University of Minnesota




United States, Initial Report to the Committee on the Elimination of Racial Discrimination (September 2000).


 
 

TABLE OF CONTENTS

INTRODUCTION

PART I - GENERAL
       A.  Land and People
       B.  General Political Structure
       C.  General Legal Framework
       D.  Information and Publicity
       E.  Factors Affecting Implementation

PART II - IMPLEMENTATION OF SPECIFIC ARTICLES

A.  Prohibition of Racial Discrimination
       1.  U.S. Constitution
       2.  Federal Legislation
       3.  Federal Executive Action
       4.  State Anti-Discrimination Measures

B.  Reservations, Understandings, Declarations
       1.  Freedom of Speech, Expression, Association
       2.  Private Conduct
       3.  Dispute Settlement
       4.  Federalism
       5.  Non-Self-Executing Treaty

C.  Specific Articles
       Article 1 Racial Discrimination Defined
       Article 2 Prohibition of Discrimination
       Article 3 Condemnation of Racial Segregation
       Article 4 Eliminate Incitements or Acts
       Article 5 Assure Equality under the Law
       Article 6 Assure Effective Protection and Remedies
       Article 7 Adopt Immediate and Effective Measures

D.  Conclusion

 
 

 

                       

Introduction

The Government of the United States of America welcomes the opportunity to report to the Committee on the Elimination of Racial Discrimination on the legislative, judicial, administrative and other measures giving effect to its undertakings under the Convention on the Elimination of All Forms of Racial Discrimination, in accordance with Article 9 thereof. The form and content of this report follow the General Guidelines adopted by the Committee in July 1993 (CERD/C/70/Rev.3).

This report has been 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 departments, agencies and entities of the United States Government most closely concerned with the issues addressed by the Convention. Contributions were also solicited and received from interested members of the many non-governmental organizations and other public interest groups active in the area of civil rights, civil liberties and human rights in the United States. The report covers the situation in the United States through August 2000 and constitutes the initial report to the Committee.

The United States ratified the Convention on the Elimination of All Forms of Racial Discrimination in October 1994, and the Convention entered into force for the United States on November 20, 1994. In its instrument of ratification, which was deposited with the Secretary General of the United Nations pursuant to Article 17(2) of the Convention, the United States conditioned its ratification upon several reservations, understandings and declarations. These are set forth at Annex I and discussed at the relevant portions of this report.

Since June 17, 1997, the Federal government has been engaged in a major review of domestic race issues. On that date, the President established an "Initiative on Race" and authorized creation of a seven-member Advisory Board to examine issues of race, racism and racial reconciliation and to make recommendations on how to build a more united America for the 21st Century. Executive Order No. 13050, 62 Fed. Reg. 32987 (June 17, 1997). The Advisory Board submitted its report to the President on September 18, 1998. Based on its recommendations, the Administration is proceeding to formulate specific proposals and plans for action. A copy of the Initiative's final report and a chart-book prepared for the President's Initiative by the Council of Economic Advisers entitled "Changing America: Indicators of Social and Economic Well Being by Race and Hispanic Origin" (September 1998) are available at the White House web site: http//:www.whitehouse.gov.

Since 1992, the United States has also been a party to the International Covenant on Civil and Political Rights, some provisions of which have wider application than those of the Convention on the Elimination of All Forms of Racial Discrimination. The initial U.S. Report under the Covenant, which provides general information, was submitted to the Human Rights Committee in July 1994 (HRI/CORE/I/Add.49 and CCPR/C/81/Add.4) http://www.state.gov. The United States also ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment at the same time as it ratified the Convention on the Elimination of All Forms of Racial Discrimination. The initial U.S. Report under the Convention Against Torture was submitted to the Committee Against Torture in September 1999. . .

Prior to ratifying the Convention on the Elimination of All Forms of Racial Discrimination, the United States Government undertook a careful study of the requirements of the Convention in light of existing domestic law and policy. That study concluded that U.S. laws, policies and government institutions are fully consistent with the provisions of the Convention accepted by the United States. Racial discrimination by public authorities is prohibited throughout the United States, and the principle of non-discrimination is central to governmental policy throughout the country. The legal system provides strong protections against and remedies for discrimination on the basis of race, color, ethnicity or national origin by both public and private actors. These laws and policies have the genuine support of the overwhelming majority of the people of the United States, who share a common commitment to the values of justice, equality, and respect for the individual.

The United States has struggled to overcome the legacies of racism, ethnic intolerance and destructive Native American policies, and has made much progress in the past half century. Nonetheless, issues relating to race, ethnicity and national origin continue to play a negative role in American society. Racial discrimination persists against various groups, despite the progress made through the enactment of major civil rights legislation beginning in the 1860s and 1960s. The path towards true racial equality has been uneven, and substantial barriers must still be overcome.

Therefore, even though U.S. law is in conformity with the obligations assumed by the United States under the treaty, American society has not yet fully achieved the Convention's goals. Additional steps must be taken to promote the important principles embodied in its text. In this vein, the United States welcomed the visit of the UN Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance during the fall of 1994 and took note of the report of his findings (E/CN.4/1995/78/Add.1, dated 16 January 1995). In November 1997, the White House convened an unprecedented Hate Crimes Conference to formulate effective responses to the increasing number of violent crimes motivated by racial and ethnic sentiments. The President's Initiative on Race, the establishment of the White House Office on the President's Initiative for One America, and the preparation of this report constitute important parts of that effort. Indeed, in confronting issues of race every day, the American public is engaged in an ongoing dialogue to determine how best to resolve racial and ethnic tensions that persist in U.S. society.

Reflecting the multi-ethnic, multi-racial and multi-cultural nature of America today, the private sector plays an important role in combating racism in the United States, through activities and programs conducted by such non-governmental groups ("NGOs") as the American-Arab Anti-Discrimination Committee, the American Civil Liberties Union (ACLU), Amnesty International, the Anti-Defamation League, the Asian American Legal Defense and Education Fund, B'nai Brith, the Cuban-American National Council, Human Rights Watch, Indigenous Environmental Network, the Japanese American Citizens League, the Lawyers Committee for Human Rights, the Lawyers' Committee on Employment Rights, the League of United Latin-American Citizens, the Mexican-American Legal Defense and Education Fund (MALDEF), the National Asian Pacific American Legal Consortium, the National Association for the Advancement of Colored People (NAACP), the NAACP Legal Defense and Education Fund, the National Conference for Community and Justice, the National Council of La Raza, the National Congress of American Indians, the National Urban League, the Native American Rights Foundation, Na Koa Ikaika, the Organization of Chinese Americans, the Southern Organizing Committee, the Southern Poverty Law Center, and the Southwest Network for Economic and Environmental Justice, among many others. NGOs played a vital role in the Civil Rights Movement, have been actively involved in the President's Initiative on Race, and continue to be instrumental in working towards full achievement of the purposes of this Convention. Information about the activities of these and many other civil rights NGOs can be obtained through the Leadership Conference on Civil Rights, a coalition of organizations dedicated to promoting civil and human rights in the United States http://www.civilrights.org.

As a functioning, multi-racial democracy, the United States seeks to enforce the established rights of individuals to protection against discrimination based upon race, color, national origin, religion, gender, age, disability status, and citizenship status in virtually every aspect of social and economic life. Federal law prohibits discrimination in the areas of education, employment, public accommodation, transportation, voting, and housing and mortgage credit access, as well as in the military and in programs receiving federal financial assistance. The Federal government has established a wide-ranging set of enforcement procedures to administer these laws, with the U.S. Department of Justice exercising a major coordination and leadership role on most critical enforcement issues. State and local governments have complementary legislation and enforcement mechanisms to further these goals.

