that basis.

57. The United States collects its census data in a manner that allows analysis and assessment by racial, ethnic, gender, and other characteristics. In addition, in the 2000 census, information was also collected on Americans of Arab ancestry. Census information relevant to this periodic report was presented in Part I and will be referenced, as appropriate, in this section.

Article 2

A. Information on the legislative, judicial, administrative, or other measures that give effect to the provisions of article 2, paragraph 1, of the Convention.

1. Measures taken to give effect to the undertaking to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation

58. As required by article 2 (1) (a), racial discrimination by the government is prohibited throughout the United States. The Fifth, Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution guarantee that no public authority may engage in any act or practice of racial discrimination against persons, groups of persons, or institutions. These prohibitions apply with equal force at the federal, state, and local levels, and all public authorities and institutions must comply. U.S. law extends this prohibition to private organizations, institutions, and employers under many circumstances. Examples of enforcement actions against both public and private institutions are set forth in subsection 2 below and throughout this report.

2. Measures taken to give effect to the undertaking not to sponsor, defend or support racial discrimination by any persons or organizations

59. As required by article 2 (1) (b), the U.S. Government does not sponsor, defend, or support discrimination. The U.S. Constitution prohibits discrimination on the basis of race at every level of government – federal, state, and local. A number of federal statutes, including the Civil Rights Act of 1964, prohibit discrimination by state or local governments; private entities in the areas of employment, housing, transportation, and public accommodation; and private entities that receive federal financial assistance. The federal government is actively engaged in the enforcement of anti-discrimination statutes against public and private entities in the areas of employment, housing and housing finance, access to public accommodations, and education. In addition, most states and some localities also have laws prohibiting similar types of activity, and in many cases state and federal authorities have entered into work sharing arrangements to ensure effective handling of cases where state and federal jurisdiction overlap. Examples of federal employment, housing, and education cases, as well as state enforcement in these areas, are set forth in this section. Numerous other examples in areas such as public accommodations, police conduct, prisoner rights, voting rights, hate crimes, and others are described in other sections of the report.

Examples of Enforcement Actions: Employment

60. The Equal Employment Opportunity Commission (EEOC) is charged with enforcing federal civil rights laws with regard to discrimination in public and private sector workplaces. The Department of Justice also brings employment cases, and the Department of Labor’s Office of Federal Contract Compliance Programs ensures that federal contractors and subcontractors do not discriminate in employment. Since 2000, the EEOC has received and handled approximately 80,000 charges a year, with well over that number in 2003. This is approximately the same annual rate as in the 1990s, with the exception of 1995, when the number was unusually elevated. In 2006, however, the agency received only 75,768 charges. These charges included 113,765 instances of discrimination in private and public sector workplaces. In 2006, 62 percent of all charges alleged race or gender discrimination, or retaliation in violation of Title VII of the Civil Rights Act of 1964. The Commission filed 371 lawsuits, recovered $44.3 million through litigation, plus $229.9 million in settlement, conciliation, and other closures, bringing the total to $274.2 million. The amounts obtained through settlement in fiscal year 2006 included $61.4 million in settlement, conciliation, and other closures of 5,232 race discrimination charges; $21.2 million in settlement, conciliation, and other closures of 1,666 national origin discrimination charges; and $5.7 million in settlement, conciliation, and other closures of 499 religion discrimination charges. Settlements and court decisions also included non-monetary elements to assist in ensuring that offending behavior does not recur.

61. Examples of cases brought since 2000 by the EEOC, the Department of Justice Civil Rights Division, and the Department of Labor Office of Federal Contract Compliance Programs follow. Others are described in other sections of the report. Enforcement cases that go to court often take a number of years from beginning to end. Thus, cases brought since 2000 that have not been settled may still have been proceeding through the courts at the time this report was written.

In June 2006, the Commission settled a case involving allegations that a homebuilder had disciplined an African American supervisor and discharged him from his position because of his race. Of the employer’s 70 employees, this supervisor was the only African American. During his employment, the supervisor complained about racial hostility on the part of some of the subcontractors (e.g., using racial epithets, refusing to communicate directly with him, completing tasks for him more slowly than for White construction superintendents), but the defendant downplayed the concerns and told him to deal with the problems himself. The supervisor was eventually disciplined and discharged for incidents for which similarly-situated Whites were not disciplined. The parties resolved the case through a two-year consent decree under which the employee will receive $46,000 in compensatory damages. The decree enjoins defendant from racial discrimination, racial harassment, and other discrimination prohibited under Title VII. The decree also prohibits defendant from engaging in reprisal or retaliation. EEOC v. Bob Ward New Homes, No. JFM-05CV2728 (D. Md. June 27, 2006).

In June 2005, the Commission, Ford Motor Co., and the United Auto Workers (UAW) union resolved, through a consent order, thirteen charges concerning a written test for skilled trades apprentice positions that had a disparate impact on African American applicants. The order provides that Ford and the UAW will use a validated apprenticeship selection test. The settlement also provides that the company will select 280 class members for apprentice positions, consisting of current and former employees of African descent who took the prior test over an eight-year period but were not placed on an apprenticeship eligibility list. The thirteen charging parties each received $30,000, and the approximately 3,400 additional class members received $2,400 each, for a total recovery of approximately $8.55 million. EEOC v. Ford Motor Co. and United Automobile Workers of America, No. 1:04-CV-00854 (S.D. Ohio 2005).

In another 2005 case, the Commission found evidence that an employment agency coded and referred applicants based on their race and sex, and that some of the agency’s client-employers made requests for individuals of a particular race or gender. Under a consent decree, the employment agency paid $285,000 into a Claim Fund to be distributed among qualified claimants identified by the Commission, and three agency clients paid $50,000 in administrative costs. The agreement also included specific requirements to prevent the recurrence of race- and sex-based exclusion of applicants and to open up employment opportunities for African American and female applicants, including appointment of an outside contractor to provide annual training regarding lawful interviewing, screening, and hiring procedures. EEOC v. EGW Temps., Inc, No. 00 CIV 833S (W.D.N.Y. 2005).