At both the federal and state levels, the United States has developed a broad range of legal and regulatory provisions and administrative systems to protect and to promote respect for civil rights. Enforcement agencies have worked diligently over the last three decades to improve enforcement of these rights and to promote education, training and technical assistance. In addition, over the years, the U.S. Congress has significantly strengthened the enforcement provisions of some of the civil rights statutes. The Federal government remains committed to providing full, prompt, and effective administration of these laws.

This commitment to eliminating racial discrimination began with the Emancipation Proclamation (effective on January 1, 1863), which freed the slaves in the Confederacy (the region comprised of the southern states which attempted to secede from the Union), and with the end of the American Civil War (1861-65). Since that time, American society has sought to create ever more effective means to address and resolve racial and ethnic differences without violence. Indeed, the amendments to the United States Constitution enacted at the war's conclusion, the Thirteenth Amendment (ending slavery), the Fourteenth Amendment (guaranteeing equal protection of the laws and due process of law), and the Fifteenth Amendment (guaranteeing Black [note 1] citizens the right to vote), directly addressed questions of racial discrimination. The laws enacted in the Reconstruction Era, immediately following the Civil War, also addressed the rights of minorities. Unfortunately, however, these laws did not succeed in changing attitudes born of generations of discrimination, and through restrictive interpretation and non-application, they were largely ineffective. Moreover, the U.S. Supreme Court invalidated federal authority to protect Blacks and others from state-sponsored discrimination. As a result, through the first half of the 20th Century, racial discrimination and segregation was required by law (de jure) in many of our country's southern states in such key areas as education, housing, employment, transportation, and public accommodations. Discrimination and segregation was a common practice (de facto) in most other portions of the country. In addition, though the Fifteenth Amendment guaranteed that the "right of citizens of the United States to vote shall not be abridged by the United States or by any state on account of race, color, or previous condition of servitude," many southern states enacted laws that were seemingly neutral, but were designed and implemented in a way to deny Black citizens the opportunity to participate in elections.

Prior to the middle of the 20th Century, there were no laws to address other forms of racial discrimination, such as discriminatory provisions in U.S. immigration law and policy. After the U.S. acquisition of California in 1848, there arose a need for cheap labor, and Chinese immigrants flocked to the western United States to work on the rapidly developing railroads. Anti-Asian prejudice and the competition that Chinese immigrants provided to American workers led to anti-Chinese riots in San Francisco in 1877, and then to the Chinese Exclusion Act of 1882. The Act banned all Chinese immigration for ten years, and it was extended until 1924 when a new immigration law prohibited all Asian immigration to the United States. Several years later, law and policy toward Asian immigrants was again changed, extending citizenship rights to those already in the United States and establishing a quota for immigrants from various countries. The quota was abolished in 1965.

With regard to Native Americans, the United States has historically recognized Native American tribes as self-governing political communities that pre-date the U.S. Constitution. From 1778 until 1871, the United States entered into numerous treaties with Indian tribes, which recognized tribal self-government, reserved tribal lands as "permanent homes" for Indian tribes, and pledged Federal protection for the tribes. Yet, the United States engaged in a series of Indian wars in the 19th Century, which resulted in significant loss of life and lands among Indian tribes. In the 1880s, over the protests of Indian leaders, including Sitting Bull and Lone Wolf, the United States embarked on a policy of distributing tribal community lands to individual Indians in an attempt to "assimilate" Indians into the agrarian culture of our Nation. This "Allotment Policy" resulted in a loss of almost 100 million acres of Indian lands from the 1880s until 1934, when President Franklin D. Roosevelt ended the policy with the enactment of the Indian Reorganization Act in 1934. This Act was intended to encourage Indian tribes to revitalize tribal self-government, so that Indian tribes might use their own lands and resources to provide a sustainable economy for their people. This policy of respect for Native American and Alaska Native tribes and cultures acknowledges tribal self-government and promotes tribal economic self-sufficiency.

In 1941, Franklin D. Roosevelt issued an Executive Order prohibiting discrimination on the basis of race, color, creed or national origin in the war industries or Federal government. However, the U.S. armed forces continued to operate racially segregated combat units until 1948. During World War II, persons of Japanese, German, and Italian ancestry suffered blatant forms of discrimination, justified on grounds of military necessity. Thousands of U.S. citizens, the majority of whom were ethnically Japanese, were "relocated" to internment camps throughout the western United States. This policy was held lawful by the U.S. Supreme Court in Korematsu v. United States, 321 U.S. 760 (1944). In recent years, however, the United States has recognized the wrongfulness of this policy and made lump sum payments to Japanese Americans who were detained in accordance with this policy, or to their survivors.

Following World War II, a combination of grass roots civic action and critical decisions by the Executive and Judicial branches of the Federal government set the stage for strategies for overcoming the legacy of slavery. In 1948, the U.S. Supreme Court banned the use of racially restrictive covenants that limited the sale of housing to members of racial or religious minorities. Shelly v. Kramer, 334 U.S. 1 (1948). In the same year, President Truman issued an Executive Order requiring equality of treatment for all persons in the U.S. Armed Forces. In 1954, the Supreme Court rendered its landmark decision in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), banning state-sponsored racial segregation in public education and creating the foundation for the emergence of the contemporary civil rights movements.

During the past forty years there has been a steady stream of legislation at the federal, state and local levels creating remedies for individuals affected by racial discrimination. Some of the most significant pieces of federal civil rights legislation include: the Civil Rights Act of 1964, which outlawed discrimination in public accommodations, employment, and education; the Voting Rights Act of 1965, which prohibited voting discrimination and thus brought Blacks from southern states into the political process, and which continues to protect all racial and language minorities throughout the nation from discrimination in the political process; and the 1968 Fair Housing Act which eliminated discrimination in housing and mortgage lending. Executive Orders issued by Presidents through the years have supplemented this catalog of protections by specifically requiring non-discrimination in a vast range of public programs. Similarly, the Immigration Act of 1965 repealed restrictions on the permanent entry of Asians and made family reunification, not race or national origin, the cornerstone of U.S. immigration policy.

In each of the areas covered by this Convention, the American people can point with pride at the great strides towards equality made over the past half-century. However, despite these enormous accomplishments, much remains to be done to eliminate racial discrimination altogether. While the scourge of officially-sanctioned segregation has been eliminated, de facto segregation and persistent racial discrimination continue to exist. The forms of discriminatory practices have changed and adapted over time, but racial and ethnic discrimination continues to restrict and limit equal opportunity in the United States. For many, the true extent of contemporary racism remains clouded by ignorance as well as differences of perception. Recent surveys indicate that, while most Whites do not believe there is much discrimination today in American society, most minorities see the opposite in their life experiences.

Indeed, in recent years the national conscience has been sharply reminded of the challenges to eradicating racism by such notorious incidents as the 1991 beating of Rodney King by two Los Angeles police officers; the death of Amadou Diallo in New York; the burning of Black churches, synagogues and mosques; the brutal murder of James Byrd, Jr., in Texas; the shootings at a Jewish cultural center in Los Angeles, and the pattern of discrimination revealed in civil rights litigation against the Denny's Restaurant chain and the Adams Mark Hotel. Further, heightened awareness and discussion of racial issues have led some to call on Americans to reexamine our history and to consider making reparations in some form to Blacks for past slavery. These and other issues have prompted vigorous debate in schools, media and government over issues of race.

No country or society is completely free of racism, discrimination or ethnocentrism. None can claim to have achieved complete success in the protection and promotion of human rights, and, therefore, all should welcome open dialogue and constructive criticism. As a society, the United States continues to search for the best means to eliminate all forms of racial, ethnic and religious discrimination through the mechanisms available within a pluralistic, federal system of government.

The United States has long been a vigorous supporter of the international campaign against racism and racial discrimination. Indeed, the United States will play an active role in the upcoming World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance in 2001. Toward that end, the United States is engaged in a domestic preparatory process that will invite the involvement of state and local government officials as well as academia and civil society.

The last half-century of progress has provided the United States with a useful perspective from which to offer insights to other countries with diverse and growing minority populations. By the same token, the people and government of the United States can learn from the experiences of others. The United States looks forward to a constructive dialogue with the members of the Committee.

 
 

 

 

                       

 
 

PART I -- GENERAL

In accordance with the Committee's guidelines, the following sections provide general information about the land and people, the political and legal structure, and the status of civil and human rights in the United States. Additional background information on these subjects can be found in the Initial Report of the United States to the Human Rights Committee under the International Covenant on Civil and Political Rights (HRI/CORE/I/Add. 49 and CCPR/C/81/Add.4) submitted in July 1994.

A.  Land and People

The United States of America is a federal republic of 50 states, together with a number of commonwealths, territories and possessions. The District of Columbia -- a federal enclave -- is the seat of the national government. The 50 states include 48 contiguous states, which span the North American continent, and the states of Alaska and Hawaii. As reported in the 1990 census, the United States had a land area of 9.2 million square kilometers, a population of 249 million, and an average population density of 27 per square kilometer.

There are several outlying areas under U.S. jurisdiction. These include Puerto Rico, the Virgin Islands of the United States, American Samoa, Guam, the Northern Mariana Islands, and several very small islands. In 1990, the outlying areas of the United States had a land area of 11,000 square kilometers and a population of 3.9 million. The U.S. population living abroad was not enumerated as part of the 1990 census; however, administrative data from U.S. government agencies indicate that a total of 923,000 federal employees and their dependents lived abroad in 1990.

The population of the United States increased from 249 million on April 1, 1990, to an estimated 273 million on July 1, 1999, yielding an average annual increase of about 1.0 percent. The population doubled from 76 million in 1900 to 152 million in 1950 and, based on a projection of 275 million for 2000, will increase slightly more than 80 percent from 1950 to 2000.

The United States is an increasingly diverse society. Virtually every national, racial, ethnic, cultural, linguistic, and religious group in the world is represented among its population. Federal statistics compiled by the U.S. Census Bureau recognize four racial categories: White (a person having origins in any of the original peoples of Europe, the Middle East, or North Africa); Black (a person having origins in any of the Black racial groups of Africa); American Indian, Eskimo or Aleut (a person having origins in any of the original peoples of North and South America -- including Central America); Asian or Pacific Islander (a person having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian subcontinent or in any of the original peoples of Hawaii, Guam, Samoa, or other Pacific Islands); and two ethnic categories: Hispanic origin (a person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin, regardless of race) and not of Hispanic origin [note 2]. Members of each of the racial categories may belong to either of the ethnic categories.

The United States recognizes that these racial and ethnic classifications are by no means perfect. Indeed, the people of the U.S. struggle with issues of racial and ethnic identity, continually re-evaluating both the question, "What is race?" and its numerous, complex responses. Racial and ethnic groups are comprised of individuals of substantial diversity, making simple classifications difficult. Placing such individuals in racial and ethnic categories can even lead to further discrimination through perpetuating stereotypes. Nevertheless, classifications -- imperfect as they may be -- are necessary for reasons of governance and administration, and the U.S. Census Bureau regularly reviews its methodology to ensure accuracy and inclusiveness.

The population of the United States is primarily White non-Hispanic; however, due partly to large-scale immigration in the past three decades, primarily from Latin America and Asia, the White non-Hispanic proportion has dropped. Between 1990 and 1999 while the White non-Hispanic population increased from 188.3 million to 196.1 million, its percentage of the total population dropped from 75.7 percent to 71.9 percent.

While the White non-Hispanic population grew by 4 percent from 1990 to 1999, each of the "minority" groups increased much more rapidly. During that period, the Asian and Pacific Islander population increased by 46 percent (from 7.5 million to 10.9 million); the Hispanic population increased by 40 percent (from 22.4 million to 31.4 million); the American Indian, Eskimo, and Aleut population increased by 16 percent (from 2.1 million to 2.4 million); and the Black population increased by 14 percent (from 30.5 million to 34.9 million) [note 3].

Based on population projections issued in January 2000 by the U.S. Census Bureau, the White non-Hispanic proportion of the U.S. population will have declined to 53 percent of a projected total population of 404 million by the year 2050. These projections indicate a Hispanic population in 2050 of 24 percent; a Black population of 15 percent; an Asian and Pacific Islander population of 9.3 percent; and an American Indian, Eskimo, and Aleut population of 1.1 percent [note 4].

The results of the 1990 census showed that the distribution of the U.S. population by urban residence and region of the country varied considerably by race and ethnicity. Blacks and Hispanics are much more likely to live in large urban areas than are non-Hispanic Whites. In 1990, 75 percent of the U.S. population lived in urban areas, defined generally as all places (incorporated or unincorporated) of 2,500 or more population. The corresponding proportions were as follows: 71 percent of the total White, non-Hispanic population lived in urban areas; 87 percent of the Black population; 56 percent of the American Indian, Eskimo, and Aleut population; 95 percent of the Asian and Pacific Islander population; and 91 percent of the Hispanic population. The proportions of the population residing in urbanized areas of 1 million or more population were as follows: 38 percent of the total population lived in such areas; 32 percent of the country's White non-Hispanics lived in such areas; 51 percent of Blacks; 20 percent of American Indians, Eskimos, and Aleuts; 66 percent of Asians and Pacific Islanders; and 61 percent of Hispanics.

Of the total population in 1990, 20 percent lived in the Northeast, 24 percent in the Midwest, 34 percent in the South, and 21 percent in the West. However, over one-half of the Black population (53 percent) lived in the South, despite massive migration to other regions of the country during the 20th century. Other minority groups were concentrated in the West, including 48 percent of American Indians, Eskimos, and Aleuts; 56 percent of Asians and Pacific Islanders; and 45 percent of Hispanics.

Historically, immigration has had a profound effect on the culture of the United States, and immigration continues to be a driving force in the diversification of the population today. Between 1990 and 1997, the foreign-born population increased from 19.8 million to an estimated 25.8 million, or from 7.9 percent to 9.7 percent of the population. This continues an upward trend since 1970 when the foreign-born population reached a 20th century low of 9.6 million, or 4.7 percent of the population. In the first half of the 20th century, the proportion of the foreign-born population peaked at 14.7 percent in 1910, and the number of foreign-born peaked at 14.2 million in 1930.

From 1990 to 1997, the foreign-born population increased sharply from Latin America (8.4 million to 13.1 million) and from Asia (5.0 million to 6.8 million). During this same period, the foreign-born population from Europe did not change significantly (4.4 million to 4.3 million). The proportion of the foreign-born population from Europe, historically the primary source of immigration to the United States, dropped from 62 percent in 1970 to 23 percent in 1990 and to 17 percent in 1997.