An employer with an all-White workforce relied heavily on word-of-mouth recruiting to fill vacancies. The Commission alleged that the company denied employment to African American applicants because of their race. The case arose out of a Commissioner’s Charge and included discriminatory practices going as far back as 1991. Despite receiving applications from many African American workers, the company relied on referrals from its current employees, many of whom were Eastern European immigrants who were not likely to refer African Americans. The case was resolved by a consent decree providing $2.5 million in damages for approximately 325 claimants. The company was enjoined from using race or sex in hiring and job assignments, and is required to fill production positions during the three-year term of the decree by alternating hires between interested claimants and other applicants. EEOC v. Carl Buddig & Co. (N.D. Ill. 2004).

62. In addition to filing individual claims, the Justice Department Civil Rights Division is also charged with authority to investigate and challenge patterns or practices of employment discrimination. Such suits are complex, time consuming, and resource-intensive. As a result, the Division has historically managed only one case per year. In 2004, however, the Department prevailed in one major pattern or practice trial and filed four additional lawsuits. It filed two in 2005, and had filed three in 2006 as of October.

One such case involved a suit against the State of Delaware, the State Department of Public Safety, and the Division of State Police for violation of Title VII of the Civil Rights Act in hiring police. The case alleged that use of a multiple-choice reading comprehension and writing test called “Alert” to screen applicants for employment in the Police Department had created a disparate, negative impact on African American applicants. The Court found no intention to discriminate in using the test; nor did it consider the test itself to be offensive. Nonetheless, it found that the cut-off score set by the state was too high and had discriminated against African American applicants. Thus, the Court held the State of Delaware’s administration of the test to be unlawful under Title VII. U.S. v. State of Delaware, 2004 WL 609331 (D. Del. 2004).

A second case alleged that the New York Transit Authority had engaged in a “pattern or practice” of discrimination against Muslim, Sikh, and similarly situated employees who wear religious head coverings by not reasonably accommodating their religious observances, practices, and beliefs through selective enforcement of its uniform policies. United States v. New York Transit Authority, No. ____ (E.D.N.Y.). This case is still being litigated before the United States District Court for the Eastern District of New York.

The Department of Justice sued the University of Guam, alleging that it had discriminated against eleven individuals formerly employed in administrative and faculty positions on the basis of their national origin or race and/or in retaliation for complaints made by them. By virtue of a settlement agreement, the individuals – Filipino American, African American, American Indian, and Caucasian – received monetary payments totaling $775,000. The agreement also required the University to issue a new written policy prohibiting employment discrimination and to provide anti-discrimination training to all management level and supervisory employees. United States v. University of Guam, No. _____ (D. Guam, 2004).

The Department of Justice sued the City of Virginia Beach for its use of a written test that disproportionately excluded African Americans and Hispanics in violation of Title VII. United States v. City of Virginia Beach, Virginia, No. _____ (E.D.Va.). The case, which was resolved through the entry of a consent decree, focused on the city’s use of a mathematics examination as a selection device for choosing new police officer hires. The Justice Department alleged that in addition to disproportionately excluding African Americans and Hispanics, the test was not valid in that it did not test for skills needed to be an entry-level Virginia Beach Police Officer. Title VII prohibits tests that have a disparate impact on the basis of race or national origin and that cannot be shown to be related to the job in question.

In March 2004, the Community Relations Service of the U.S. Department of Justice became involved in a 1980s education desegregation case in Roanoke, Alabama that involved, among other factors, the hiring of minority teachers and administrators. CRS was asked to mediate an agreement between the Roanoke school system and the African American community to reduce racial conflicts and tension plaguing the school district. The tensions derived from multiple issues, including allegations that the school system: (1) lacked minority teachers and administrators; (2) had a racially disparate disciplinary policy for minority students; and (3) failed to provide appropriate curriculum containing such subjects as African American history. CRS held mediation sessions with school district officials and African American community leaders for several months to discuss the issues in the case and prepare for formal mediation. As a result of CRS’s services: (1) a workable relationship and open lines of communication were established; (2) the parties collaborated and implemented the goals of the agreements; and (3) a capacity-building mechanism was put in place for resolving future tensions. More specifically, the school district has worked with minority community leaders to recruit and retain minority teachers and administrators. The school district also agreed to review disciplinary policies in the school system and reviewed the school curriculum to ensure that appropriate subjects such as African American history are taught in the classrooms. CRS has continued to assist the parties.

63. The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) ensures that employers doing business with the federal government comply with the laws and regulations requiring non-discrimination in employment. The program enforces its mandate by detecting and remedying systemic discrimination and by providing compliance assistance to employers. In fiscal year 2005 (October 1, 2004 to September 30, 2005), OFCCP recovered a record $45,156,462 for 14,761 American workers who had been subjected to unlawful discrimination. Of that recovery, 97 percent was collected in cases of systemic discrimination, defined as those involving a significant number of workers or applicants subjected to discrimination because of an unlawful employment practice or policy. The fiscal year 2005 results represent a 42 percent increase over the recoveries in fiscal year 2000 and a 56 percent increase over fiscal year 2001. Examples of these cases follow:

In 2003, DOL filed an Administrative Complaint alleging that INA Bearing, a ball bearing manufacturer, engaged in hiring discrimination based on race, and assignment discrimination based on gender, with respect to machine operators. OFCCP found that 613 minority individuals had not been hired due to discriminatory practices. In addition 62 female employees were hired but were improperly channeled into low-paying jobs. In 2005 the company agreed to a $1.1 million settlement. The settlement included $900,000 in back pay, interest, and benefits (including $30,000 in lieu of retroactive seniority); it also included $200,000 in training for new hires and promoted females that was required to be spent over a two year period. INA also agreed to hire 30 minority applicants from the affected class over a 24-month period and to offer promotions to 27 females from the affected class over a 12-month period.

In fiscal year 2005, an OFCCP compliance review of American Trans Air, Inc. found that the company discriminated against African Americans and Hispanics in hiring. OFCCP’s compliance evaluation was closed after the company agreed to a conciliation agreement that provided for significant back pay as well as job offers to 84 victims of discrimination. The total value of the conciliation agreement, including annualized salaries of those offered employment, was $2,867,840.

Also in fiscal year 2005, OFCCP signed a conciliation agreement with Benchcraft-Blue Mountain Upholstery after a compliance evaluation found that the company’s selection practices were racially discriminatory. The company agreed to provide back pay, to offer positions to 178 of the affected class members, and to train managers and others involved with the hiring process. The total value of the conciliation agreement, including annualized salaries for those offered employment, was $6,283,345.