In 1997, 7.0 million, or 28 percent, of the foreign-born population in the United States was from Mexico, up from 4.3 million, or 23 percent, of the foreign-born population in 1990. The estimated foreign-born population from Mexico in 1997 was about equal to the estimated foreign-born population from the other nine leading countries combined: the Philippines (1,132,000), China (1,107,000), Cuba (913,000), Vietnam (770,000), India (748,000), the Soviet Union prior to its division into 12 independent republics (734,000), the Dominican Republic (632,000), El Salvador ( 607,000), and the United Kingdom (606,000).

These estimates suggest that of the 10 leading countries of birth of the United States foreign-born population in 1997, four are in Latin America, four are in Asia, and two are in Europe. In 1970, the ten leading countries included seven in Europe (Italy, Germany, United Kingdom, Poland, the Soviet Union, Ireland, and Austria), Canada, Mexico, and Cuba.

Because of large-scale immigration to the United States in recent decades, many U.S. residents speak a language other than English at home and are not fluent in English. The 1990 census revealed that among the 230 million individuals five years of age and over, 31.8 million spoke a language other than English at home. Among these, 17.9 million spoke English "very well," 7.3 spoke English "well," 4.8 million spoke English "not well," and 1.8 million spoke English "not at all."

Of the 92 million households enumerated in the 1990 census, 2.9 million were "linguistically isolated." These were defined as households in which no person 14 years and over spoke only English at home or spoke a language other than English at home and also spoke English "very well."

Of the 31.8 million individuals who spoke a language other than English at home in 1990, 17.3 million spoke Spanish, 8.8 million spoke other Indo-European languages, 4.5 million spoke Asian and Pacific Island languages, and 1.2 million spoke other languages. In addition to Spanish, which accounted for 54 percent of non-English languages, the leading languages spoken at home by numbers of speakers were French (1,930,000), German (1,548,000), Chinese (1,319,000), Italian (1,309,000), Tagalog (843,000), Polish (723,000), Korean (626,000), and Vietnamese (507,000).

B.   General Political Structure

At the national level, the U.S. Constitution establishes a democratic system of governance and guarantees a republican system at the state and local level. It establishes the will of the people as the basis of governmental legitimacy.

The Federal government consists of three branches: the executive, the legislative and the judicial. The executive branch is headed by the President, who is elected for a term of four years. The President has broad powers to manage national affairs and the workings of the Federal government, including the various executive departments and agencies. The President is charged with "taking care" that the laws are faithfully executed.

The U.S. Constitution vests legislative powers in the Congress, which consists of the U.S. Senate and the U.S. House of Representatives. The U.S. Senate is made up of 100 Senators; two elected from each state to six-year terms. Senate terms are staggered so that one third of the Senators are elected every two years. The U.S. House of Representatives is made up of 435 members, each of whom is elected to a two-year term from a single member congressional district. House seats are allotted to each state on the basis of population. The third branch consists of a system of independent federal courts headed by the Supreme Court of the United States and including subordinate appellate and trial courts throughout the country. Federal judges are appointed by the President with the advice and consent of the Senate. That means that Presidential appointments to the federal bench must be approved by a majority vote of the Senate. The power of the federal judiciary extends to civil actions for money damages and other forms of redress, such as injunctive relief, as well as to criminal cases arising under federal law. The Constitution safeguards judicial independence by providing that federal judges shall hold office during "good behavior" -- in practice, until they die, retire or resign.

At the state level, this tripartite governmental structure is replicated, with each state having its own constitution and executive, legislative, and judicial branches. The state governor acts as head of the executive; all states have two legislative houses (except Nebraska's, which has only one); and most state court systems mirror the federal, with at least three levels. One important difference is that state judges are often elected rather than appointed by the state's chief executive. Most states are divided into counties, and areas of population concentration are incorporated into municipalities or other forms of local government (cities, towns, townships, boroughs, parishes or villages). In addition, states are divided into school and special service districts to provide education and various other public services (e.g., water, sewer, fire and emergency, higher education, hospital services, transportation). The result is that literally hundreds of governmental entities and jurisdictions exist at the state and local levels; for the most part, the leaders of these entities are elected, although some are appointed by others who are elected.

A significant number of U.S. citizens live in areas outside the 50 states, yet within the political and legal framework of the United States. These areas include: the District of Columbia (seat of the national government and a federal enclave); the insular areas of American Samoa, Guam, the Commonwealths of Puerto Rico and the Northern Mariana Islands, the U.S. Virgin Islands, and Johnston, Midway, Palmyra and Wake Atolls. The specific governmental framework for each is largely determined by the area's historical relationship with the United States.

A special relationship exists between the U.S. government and Native Americans. While the diversity of the indigenous North American population makes generalizations difficult (there are more than 550 federally recognized American Indian and Alaskan Native tribes and groups, speaking more than 150 different languages), many enjoy considerable governmental autonomy on reservations or other Indian lands and Alaska villages. The provision of "federal recognition" reflects the principle of government-to-government relations founded under U.S. law and practice. Other tribal groups have over time been assimilated into local society.

Since 1924, Native Americans have enjoyed the protections of the U.S. Constitution when not on their own reservations. When on their own reservations, Native Americans are subject to Tribal law, the Indian Major Crimes Act and the Indian Civil Rights Act which sets forth the essential protections of the Bill of Rights of the U.S. Constitution. The protections afforded to Native Americans while on their own reservations are consistent with U.S. Constitutional guarantees.

The U.S. government has a similar relationship with Native Hawaiians. Since Hawaii's admission into the Union, Congress has endeavored to protect and improve the welfare of Native Hawaiians by establishing special programs in the areas of health care, education, employment, and loans; and enacting statutes to preserve Native Hawaiian culture, language, and history. A recent case decided by the U.S. Supreme Court, Rice v. Cayetano, 527 U.S. 1061, 120 S.Ct. 31 (1999), has cast doubt on the Congress' authority to legislate in a manner that grants Native Hawaiian preferences. The Court's decision in Rice has thus prompted spirited debate over the relationship between Native Hawaiians and the U.S. government, and indeed, the U.S. Departments of Interior and Justice are in the process of preparing a report on a reconciliation process between the Federal government and Native Hawaiians initiated by Senator Daniel K. Akaka in 1999.

C.   General Legal Framework

The U.S. Constitution is the central instrument of government and the supreme law of the land. Adopted in 1789, it is the world's oldest national, written constitution still in force. Together with its twenty-seven amendments (the first ten are known as the "Bill of Rights"), the Constitution guarantees the essential rights and freedoms of all individuals within the jurisdiction of the United States. State constitutions and laws may, and sometimes do, provide stronger protections than federal law (for example, in the area of freedom of religion and expression), but none may fall below the basic guarantees of the federal Constitution.

Under Article VI of the U.S. Constitution, duly ratified treaties become part of the "supreme law of the land" with a legal status equivalent to enacted federal statutes. As such, they prevail over previously enacted federal law (to the extent of any conflict) and over any inconsistent state or local law. Since existing U.S. law -- through constitutional and statutory protections against, and remedies for, racial discrimination -- complies with obligations assumed by the United States under the Convention, it was deemed unnecessary, at the time of ratification, to propose implementing legislation.