Examples of Enforcement Actions: Fair Housing and Lending

64. Ensuring equal opportunity in housing is one of the strategic goals of the U.S. Department of Housing and Urban Development (HUD). HUD’s Office of Fair Housing and Equal Opportunity (FHEO) carries out this strategic goal by administering laws that prohibit discrimination on the bases of race, color, religion, sex, national origin, disability, and familial status. In addition, FHEO educates lenders, housing providers, developers, architects, home-seekers, landlords, and tenants about their rights and obligations under the law. Working with national, state, and local partners – as well as the private and nonprofit sectors – FHEO is involved in a cooperative effort to increase access to the nation’s housing stock so that more Americans can obtain housing of their choice. The laws implemented by FHEO include the Fair Housing Act, which is Title VIII of the Civil Rights Act of 1968, as amended in 1988; and other civil rights laws, including Title VI of the Civil Rights Act of 1964, Section 109 of the Housing and Community Development Act of 1974, and Section 3 of the Housing and Urban Development Act of 1968.

65. Since the initial U.S. report, HUD’s Office of Policy Development and Research has published several volumes estimating the national level of racial and ethnic housing discrimination against African Americans, Hispanics, and Asian Americans and Pacific Islanders. In addition, statewide estimates were drawn up for Native Americans and Alaska Natives in three states. The methodology involved matched pairs of testers who sought housing in the sales or rental market; one tester was a non-Hispanic White, and the second was of a minority race or ethnicity. The reports showed that discrimination in the sales market had declined significantly in the decade prior to the report’s issuance. However, the decline was more modest in the rental market for African Americans, and there was no change at all for Hispanics. The findings also generally indicated that the treatment shown to the non-Hispanic White tester remained more favorable than that shown to the minority tester, further indicting that the problem of housing discrimination persists in many parts of the nation.

66. The HUD Fair Housing Office includes an enforcement arm that receives complaints and investigates cases. In many regions of the U.S., HUD, through FHEO, also funds state or local government fair housing enforcement agencies to receive complaints and to investigate them, as long as the state or local government can show that it enforces a fair housing law that provides rights, remedies, procedures, and opportunities for judicial review that are substantially equivalent to those provided in the Fair Housing Act. By the end of fiscal year 2005, there were 103 such agencies in 37 states and the District of Columbia. In fiscal year 2005, HUD and the 103 state, county, and city Fair Housing Assistance Program agencies that partner with HUD received 9,254 complaints or cases. Of those complaints, 3,472 were based on race and 860 were based on national origin discrimination against Hispanics. Examples of cases investigated and managed by HUD’s Fair Housing Office are set forth below:

1. An African American couple, Mr. and Mrs. Benton, made a full-price offer on a home in Scott, Arkansas. The seller’s agent, however, advised the buyer’s agent that the offer was not acceptable, and inquired if the buyers were African American. Instead, the seller, Mr. Arnett, accepted a lower offer, contingent on financing, from the neighbors, who were White. The neighbors did not apply for financing and, several months later, the house was sold to White buyers for nearly $10,000 less than the original offer. On October 26, 2004, HUD issued a charge of discrimination against the sellers, who agreed to settle the case. Under the terms of the settlement, Mr. Arnett will pay the Bentons $15,000 and will attend fair housing training. Benton, et al. v. Arnett et al.
   
2. Ms. Puerto and her husband, a Hispanic couple, sought to purchase a home in Pflugerville, Texas. A couple of days before closing, the owner of Capital Funding Group – the couple’s brokers and loan processors – informed them that the interest rate was being raised from 9 to 10 percent and that the down payment was being raised from $5,000 to $12,000. Ms. Puerto terminated the transaction and demanded a refund of her $1,030 deposit. Instead, the broker demanded an additional $300. During the investigation, a former employee of Capital Funding Group admitted that the owners of Capital Funding Group had targeted Hispanics and mistreated them because they felt Hispanics would often sign documents that they did not (or were unable to) read. On July 12, 2005, HUD charged Capital Funding Group with discrimination on the basis of national origin in violation of the Fair Housing Act in this case and three others. On August 8, 2005, an election was made to have the case tried in federal court, where it remains in litigation. Puerto v. Capital Funding Group, et. al.

1. Ms. Jones, a young White female with a bi-racial daughter rented a house in Saraland, Alabama, but was made to feel so uncomfortable by her landlord (once the landlord had seen the daughter) that she and her daughter moved out. She contacted the Mobile Fair Housing Center, which sent two tester families to the housing development – one a family with an African American husband, White wife and bi-racial child, and the other a White family. After the first family was told no houses were available, and the second family was offered three possible homes, HUD then charged the landlord with discrimination on the basis of race in violation of the Fair Housing Act. On April 21, 2005, the parties elected to have the case heard in federal court where it remains in litigation, Jones v. Stevens.

67. The Civil Rights Division of the Justice Department is also charged with ensuring non-discriminatory access to housing, public accommodations, and credit. During fiscal year 2006 (October 2005 through September 2006), the Housing Section filed 31 lawsuits, including 19 pattern or practice cases. One of the programs used aggressively by the Civil Rights Division is its Fair Housing Testing Program, in which persons with different characteristics pose as potential tenants seeking to rent apartments in the same facility at approximately the same time. On February 15, 2006, the Attorney General announced a major new civil rights initiative: Operation Home Sweet Home. He made a public commitment that over the next two years the Division would conduct a record-high number of fair housing tests in order to expose housing providers who are discriminating against people trying to rent or buy homes. During fiscal year 2006, the Civil Rights Division increased the number of fair housing tests conducted by 38 percent compared to fiscal year 2005. Examples of recent cases are described here, including a case involving evidence developed by the Fair Housing Testing Program.