The essential guarantees of human rights and fundamental freedoms within the United States are set forth in the U.S. Constitution and statutes of the United States, as well as the constitutions and statutes of the U.S. states and other constituent units. In practice, the enforcement of these guarantees ultimately depends on the existence of an independent judiciary with the power to invalidate acts of the other branches of government that conflict with those guarantees. Maintenance of a republican form of government with vigorous democratic traditions, popularly elected executives and legislatures, and the deeply-rooted legal protections of freedoms of opinion, expression, religion and the press, all contribute to the protection of human rights against governmental limitation and encroachment.

There is no single statute, institution or mechanism in the United States by which internationally recognized human rights and fundamental freedoms are guaranteed or enforced. Rather, domestic law provides extensive protections through various Constitutional provisions and statutes which typically create administrative and judicial remedies at both the federal and state levels. Responsibility for identifying violations and enforcing compliance is therefore shared among the various branches at all levels of government. In practice, a major impetus for the protection of statutory and Constitutional rights derives from individual remedial actions, advocacy by non-governmental organizations, legislative and federal agency monitoring and oversight, and the ameliorative efforts of a free and energetic press.

Several parts of the Federal government bear special responsibilities for matters directly relevant to this Convention:

U.S. Department of Justice. The Civil Rights Division of the Department of Justice serves as the chief civil rights enforcement agency for the Federal government, charged with the effective enforcement of federal civil rights laws, in particular the Civil Rights Acts of 1964 and 1991, and the Voting Rights Act of 1965. The Civil Rights Division also exercises the authority given to the Attorney General under Executive Order No. 12250 to ensure consistent and effective enforcement of laws prohibiting, among other things, discrimination on the basis of race, color, national origin, religion, or sex in programs and activities receiving federal financial assistance, as well as on the basis of disability in programs receiving federal financial assistance and conducted by federal agencies. The Division also enforces laws prohibiting patterns or practices of police misconduct (42 U.S.C. sec. 14141), protecting the constitutional and federal statutory rights of persons confined to certain institutions owned or operated by state or local governments, such as prisons, jails, nursing homes, and mental health facilities (the Civil Rights of Institutionalized Persons Act (CRIPA)), and the Equal Credit Opportunity Act and the Fair Housing Act (the Department of Justice shares responsibility for administration of the latter statute with the Department of Housing and Urban Development). Under these various statutes, the Division may bring civil actions to enjoin acts or patterns of conduct that violate constitutional rights. In its civil cases, the Justice Department's responsibilities permit it to go to federal court to seek broad remedial orders that may include compensatory damages, civil penalties, injunctive relief and, in some cases, punitive damages.

The Division also has authority to prosecute criminally those who use force or threat of force to violate a person's rights to non-discrimination (so called "hate crimes") and state and local law enforcement officers who engage in the use of excessive force (18 U.S.C sec. 242).

The Community Relations Service (CRS), an independent agency within the Justice Department, is the Federal government's "peacemaker" for community conflicts and tensions arising from differences of race, color, and national origin. Created by the Civil Rights Act of 1964, CRS is the only federal agency whose purpose is to assist state and local units of government, private and public organizations, and community groups with preventing and resolving racial and ethnic tensions, conflicts and civil disorders, and in restoring racial stability and harmony.

Within the Department of Justice, the Office of Special Counsel for Immigration Related Unfair Employment Practices enforces prohibitions against citizenship status discrimination in employment, national origin discrimination by small employers, and document abuse associated with employer sanctions.

U.S. Equal Employment Opportunity Commission. The Equal Employment Opportunity Commission (EEOC), an independent, bi-partisan agency within the executive branch established by the Civil Rights Act of 1964, has enforcement and compliance responsibilities concerning the elimination of discrimination based on race, color, national origin, religion, gender, age and disability by private and public employers in all aspects of the employment relationship.

Since its inception, the EEOC has obtained over $2.2 billion in monetary benefits for parties bringing discrimination charges through administrative actions, i.e., through conciliation and settlement. In 1999 alone, the EEOC obtained over $210 million in these actions.

U.S. Commission on Civil Rights. While not an enforcement agency, the U.S. Commission on Civil Rights also plays an important role in safeguarding the rights recognized by the Convention. The Commission has a broad mandate to monitor and report on the status of civil rights protections in the United States. As an independent, bipartisan agency, it collects information on discrimination or denials of equal protection of the laws because of race, color, and national origin, evaluates federal laws, and makes recommendations to the President and the Congress based on the effectiveness of governmental equal opportunity and civil rights programs.

Other federal departments and agencies also have important enforcement responsibilities. For example:
  Within the Department of Education, the Office for Civil Rights is charged with administering and enforcing civil rights laws related to education, including desegregation of the country's elementary and secondary schools. This office gives particular attention to discrimination against minorities in special education and remedial courses, in math and science and advanced placement courses, in the use of tests and assessments, and in higher education admissions.

 

  The Assistant Secretary for Fair Housing and Equal Opportunity within the Department of Housing and Urban Development administers the laws prohibiting discrimination in public and private housing and ensures equal opportunity in all community development programs. HUD's Office of Fair Housing and Equal Opportunity administers two grant programs: the Fair Housing Assistance program (which provides financial assistance to supplement enforcement activities at the state and local levels) and the Fair Housing Initiatives Program (a competitive grant program to provide funding to private fair housing groups).

 

  The Office of Civil Rights within the Department of Health and Human Services administers civil rights laws prohibiting discrimination in federally-assisted health and human services programs, with particular emphasis on areas of managed care, quality of health care, inter-ethnic adoption, services to limited English proficient persons, and welfare reform.

 

  Within the Department of Labor, the Office of Federal Contract Compliance Programs administers laws prohibiting discrimination and requiring affirmative action in employment by Federal contractors and subcontractors on the bases of race, gender, national origin and other grounds. The Department's Civil Rights Center enforces laws prohibiting discrimination by recipients of federal financial assistance from the Department of Labor on the bases of race, religion, national origin, gender, disability and other grounds.

 

  Within the Department of Agriculture, civil rights programs are aimed at ensuring that all USDA customers are treated fairly and equitably. In 1997, USDA appointed a Civil Rights Action Team to address allegations of discrimination against minority farmers in the United States. As a result of its investigations, the Team concluded that minority farmers had indeed lost significant amounts of land and potential farm income as a result of discriminatory practices by the USDA. That same year, a major class action lawsuit was filed against the United States and the USDA alleging widespread discrimination against Black farmers in the United States. As a result of the lawsuit, a consent decree has been entered, establishing a claims mechanism through which individual class members can resolve their complaints in an expeditious and fair manner. To date, 11,120 Black farmers have received over $323 million in compensation.

 

  The Office for Equal Opportunity within the Department of the Interior administers laws prohibiting discrimination based on race, color, and national origin in federally assisted and federal employment programs. These programs ensure that state and local park, recreation, fishing, hunting, and historic preservation programs and activities are provided to individuals in the United States on an equal opportunity basis regardless of race, color, or national origin. In addition, this office enforces compliance with civil rights laws with respect to employment in state natural resource programs and administers civil rights laws prohibiting unlawful discrimination against employees of, and applicants for employment with, the Department of Interior.

 

  Within the Department of Defense, the Deputy Assistant Secretary for Equal Opportunity is responsible for implementing and monitoring the Department's civilian and military equal opportunity/affirmative action plan goals and objectives.
In addition to the agencies listed, virtually all federal agencies that provide federal financial assistance have civil rights offices whose responsibility it is to ensure that recipients of that assistance do not engage in unlawful discrimination. This includes the major providers of federal assistance such as the Departments of Agriculture, Commerce, Education, Health and Human Services, Housing and Urban Development, Justice, Labor, Transportation, and Veterans' Affairs. All twenty-eight federal providers of federal assistance are responsible for ensuring that their recipients do not discriminate, and the Civil Rights Division of the Justice Department is responsible for ensuring that all Federal funding agencies effectively and consistently enforce their non-discrimination responsibilities.

Furthermore, a number of federal agencies, including the Environmental Protection Agency, the Federal Emergency Management Agency, the Federal Communications Commission and the Departments of Agriculture, Energy, Commerce, Defense, Health and Human Services, Housing and Urban Development, Justice and Labor have established offices or points of contact to specifically address issues affecting Native Americans, their lands and resources. Also, many of these agencies have developed agency-wide policies, based on the concepts of self-governance, the federal trust responsibility, consultation and the government-to-government relationship to guide their work with Indian tribes.

In the U.S. Congress, special emphasis has long been given to matters involving discrimination on the basis of race, color, national origin, and ethnicity. In addition to the oversight functions of various standing committees in both Houses (such as Judiciary, Indian Affairs, and Commerce, Justice, State, the Judiciary and Related Agencies), attention is focused through other mechanisms such as the Asian Pacific, Black, Hispanic, Native American and Human Rights Caucuses.

D.   Information and Publicity

In the United States, information about human rights is readily available. As a general matter, people are well-informed about their civil and political rights, including the rights of equal protection, due process, and non-discrimination. The scope, meaning and 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.

Information about human rights treaties is freely and readily available to any interested person in the United States. The constitutional requirement that the U.S. Senate give its advice and consent to ratification of a treaty ensures that there is a public record of its consideration, typically on the basis of a formal transmittal by the President, a record of the Senate Foreign Relations Committee's hearing and report to the full Senate, and the action of the Senate itself. Moreover, the text of any treaty, whether or not the United States is a party, can be readily obtained from any number of sources, including the Library of Congress, public libraries, educational institutions and non-governmental organizations.

Increasingly, over the last few years information about human rights, civil rights and related subjects has become available on the Internet. For example, the Department of Justice web site http://www.usdoj.gov includes information about the Civil Rights Division, links to all sections of the Division that include information about settlements, high profile cases, the laws enforced by each section, contact information for each section, information on special topics, selected judicial decisions, and legal briefs filed by the Division. The U.S. Commission on Civil Rights web site http://www.usccr.gov includes a description of the Commission's duties, function and composition as well as information on how to file complaints and contact the Commission. The U.S. Equal Employment Opportunity Commission web site http://www.eeoc.gov includes guidance directed to employers and employees, information about the EEOC, enforcement statistics, and selected civil rights laws, regulations and guidance. Individuals can also find helpful information at the fair housing section of the U.S. Department of Housing and Urban Development web site http://www.hud.gov/fairhsg1.html where individuals can file housing discrimination complaints on-line. The Department of Interior Diversity web site http://www.doi.gov/diversity includes information on all Department of Interior civil rights policies and programs, special employment programs, complaint processing procedures for employees and applicants and for individuals filing complaints against federally-assisted state agency programs. The Department of Interior's Office of Insular Affairs operates a web site http://www.doi.gov/oia that includes fact sheets detailing the Federal government's responsibilities to and protection of the indigenous peoples of the U.S. insular areas of the United States. A comprehensive listing of Federal government web sites providing information about the civil rights enforcement efforts of agencies providing federal financial assistance can be found at the Internet site of the Justice Department Civil Rights Division's Coordination and Review Section, http://www.usdoj.gov/crt/cor/index.htm. Numerous other web sites, operated by U.S. government agencies as well as by NGOs, include helpful information on civil rights, racial discrimination and legal remedies in the United States.

In the case of the Convention on the Elimination of All Forms of Racial Discrimination, the record of its consideration is set forth in several official documents, including, inter alia, the Initial Message from the President transmitting the Convention to the Senate on February 23, 1978 (Sen. Exec. Doc. 95-C); the printed record of the public hearings before the Senate Foreign Relations Committee on May 11, 1994 (S. Hrg. 103-659); the Report and Recommendation of the Senate Foreign Relations Committee, dated June 2, 1994 (Sen. Exec. Rep. 103-29), and the record of consideration on the floor of the Senate (Cong. Rec. S6601, daily ed. June 8, 1994).

At the May 1994 hearing before the Senate Foreign Relations Committee, representatives of various non-governmental organizations involved in human rights, as well as concerned academics and legal practitioners, testified in person or submitted written comments for consideration by the committee and for inclusion in its formal records. The Administration was represented by the Assistant Attorney General for Civil Rights, the Assistant Secretary of State for Democracy, Human Rights and Labor, and the Legal Adviser of the Department of State. As part of the United States' program to increase public awareness of human rights obligations, this Report will be published and made available to the public through the Government Printing Office and the depositary library system, as was done with the U.S. rs on compliance with the International Covenant on Civil and Political Rights and the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment. Copies of the Report and the Convention will also be widely distributed within the executive branch of the U.S. government and to federal judicial authorities, as well as to relevant state officials, state and local bar associations, and non-governmental human rights organizations. The Report and Convention will also be available on the Department of State web site at http://www.state.gov.

E.   Factors Affecting Implementation

Although there has been significant progress in the improvement of race relations in the United States over the past half-century, serious obstacles remain to be overcome. Overt discrimination is far less pervasive than it was thirty years ago, yet more subtle forms of discrimination against minority individuals and groups persists in American society. In its contemporary dimensions discrimination takes a variety of forms, some more subtle and elusive than others. Among the principal causative factors are:
  The persistence of attitudes, policies and practices reflecting a legacy of segregation, ignorance, stereotyping, discrimination and disparities in opportunity and achievement.

 

  Inadequate enforcement of existing anti-discrimination laws due to under-funding of federal and state civil rights agencies. Resource limitations cause delays in investigation, compliance review, technical assistance and enforcement.

 

  Ineffective use and dissemination of data on racial and ethnic issues and information on civil rights protection. Too many persons do not believe that racial discrimination is a common or active form of mistreatment and are therefore less supportive of race conscious remedial actions. Moreover, many minority groups do not have adequate information about government-funded programs and activities because information is not distributed in languages they can understand in often remote areas throughout the United States. This is particularly true for some American Indian and Alaska Native populations.

 

  Economic disadvantage. In the contemporary United States, persons belonging to minority groups are disproportionately at the bottom of the income distribution curve. While it is inaccurate to equate minority status with poverty, members of minority groups are nonetheless more likely to be poor than are non-minorities. It is also true, in the United States as elsewhere, that almost every form of disease and disability is more prevalent among the poor, that the poor face higher levels of unemployment, that they achieve lower educational levels, that they are more frequently victimized by crime, and that they tend to live in environments (both urban and rural) which exacerbate these problems.

 

  Persistent discrimination in employment and labor relations, especially in the areas of hiring, salary and compensation, but also in tenure, training, promotion, layoff and in the work environment generally. Over the past few years, for example, complaints have been leveled against several major employers including Texaco, Shoney's, General Motors, Pitney Bowes and Avis.

 

  Continued segregation and discrimination in housing, rental and sales of homes, public accommodation and consumer goods. Even where civil rights laws prohibit segregation and discrimination in these areas, such practices continue.