1. On January 18, 2005, the Division filed the lawsuit United States v. Dawson Development Co., L.L.C., No. 4:05-cv-0095-CLS (N.D. Ala.), alleging that the defendants – the owner and manager of Park Place Apartments in Boaz, Alabama – discriminated against African Americans in the rental of apartments at Park Place. In testing conducted by the Fair Housing Testing Program, the manager told the African American testers that there were no apartments available, but told the White testers who visited the apartments the same day that apartments were available. The manager also failed to call the African American testers when apartments became available, but left messages with the White testers encouraging them to rent apartments at Park Place. The Division entered into a Consent Order with the owner of the complex, enjoining it from further race discrimination, requiring it to adopt uniform non-discriminatory rental and application procedures, and requiring it to pay $32,700-$49,700 for victims of the defendants’ discrimination in addition to a $17,000 civil penalty. The Division then won its trial against the property manager, after which the court imposed a $10,000 civil penalty against that defendant.
   
2. On August 29, 2006, the Court approved and entered a Consent Decree in United States v. Kreisler, Jr., a/k/a/ Bob Peterson, No. 03-cv-3599 (D. Minn.). The Division’s pattern or practice complaint, filed in 2003, alleged that Kreisler violated the Fair Housing Act when he discriminated against African American tenants at two apartment complexes he owned and managed by: evicting African Americans while not evicting similarly situated non-African Americans, requiring African American tenants to vacate their apartments permanently due to “renovation work” while not requiring non-African American tenants to do so, and failing to provide necessary and requested maintenance to African American tenants while providing such maintenance to non-African American tenants. Under the terms of the Consent Decree, the defendants must pay $525,000 to 19 households, hire an independent management company to operate the rental properties, post and publish a nondiscrimination policy, and correct the rental records of several former tenants against whom defendants filed unlawful detainer actions. The defendants will also pay a $50,000 civil penalty.
   
3. On August 7, 2006, the Division filed a complaint in United States v. Sterling, No. CV 06-4885-PJW (C.D. Cal.), a pattern or practice case alleging discrimination on the basis of race, national origin, and familial status. The complaint alleges that the defendants refused to rent to non-Korean prospective tenants, misrepresented the availability of apartment units to non-Korean prospective tenants, and provided inferior treatment to non-Korean tenants in the Koreatown section of Los Angeles.
   

68. Lawsuits brought by the Civil Rights Division have not only defended the rights of Americans to obtain housing, but also to obtain the financing necessary to purchase homes. While a lender may legitimately take into account a broad range of factors in considering whether to make a loan, race has no place in determining creditworthiness. “Redlining” is the term employed to describe a lender’s refusal to lend in certain areas based on the race of the area’s residents. In 2006, the Division filed and resolved a major redlining case under the Fair Housing Act and the Equal Credit Opportunity Act (ECOA).

1. On October 13, 2006, the Justice Department filed a complaint alleging that Centier Bank discriminated on the basis of race and national origin by refusing to provide its lending services to residents of minority neighborhoods in the Gary, Indiana, metropolitan area, in violation of the Fair Housing Act and the Equal Credit Opportunity Act. The Division successfully resolved the suit with a consent decree, under which Centier will open new offices and expand existing operations in the previously excluded areas, invest $3.5 million in a special financing program, and spend at least $875,000 for consumer financial education, outreach to potential customers, and promotion of its products and services in these previously excluded areas. United States v. Centier Bank, No. 2:06-CV-344 (N.D. Ind.).

Examples of Enforcement Action: Education

69. The mainstay of the Justice Department Civil Rights Division’s work in the area of education is a substantial docket of open desegregation cases under which school districts remain under court orders. Some of the cases are decades old. Although most of these cases have been inactive for years, each represents an as-of-yet unfilled mandate to root out the vestiges of segregation and return control of constitutionally compliant public school systems to local officials.

70. To promote compliance by school districts, the Division initiates case reviews to monitor issues such as student assignment, faculty assignment and hiring, transportation policies, extracurricular activities, the availability of equitable facilities, and the distribution of resources. In 2004, the Civil Rights Division initiated 44 case reviews – the largest number in any given year. In addition, during that year the Division obtained additional relief through a combination of litigation, consent decrees, and out of court settlements in 23 cases. In 2006, the Division initiated 38 case reviews. Since 2000 the Division has initiated more than 228 reviews, which have resulted in the return of local control in more than 126 school districts.

1. United States v. Chicago Board of Education is a longstanding case, initiated in 1980, involving the failure of the third largest school district in the United States to comply with an earlier court order covering student and faculty assignments and the funding of certain educational programs. In 2004, the court entered a consent decree requiring that many minority students be given the choice to transfer to racially integrated schools. The consent decree also addressed the district’s failure to fund adequately certain minority schools and to provide appropriate services to English Language Learners. In 2006, a Second Amended Consent Decree was entered to ensure further opportunities for English Language Learners.
   
2. In a case brought in the 1960s, the Bertie County Board of Education in North Carolina was ordered to develop a school desegregation plan to eliminate a racially-segregated dual system of schools in the county. In 2002, the Department of Justice sought further relief, alleging that Askewville Elementary School in Bertie County was operating as a racially-identifiable White school, based on its school population, faculty, and staff composition. In 2004, the Court granted the Justice Department’s motion for further relief. In 2005, the Justice Department reached an agreement with the school district that resulted in the closing of Askewville Elementary, as well as J.P. Law Elementary, a predominantly Black school with dilapidated facilities. U.S. v. Bertie County Board of Education.
   
3. In a case in McComb County, Mississippi, the Civil Rights Division has challenged in federal court the school district’s classroom assignment practices that segregate students by assigning or clustering a disproportionate number of White students to classrooms in this predominantly minority district as well as its practice of granting certain student awards on the basis of race. The case was heard in 2006 and the Division is awaiting a decision from the court. U.S. v. McComb County Board of Education.
   
4. In another case, the Covington County Board of Education in Alabama, with support from the United States Government, filed a motion to terminate an ongoing case from 1963. Holding that Covington County was now in compliance with anti-discrimination laws, the court dismissed the case. Lee v. Covington County Board of Education, 2006 WL 269942 (M.D. Ala. 2006). This case was part of a project started by the court in the Middle District of Alabama to move the cases toward closure and a return to local control.
   