 

  Lack of equal access to business capital and credit markets. Minorities continue to have difficulty raising capital or securing loans to finance a business. Without sufficient access to such financial markets, minority entrepreneurs will continue to start and grow businesses at a much slower rate than their White counterparts. This problem further lessens the prospects of wealth creation in under-served communities, thus perpetuating the cycle of poverty that disproportionately affects minorities.

 

  Lack of access to technology and high technology skills. Despite the rapid development of the Internet and other information technologies, minorities have participated at lower rates in the so-called "new economy" because they lack the skills necessary to fill the numerous technology jobs created everyday. Technology-based jobs are projected to be a large percentage of new jobs that will be created over the next ten years. If minorities are not trained with information technology skills, a large number of workers will be unable to benefit from the tremendous wealth generated by this segment of the economy.

 

  Lack of educational opportunities. Largely because of the persistence of residential segregation and so-called "White flight" from the public school systems in many larger urban areas, minorities often attend comparatively under-funded (and thus lower-quality) primary and secondary schools. Thus minority children are often less prepared to compete for slots in competitive universities and jobs. While efforts to dismantle segregation in our nation's schools have enjoyed some success, segregation remains a problem both in and among our schools, especially given roll-backs in affirmative action programs.

 

  Discrimination in the criminal justice system. The negative overall impact of the criminal justice system on Blacks, Hispanics and members of other minority groups is another barrier to our achieving the goals of the Convention. Various studies indicate that members of minority groups, especially Blacks and Hispanics, may be disproportionately subject to adverse treatment throughout the criminal justice process. High incarceration rates for minorities have led to the political disenfranchisement of a significant segment of the U.S. population. Moreover, many have raised concerns that incidents of police brutality seem to target disproportionately individuals belonging to racial or ethnic minorities.

 

  Disadvantages for women and children of racial minorities. Often, the consequences of racism and racial discrimination are heightened for women and children. Whether in the criminal justice system, education, employment or health care, women and children suffer discrimination disproportionately. Startlingly high incarceration rates for minority women and children have placed them at a substantial social, economic and political disadvantage.
 

 

 
  Health care. Persons belonging to minority groups tend to have less adequate access to health insurance and health care. Historically, ethnic and racial minorities were excluded from obtaining private insurance, and although such discriminatory practices are now prohibited by law, statistics continue to reflect that persons belonging to minority groups, particularly the poor, are less likely to have adequate health insurance than White persons. Racial and ethnic minorities also appear to have suffered disproportionately the effects of major epidemics like AIDS. For example, in 1999, 54 percent of new cases of HIV infection occurred among Blacks, even though they make up less than 15 percent of the population.

 

  Voting. While the Voting Rights Act has made it possible for Blacks and Hispanics to obtain an equal opportunity to elect their candidates of choice to local, state, and federal office, the federal courts -- since the early 1990s -- have become more restrictive in permitting race-conscious apportionment of voting districts. Thus, many of the gains made by minority voters in the 1970s and 1980s have been jeopardized.

 

  Discrimination against immigrants. Whether legal or illegal, recent immigrants often encounter discrimination in employment, education and housing as a result of persistent racism and xenophobia. Some also contend that U.S. immigration law and policy is either implicitly or explicitly based on improper racial, ethnic and national criteria. Language barriers have also created difficulties of access, inter alia, to health care, education and voting rights for some.
 

 

Specific examples of these shortcomings include the following incidents:
  On June 8, 1998, James Byrd, Jr., a Black man, was chained to the back of a pickup truck and dragged to his death in Jasper, Texas. Two of the three young White men who killed James Byrd were connected with White supremacist groups. The three men accused of committing this crime were successfully prosecuted under Texas law by the state of Texas, with the assistance of the U.S. Department of Justice. Two received the death penalty; the third was sentenced to life imprisonment.

 

  One of the most high-profile cases in recent years was the videotaped beating of Rodney King by officers of the Los Angeles Police Department. After the police officers were acquitted on state charges, riots broke out in Los Angeles and in other cities throughout the country. Subsequent to these acquittals, however, two of the four officers involved were convicted on federal charges and sentenced to thirty months in prison.

 

  In 1999, Black guests of the Adams Mark Hotel during the Black College Reunion in Daytona Beach, Florida were allegedly mistreated, including being required to wear wrist bands identifying them as guests of the hotel, while White guests did not receive such treatment. The Department of Justice filed suit against the hotel, and pursuant to a proposed settlement, the hotel chain will agree, inter alia, to adopt a comprehensive plan to ensure every hotel will be operated in a non-discriminatory fashion.

 

  The Civil Rights Division of the U.S. Department of Justice has initiated several investigations into allegations of discriminatory highway traffic stops and discriminatory stops of persons travelling in urban areas (so-called "racial profiling") by state and local law enforcement authorities. Its investigation of the New Jersey state police led to a lawsuit and consent decree emphasizing non-discrimination in policy and practices as well as improved data collection, training, supervision and monitoring of officers. A similar agreement was reached with the Montgomery County, Maryland Police Department.

 

  In Jackson, Mississippi more than 200 Blacks were allegedly denied home improvement loans even though they received passing scores on credit scoring systems. Black applicants were more than three times more likely to have their loan applications denied than similarly situated White applicants. The United States filed a lawsuit, which was settled in the amount of $3 million, to be paid to Black applicants who had been denied loans.

 

  Throughout the United States, primary and secondary schools, colleges and universities, and professional sports teams use depictions of Native Americans as mascots. Native American groups have challenged these uses on the basis that they are demeaning and offensive.
 

 

PART II - IMPLEMENTATION OF SPECIFIC ARTICLES


 

Since its Civil War, the United States has worked to develop the proper configuration of constitutional, statutory and voluntary cooperation to transform race relations from conditions of political and economic domination by the White, landed gentry to legal and actual parity for all U.S. residents. Because the relevant laws derive from specific historical and social circumstances over a lengthy period, they have taken shape in a manner which does not directly parallel the specific articles of the Convention. Moreover, some aspects of this body of law, and of the national political structure, caused the United States to condition its adherence to the Convention on a few precisely crafted reservations, understandings and declarations. Given these facts, it is useful to preface the discussion of the specific articles with the following background information.

A.   Prohibition of Racial Discrimination

Existing U.S. Constitutional and statutory law and practice provide strong and effective protections against discrimination on the basis of race, color, ethnicity or national origin in all fields of public endeavor and provide remedies for anyone who, despite these protections, becomes a victim of discriminatory acts or practices anywhere within the United States or subject to its jurisdiction. Especially since the landmark 1954 decision of the U.S. Supreme Court in Brown v. Board of Education, the notion of racial equality has been fundamental to the Constitutional and statutory law of the United States.

 

 

 

1. Constitutional Provisions
 
 
   

Thirteenth Amendment

   

Fifth and Fourteenth Amendments

   

Fifteenth Amendment

 

The constitutional protections against racial discrimination are contained in the Thirteenth, Fourteenth and Fifteenth Amendments, all of which were ratified in a five-year period following the conclusion of the Civil War in 1865, and in the Fifth Amendment, which since 1954 has been construed to forbid the Federal government from engaging in racial discrimination.

(a)   Thirteenth Amendment. The Thirteenth Amendment abolished slavery. Section 2 of the Amendment authorizes Congress to enforce the prohibition of slavery through "appropriate legislation." The Amendment has been interpreted broadly, not only to abolish slavery, but also to permit Congress to eliminate the "badges and incidents of slavery," i.e., those vestiges of custom, practice and private action that were the legacy of slavery. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440 (1968). As set forth below, civil rights statutes have been enacted pursuant to this interpretation of Section 2 of the Thirteenth Amendment. The Thirteenth Amendment and legislation implementing its commands are fully consistent with the Convention and substantially further its goals.