Enforcement of Anti-Discrimination Laws in the Territories

71. Claims of racial and ethnic discrimination are also actively pursued in U.S. territories. Since 2000, the Virgin Islands has experienced a larger volume of cases than the U.S. territories in the Pacific. Two cases in the courts in the Virgin Islands are: (1) Petersen v. Budget Marine V I, Inc., 2004 WL 3237537 (D. V.I. 2004) in which the plaintiff contends he was let go from his employment and replaced by a White male from the continental United States; and (2) Frorup-Alie v. V. I. Housing Finance Authority, 2004 WL 1092317 (D. V.I. 2004), involving a claim of discrimination based on race (African American) and national origin (native Virgin Islander). The plaintiff claims that the Housing Finance Authority created a hostile working environment in which other employees yelled at her and talked about her in Spanish in her presence. A case involving employment discrimination by the University of Guam is described above. Additionally, the Civil Rights Division of the Department of Justice has prosecuted human trafficking cases and brought suits to protect prisoners’ rights in the territories.

Enforcement of Anti-Discrimination Laws by the States

72. Most states have state civil rights or human rights commissions or offices that administer and enforce state laws prohibiting discrimination in areas such as employment, education, housing, and access to public accommodations. These offices generally investigate complaints and ensure, where appropriate, that charges are filed and cases are heard. They generally also have advisory and educational functions, informing residents of the state about enforcement of their civil rights. The few states that do not have designated civil rights or human rights offices or commissions administer their civil rights laws through their Attorney General’s Offices. Some counties and cities also have commissions to administer their civil rights laws. For example, a complainant in Chicago may have four choices in bringing an employment claim – the federal Equal Employment Opportunity Commission, the Illinois Department of Human Rights, the Cook County Human Rights Commission, or the Chicago City Human Rights Commission. California also has a full system of civil rights agencies. In addition to three state entities – the California Department of Fair Employment and Housing, the California Department of Justice Civil Rights Enforcement Section, and the California Fair Employment and Housing Commission (a quasi-judicial administrative agency that hears cases and is also involved in regulatory, legislative, and outreach activities), complainants can also contact 13 county civil rights commissions and more than 50 city civil rights bodies. For a full discussion of the human rights/civil rights programs in four states (Illinois, New Mexico, Oregon, and South Carolina) with populations of varying racial and ethnic composition, see Annex I to this report.

73. Most state entities have work sharing agreements with the EEOC and the Department of Housing and Urban Development (HUD) to ensure that complainants’ rights are protected under both state and federal law, regardless of where they choose to bring their complaints. Under these agreements, the state civil rights entity and the federal entity (EEOC or HUD) each designate the other as its agent for purpose of receiving and drafting charges. Thus, the state may act as the agent of the EEOC or HUD, receiving, filing, and investigating charges that may fall within federal statutes. Charges can also be transferred from one agency to the other in accordance with the terms of the agreement. For employment cases, state agencies generally adhere to the procedures in the EEOC’s state and local handbook. In the employment area, many state laws apply to a wider range of businesses than are covered by the federal law, which applies only to employers with 15 or more employees.

74. Although the processes for handling discrimination complaints differ from state to state, a typical state civil rights process involves several steps. The first is intake of inquiries and complaints. Second is investigation of complaints. Prior to or during this phase, many states offer mediation of disputes at no cost or minimal cost to complainants in order to attempt to resolve issues prior to a formal hearing process. If mediation is not successful, some states also offer conciliation. Third, if the complaint is not settled by mediation or conciliation, and if investigation indicates a possible violation of the law, the case may go to a formal hearing before a hearing officer, an administrative law judge, or a commissioner. The hearing officer, administrative law judge, or commissioner in turn renders a determination or decision – a decision that in some cases must be approved by the entire commission. Decisions may normally be appealed to an appellate authority – usually a state appellate court. In many cases, they may also be enforced in state court through writ of mandamus (ordering the defendant to take action) or injunction (prohibiting the defendant from taking certain actions).

75. Most states also provide for removal of cases directly to state court or to federal courts or agencies during the investigation process. As noted above, under work sharing agreements, cases that fall within federal jurisdiction are sometimes transferred to the EEOC or HUD for further action. In addition, most states offer complainants the option of taking cases to state or federal court if the cases meet jurisdictional guidelines – in some cases by filing directly with the court, and in other cases by requesting a right to sue letter from the state civil rights entity that is processing the claim.

76. A large number of complaints are received and investigated by state authorities. For example:

1. During 2005, the Illinois Department of Human Rights and Illinois Human Rights Commission received 15,748 inquiries, which led to the filing of 4,055 charges. During that time, the staff also settled 1,238 cases, and 503 complaints were withdrawn. During that year, of the cases docketed, 90 percent were employment cases, 7 percent were housing cases, and 3 percent were public accommodation cases. Race, national origin/ancestry, and color were the bases of discrimination in 32 percent of the employment cases, 47 percent of the housing cases, and 62 percent of the public accommodation cases.
   
2. During 2005, the Civil Rights Division of the Arizona State Attorney General’s Office investigated 10,512 new and pending charges and resolved 1,052 cases. Almost 11 percent were resolved through voluntary settlement agreements between parties, generating more than $200,000 for victims of discrimination. The litigation section resolved 16 lawsuits, the conflict resolution program staff and mediators mediated 234 cases (reaching agreement in 73 percent of them), and the compliance section resolved more than 400 employment discrimination cases. In 2004, the staff also made outreach presentations to more than 3,300 farm workers and trained more than 3,500 persons in law enforcement groups, universities, community groups, businesses, and other organizations. An example of a case from Arizona is Heredia et al. v. Hacienda San Luis – a group of six cases that involved allegations of housing discrimination and redlining. The defendant was alleged to have taken advantage of the vulnerable status of non-English speaking farm workers. These cases were settled in favor of the complainants.
3. In fiscal year 2003-04, the Tennessee Human Rights Commission pursued 840 employment cases, of which 234 (28 percent) were based on race, and 140 housing discrimination cases, of which 47 percent (66) were based on race. In fiscal year 2004-05, the Commission pursued 915 employment cases of which 237 (26 percent) were based on race, and 67 housing cases of which 30 (45 percent) were based on race. The Commission also reached approximately 1.5 million Tennessee residents with outreach activities concerning pursuit of civil rights.
   
4. The New Mexico Human Rights Act of 1969 established two human rights bodies in the state – the Human Rights Division in the New Mexico Department of Labor, which investigates complaints and provides training and public education, and the New Mexico Human Rights Commission, which hears discrimination cases. The Human Rights Division investigates an average of 600-800 cases per year; in fiscal year 2006, the number was 635. In the same year, the Division mediated 194 cases, of which 149 were successfully settled. Of the 1,304 complaints filed in fiscal year 2006, 170 (13 percent) were based on national origin, 109 (8 percent) on race, and 283 (22 percent) on retaliation. Of the 635 cases investigated and resolved, 135 (21 percent) were resolved through settlement, 404 (63.6 percent) led to findings of no probable cause, and 82 (13 percent) were resolved through the administrative hearing process. For cases resolved in favor of claimants, monetary awards totaled $1,051,237.
   
5. The South Carolina Human Affairs Commission (SCHAC), established by the 1972 South Carolina Human Affairs Law, investigates and hears complaints of discrimination in the areas of employment, housing, and public accommodation. In fiscal years 2005-06, there were 1,238 employment complaints filed and 1,218 final actions in such cases. Mediation was used for 162 cases, with a resolution rate of 70 percent. Fair housing complainants filed 88 complaints, and 86 cases were resolved that year; public accommodations complaint activity involved the filing of 66 complaints, with final resolution of 74 cases.
   
6. During 2006, 1,488 complaints were filed with the Nevada Equal Rights Commission (NERC), resulting in 1,035 charges of discrimination. Under Nevada law, NERC’s authority extends to discrimination in employment, public accommodations, and housing. In addition to the authority to hold hearings, NERC has the authority to hold informal settlement conferences and conciliations to resolve complaints prior to litigation. In 2006, the NERC held twenty-five conciliations, of which ten were successfully settled and fifteen were unsuccessful. The unsuccessful employment cases were referred to the federal EEOC for possible further action under the work sharing agreement between Nevada and the EEOC. The NERC also offers educational outreach programs, primarily in the area of employment law.
   
7. The Civil Rights Division of the Oregon Bureau of Labor and Industry administers Oregon’s civil rights laws. The Civil Rights Division receives approximately 30,000 inquiries per year, of which approximately 2,000 to 2,500 result in the filing of formal discrimination complaints each year. Approximately 98 percent of the complaints relate to employment, one percent to housing, and one percent to discrimination with regard to public accommodations. In turn, approximately 22 percent of the complaints are based on race, color, or national origin discrimination. The Division also has an active education and outreach program, providing information to employers and the public. On the average, 5,000 to 6,000 managers, supervisors, and employers are trained each year.
   
8. Under Kentucky law, the Kentucky Commission on Human Rights, composed of eleven members appointed by the Governor, administers and enforces the civil rights laws of the Commonwealth of Kentucky. According to the reports of the Commission, in fiscal year 2004-05 there were 343 civil rights complaints filed, of which 160 (47 percent) were based on race, and in fiscal year 2005-06 there were 383 complaints filed, of which 164 (43 percent) were based on race. One recent case example is as follows: In December 2004, the Kentucky Commission on Human Rights filed suit in state court, seeking civil damages against the perpetrators of a cross-burning in Boone County in Northern Kentucky in 2004. The perpetrators pled guilty to three federal counts of violation of civil rights, intimidation, and aiding and abetting. In addition, the civil suit alleged that the cross-burning violated the U.S. Fair Housing Act and Kentucky Civil Rights Act and sought actual and punitive damages for the victims. The Office of the Attorney General joined as an intervening plaintiff. The case was scheduled for trial in March 2007. The family left the neighborhood after the incident and intervened in the civil action in lieu of an administrative hearing before the Commission.
   
9. Vermont has several laws aimed at protecting citizens against harassment, discrimination, and criminal acts based on race, ethnicity, color, and national origin. In 2004-05, 143 employment charges were filed and 171 cases were resolved, with benefits of $647,459 for complainants. That same year, 50 housing charges were filed and 30 were resolved, with benefits of $28,428 for complainants. Thirty-two public accommodation charges were filed in 2004-05, and 28 were resolved, providing benefits of $5,250.
   
10. During fiscal year 2004-05, the Hawaii Civil Rights Commission received over 6,500 inquiries. Of those, 784 intakes were completed and 612 complaints were actually filed. Three hundred and sixty-two of these cases originated with Hawaiian state investigators, and another 250 originated with the EEOC. The 612 cases included 530 employment cases, 30 public accommodations cases, 50 housing cases, and 2 cases involving the state and state-funded services. Race, national origin/ancestry, and color were the basis of approximately 21 percent of the employment cases and 33 percent of the public accommodations cases.
    
11. During fiscal year 2005, the Maryland Human Relations commission received 943 complaints and completed 915 cases, obtaining over $850,000 for victims of discrimination. The mediation unit held 177 mediations and reached agreement or closed 62 percent of those. The staff also provided training and outreach to more than 7,000 Maryland residents and 137 organizations. Examples of cases in Maryland are: MCHR v. Triangle Oil Company (employment discrimination based on race by reducing hours and wages and terminating the complainant from his job); Newkirk v. Chase Real Estate Company et al. (racial discrimination in rental of a house); and MCHR v. Elton Smith, Jr. (harassment of an interracial couple by an African American neighbor).

Enforcement Against Private Entities: Constitutional Limitations and Reservation

77. As noted in the Initial U.S. Report, the definition of “racial discrimination” under article 1 (1) of the Convention, the obligation imposed in article 2 (1) (d) to bring to an end all racial discrimination “by any persons, group or organization,” and the specific requirements of paragraphs 2 (1) (c) and (d) and articles 3 and 5 may be read as imposing a requirement on States parties to take action to prohibit and punish purely private conduct of a nature generally held to lie beyond the proper scope of governmental regulation under current U.S. law. For this reason, the United States indicated through formal reservation that U.S. undertakings are limited by the reach of constitutional and statutory protections under U.S. law as they may exist at any given time:

“[T]he Constitution and laws of the United States establish extensive protections against discrimination, reaching significant areas of non-governmental activity. Individual privacy and freedom from governmental interference in private conduct, however, are also recognized as among the fundamental values which shape our free and democratic society. The United States understands that the identification of the rights protected under the Convention by reference in article 1 to fields of “public life” reflects a similar distinction between spheres of public conduct that are customarily the subject of governmental regulation, and spheres of private conduct that are not. To the extent, however, that the Convention calls for a broader regulation of private conduct, the United States does not accept any obligation under this Convention to enact legislation or take other measures under paragraph (1) of article 2, subparagraphs (1) (c) and (d) of article 2, article 3 and article 5 with respect to private conduct except as mandated by the Constitution and laws of the United States.”

That reservation remains in effect, and the specific delineation of current constitutional and statutory protections, as set forth in the Initial U.S. Report, has not changed.

78. Nonetheless, as seen in the enforcement actions described in this report, U.S. law does extend to private conduct in many instances. Basic United States civil rights laws (42 U.S.C. 1981, 1982) have been used to prohibit private actors from engaging in racial discrimination in activities such as the sale or rental of private property, admission to private schools, and access to public facilities. In addition, enforcement against private parties who engage in discrimination in public accommodations and employment may also be pursued under Titles II and VII of the 1964 Civil Rights Act, which are based on the commerce power of Congress. Executive Order 11246 provides a basis for public enforcement actions against federal contractors and subcontractors who engage in employment discrimination. The Fair Housing Act forms the basis for enforcement against private parties in the area of discrimination in housing. Finally, the spending powers of Congress form the basis for Title VI of the 1964 Civil Rights Act, which prohibits discrimination by both public and private institutions that receive federal funds.

79. States also enforce against private entities. For example, under Kentucky law, in addition to enforcing the Kentucky Civil Rights Act, the Kentucky Commission on Human Rights has a statutory role in addressing unlawful discrimination in proprietary schools and private clubs (KRS 165A.360(1) – proprietary schools), (KRS 141.010(11)(d) and (13)(f) – private clubs). In the context of proprietary schools, the Commission has authority to block the licensure of schools that discriminate or tolerate discrimination on the basis of race, color, or creed. In the context of private clubs, the Commission has authority to block the availability of tax deductions for payments to clubs that discriminate or tolerate discrimination based on race, color, religion, national origin, or sex. On November 18, 2004, the Kentucky Supreme Court ruled that the Commission has the power to investigate private social clubs for discriminatory membership practices. Represented by staff counsel and the Office of the Attorney General, the Commission asserted investigative authority over the Pendennis Club of Louisville, the Louisville Country Club, and the Idle Hour Country Club of Lexington. The private clubs had refused to provide their membership records for a determination regarding their racial and gender makeup. The Kentucky Supreme Court’s decision in Commonwealth v. Pendennis Club, Inc., 153 S.W. 3d 784 (Ky. 2004) reversed lower court rulings.

80. A number of cases brought against private entities are set forth in the sections on employment and housing, above. Others are described in other sections of the report.

3. Measures taken to review governmental, national and local policies and to amend, rescind or nullify any laws and regulations that have the effect of creating or perpetuating racial discrimination wherever it exists

81. Article 2 (1) (c) requires States parties to “take effective measures to review governmental, national and local policies . . . which have the effect of creating or perpetuating racial discrimination” and to “amend, rescind or nullify any laws and regulations” that have such effects.

82. The United States continues to satisfy these obligations through its ongoing legislative and administrative processes at all levels of government, as well as through court challenges brought by governmental and private litigants. Laws and regulations in the United States are under continuous legislative and administrative revision and judicial review.

Executive Review

83. White House. President Bush has renewed several initiatives that involve review of existing laws and policies with the goal of promoting racial and ethnic equality in the areas, inter alia, of education, and economic competitiveness and prosperity. These include the President’s Advisory Commission on Educational Excellence for Hispanic Americans (E.O. 13230, October 12, 2001); the President’s Board of Advisors on Historically Black Colleges and Universities (E.O. 13256, February, 12, 2002); the Executive Order on Tribal Colleges and Universities (E.O. 13270, July 3, 2002); and the White House Initiative on Asian Americans and Pacific Islanders (E.O. 13339, May 15, 2004). President Bush also continued the Interagency Group on Insular Areas (E.O. 13299, May, 12, 2003). These Executive Orders involve review of existing laws and policies and consideration of recommendations for further action. In most cases, the President has appointed advisory committees for this purpose. The Advisory Committee on Educational Excellence for Hispanic Americans has completed its work and made recommendations, which are discussed in the next section.

84. A number of Executive Branch departments have also undergone legal and policy reviews since 2000.

85. Department of Justice. Shortly after 9/11, the Department of Justice Civil Rights Division reviewed and assessed existing laws and practices and spearheaded a special Initiative to Combat Post 9/11 Discriminatory Backlash. This initiative reflected a commitment by the U.S. government to combat violations of civil rights laws against Arab, Muslim, Sikh, and South-Asian Americans by: (1) ensuring that processes were in place for individuals to report violations and that cases were handled expeditiously; (2) implementing proactive measures to identify cases involving bias crimes and discrimination being prosecuted at the state level that might merit federal action; (3) conducting outreach to affected communities to provide information on how to file complaints; (4) working with other offices and agencies to ensure accurate referral, effective outreach, and comprehensive provision of services to victims of civil rights violations; and (5) appointing two senior Department of Justice attorneys to focus on post 9/11 backlash issues – a Special Counsel for Post 9/11 National Origin Discrimination and a Special Counsel for Religious Discrimination. More in-depth descriptions of the programs carried out under this initiative appear under the discussion of article 5, Right to Security of Person and Protection by the State against Violence or Bodily Harm, below.

86. On June 17, 2003, the Department of Justice issued policy guidance to ban federal law enforcement officials from engaging in racial profiling. This guidance has also been adopted by DHS. It is described in more detail in the section on racial profiling under subsection 4 (below).

87. Equal Employment Opportunity Commission. In 2005, the EEOC set up a task force to recommend improvements to its investigation and litigation of systemic discrimination cases. Systemic cases are defined as pattern or practice, policy and/or class action cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic location. In April 2006, the EEOC accepted the recommendations of this task force and announced its decision to make the fight against systemic discrimination an agency-wide top priority. The new plan places responsibility for addressing systemic discrimination in EEOC district field offices and requires each district to develop a plan to ensure that systemic discrimination is being identified and investigated in a coordinated, strategic, and effective agency-wide manner. Such plans must specify the steps that will be taken to identify and investigate systemic discrimination and describe how the work will be accomplished. District plans should ensure a coordinated, national approach to combating systemic discrimination. For example, districts are to partner with one another, and staff with significant systemic experience should serve as team leaders, team members, or mentors on systemic charges being handled by other offices. EEOC will staff systemic lawsuits based on the needs of the case, rather than based on the office where the case arose. The EEOC plan also requires the Office of Information Technology to prepare an action plan addressing the issue of systemic discrimination in the area of technology.

88. Department of Homeland Security – U.S. Immigration and Customs Enforcement (ICE). Since November 2000, U.S. Immigration and Customs Enforcement (ICE) and its predecessor agency, the former Immigration and Naturalization Service (INS), have implemented National Detention Standards for facilities holding immigration detainees for over 72 hours. These standards were the result of extensive discussions among the former INS, the American Bar Association, and other organizations involved in pro bono representation and advocacy for immigration detainees. The National Detention Standards ensure consistent treatment and care for detainees that are in ICE custody anywhere in the country. Previously, each facility had adopted its own standards, generally in accordance with state regulations or recognized accrediting organizations such as the American Corrections Association. The standards provide that, subject to reasonable regulation: (1) detainees will have access to a law library and supplies to prepare documents for legal proceedings; (2) facilities will permit authorized persons to make legal presentations to detainees to inform them of U.S. immigration law and procedures; (3) detainees will have access to telephones and correspondence and other mail; (4) facilities will permit authorized visits to detainees, including from legal counsel, family, and friends; (5) facilities will implement standard operating procedures that address detainee grievances; (6) detainees will be provided a detainee handbook containing necessary information about the rules and regulations governing the facility; (7) facilities will apply appropriate health standards for meal services; (8) facilities will provide medical services to promote detainee health and well-being, including initial medical screening, primary medical care and emergency care; and (9) facilities will accommodate religious observances of detainees, such as providing for meals after sundown for Muslims participating in the fast during Ramadan.

89. Department of Housing and Urban Development (HUD). In January of 2005, HUD established the Office of Systemic Investigations (OSI) for the purpose of identifying, investigating, and resolving complaints alleging systemic discriminatory practices or cases pertaining to housing. The issues raised in these complaints are often novel or complex and raise legal and policy issues of national importance. These cases include mortgage lending, homeowners insurance, zoning and land use, environmental justice, and design and construction. In some instances, the cases identified for systemic processing include those that affect large numbers of persons. The OSI utilizes various methods to identify persons who may not be aware that they have been victims of discrimination, and the OSI works to prevent future discriminatory acts by addressing systemic practices. In fiscal year 2005, HUD also created a new Division of Education and Outreach (OEO) to increase public awareness of federal fair housing laws and HUD’s role in enforcing those laws; HUD also established a National Fair Housing Training Academy to train housing discrimination investigators at local, state, and federal levels.

90. Department of Labor. During the last five years, the Department of Labor Office of Federal Contract Compliance Programs (OFCCP) has refocused its efforts to better detect and remedy systemic discrimination. Systemic discrimination cases are defined as those involving ten or more employees. The shift is designed to: (1) prioritize agency resources to address the worst offenders, those who allow discrimination to be their “standard operating procedure;” (2) achieve maximum leverage of OFCCP resources to protect the greatest number of workers from discrimination; and (3) encourage employers to engage in self-audits by increasing the tangible consequences of not doing so.

Legislative and Judicial Review

91. The U.S. Congress is constantly assessing the state of U.S. legislation and amending existing legislation or enacting new legislation where deemed necessary. New U.S. laws enacted since the Initial Report are set forth in the next section. In addition, legislation and executive branch actions are constantly being assessed by the judiciary for their consistency with the U.S. Constitution and laws. Examples of court cases since 2000 are set forth throughout this report. The same ongoing executive, legislative, and judicial review occurs in the states and territories of the U.S. with regard to their civil rights laws and enforcement activities.

4. Measures taken to give effect to the undertaking to prohibit and bring to an end, by all appropriate means, including legislation as required by the circumstances, racial discrimination by any persons, group or organization

92. Article 2 (1) (d) requires each State party to “prohibit and bring to an end, by all appropriate means, including legislation as required by the circumstances, racial discrimination by any persons, group or organization.” As indicated above, government policy at all levels reflects this undertaking, and numerous mechanisms, including programmatic initiatives, litigation, and legislation, exist to achieve this goal. This section describes a number of specific executive initiatives as well as legislation enacted since 2000 to increase and strengthen U.S. laws and programs in the areas of racial, ethnic, and national origin discrimination.

93. Education. Several Administration initiatives are in place to strengthen federal protections in the area of education. First, the President’s Advisory Commission on Educational Excellence for Hispanic Americans, E.O. 13230, established within the Department of Education, is designed to improve opportunities for Hispanic Americans to participate in and benefit from federal education programs, with the specific goal of closing the academic achievement gap. A board of advisors issued a report in 2003, finding, inter alia, that despite the high hopes of Hispanic parents, only one of three Hispanic students completed high school, and only one of ten completed college. To empower Hispanic parents and children with regard to education, the initiative includes programs to make Hispanic families aware of their rights and the services to which they are entitled under the No Child Left Behind Act of 2001 (20 U.S.C. 6301 et seq.), including free translation services for parents who do not speak English. It also encompasses a national network of public-private partnerships, denominated Partners for Hispanic Family Learning, to help equip communities and families with educational tools and information resources. Partners for Hispanic Family Learning includes over 200 public and private organizations such as the Hispanic Chamber of Commerce; MANA, a National Latina Organization; the Girl Scouts of the USA; the Parent Institute for Quality Education; State Farm Insurance; and others.

94. The President’s Board of Advisors on Historically Black Colleges and Universities (HBCUs), E.O. 13256, also administered by the Department of Education, is designed to strengthen and ensure the viability of the historically Black colleges and universities. The HBCUs, which are open to students of all races and ethnicities, form an important component of the overall United States higher education system, offering strong educational programs in smaller, challenging yet nurturing settings. The Board of Advisors issues an annual federal plan for assistance to HBCUs and makes recommendations to the Secretary of Education and the President. These recommendations address how to increase the private sector role in strengthening these institutions, with particular emphasis on enhancing institutional infrastructure, facility planning and development, and use of new technologies.

95. The Executive Order on Tribal Colleges and Universities, E.O. 13270 is also administered within the Department of Education. Offering h