(b)   Fifth and Fourteenth Amendments. The part of the Fourteenth Amendment that speaks to racial discrimination is the Equal Protection Clause, which provides that "[n]o State shall deny to any person within its jurisdiction the equal protection of the laws." Equal protection strictures apply to the Federal government through the Due Process Clause of the Fifth Amendment. Bolling v. Sharpe, 347 U.S. 497 (1954).

The Fourteenth Amendment was enacted in the period immediately after the end of the U.S. Civil War, a time at which federalism issues were much at the forefront of the nation's juridical consciousness. The drafters of the Fourteenth Amendment intended that its prohibition on States' making or enforcing "any law which shall abridge the privileges or immunities of citizens of the United States," would protect the fundamental rights of U.S. citizens, particularly civil rights, from state encroachment.

However, for almost one hundred years after the enactment of the Fourteenth Amendment, the federal courts refused to apply its principles to state-sponsored racial discrimination and de jure segregation. Thus, this kind of un-equal treatment was the rule, rather than the exception, all over the United States until the middle of the Twentieth Century. In 1954, the U.S. Supreme Court, for the first time, applied the Fourteenth Amendment's requirements of "equal protection under the law" against the states and ushered into U.S. law the idea that state-sponsored segregation was antithetical to the country's fundamental principles. See Brown v. Board of Education, 347 U.S. 483 (1954).

Since Brown, the U.S. Supreme Court has interpreted the Equal Protection Clause of the Fourteenth Amendment as a "direction that all persons similarly situated should be treated alike." Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985). In essence, it precludes governments from adopting unjustifiable legal distinctions between groups of people. Plyler v. Doe, 457 U.S. 202, 216-219 (1982). Over time, the Supreme Court has made plain that distinctions based on race or national origin are inherently suspect, and thus are rarely justifiable. McLaughlin v. Florida, 379 U.S. 184, 192 (1964). When challenged in court, such distinctions are subject to "strict scrutiny," the most exacting standard of constitutional review. Under strict scrutiny, a classification violates the Equal Protection Clause unless it is necessary to promote a "compelling state interest" and is "narrowly tailored" to achieve that interest. Palmore v. Sidotti, 466 U.S. 429, 432 (1984). In practice, most racial or ethnic classifications fail to satisfy those standards. Bernal v. Fainter, 467 U.S. 216, 219 n.6 (1984). Strict scrutiny applies not only to laws that specifically categorize individuals on the basis of race or ethnicity, but also to ostensibly neutral laws that are enforced only against certain racial or ethnic groups. Personnel Administrator v. Feeney, 442 U.S. 256, 277 (1979) (citing Yick Wo v. Hopkins, 118 U.S. 356 (1886)).

Even where racial or ethnic classifications are not at issue, strict scrutiny applies to legal distinctions that the Supreme Court has determined interfere with the exercise of certain fundamental rights. Under this strand of equal protection doctrine, the Supreme Court has invalidated discriminatory measures in the areas of voting, Harper v. Virginia State Board of Education, 383 U.S. 663 (1966), inter-state and foreign travel, Aptheker v. Secretary of State, 378 U.S. 500 (1964), and access to the judiciary, Griffin v. Illinois, 351 U.S. 12 (1956).

In short, the Equal Protection Clause, as interpreted by the Supreme Court is consistent with the enumerated guarantees of Article 5 of the Convention.

(c)   Fifteenth Amendment. The last of the post-Civil War era Amendments, the Fifteenth Amendment provides that the right to vote "shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude." This amendment, in conjunction with the Fourteenth Amendment, is the basis of some of the federal legislation protecting the right of individuals to vote and to participate in the political process free from discrimination based on race or ethnicity. For the first few years after the enactment of the Fifteenth Amendment, Blacks in the United States exercised their right to vote in strong numbers in the South. However, because of a combination of forces (e.g., the resurgence of the Ku Klux Klan, often acting with the complicity of local law enforcement) and the imposition of restrictive voting qualifications in many southern states (such as the poll tax and literacy tests, often administered in a discriminatory manner), Blacks in the South were once again locked out of the electoral process. In the years between 1876 and the mid-1960s, neither Congress nor the federal courts took action to combat the efforts by Southern states to prevent Blacks from participating in the political process. However, after years of struggle, lead by the efforts of Martin Luther King, Jr. and others, in 1964 the country ratified the Twenty-fourth Amendment to the Constitution prohibiting the requirement of payment of a poll tax as a qualification for voting for federal offices, and in 1965 the U.S. Congress enacted the Voting Rights Act which made real the Fifteenth Amendment's prohibition against discrimination in voting. This Constitutional and statutory framework is consistent with the voting guarantee among the rights recognized by Article 5 of the Convention.

 

 

2. Federal Legislation

                       

 

Since the Civil War, Congress has adopted a number of statutes designed to supplement and expand upon the prohibitions of the Thirteenth, Fourteenth and Fifteenth Amendments in an effort to eliminate racial discrimination in a broad range of governmental, economic and social activity.

(a)   The 1866 and 1871 Civil Rights Acts. These post-Civil War, Reconstruction Era statutes prohibit racial discrimination in both the civil and criminal arenas. As codified at 42 U.S.C. sec. 1981-85, racial discrimination is prohibited in the making and enforcement of private contracts, including employment, education, health care and recreational facilities (sec. 1981) and in the inheritance, purchase, sale or lease of real and personal property (sec. 1982). They also create a cause of action for civil damages against anyone who under "color of law" subjects another to unlawful discrimination (sec. 1983), as well as those who conspire to deprive individuals of their federally secured rights (sec. 1985). Similar prohibitions apply in the criminal context, including the prohibition against conspiracies (public or private) to "injure, oppress, threaten or intimidate" any person in the exercise of any Constitutional or other federally protected right (18 U.S.C. sec. 241); and against the willful deprivation of rights under "color of law" (18 U.S.C. sec. 242) (used most frequently to prosecute law enforcement officials for acts of excessive force).

With its review of The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, in 1873 the U.S. Supreme Court had its first opportunity to examine the scope of the Reconstruction amendments to the U.S. Constitution, and thereby establish the extent of the Federal government's authority to legislate in the area of civil rights. In rejecting a Thirteenth and Fourteenth Amendment challenge to a Louisiana statute granting a monopoly to engage in the slaughterhouse business in New Orleans, the Court concluded that neither the Thirteenth Amendment nor the privileges and immunities or due process clauses of the Fourteenth Amendment could be interpreted to create a prohibition against discrimination by the States against groups of their citizens. Such a reading, the Court held, would "radically [change] the whole theory of the relations of the State and Federal governments to each other and both of these governments of the people."

The Supreme Court's opinion in the Slaughter-House Cases substantially slowed the momentum to provide federal civil rights protections during the Reconstruction Era. Based on the Court's reasoning, numerous statutes enacted for the protection of the newly freed slaves were invalidated. This judicial dismantling of Reconstruction Era legislation was accompanied by a collapse in the political coalition behind the Reconstruction movement. The result was a hodge-podge of state civil rights protections, many of which were either weak, non-existent, or rarely enforced. It was not until the mid-twentieth century and the passage of the Civil Rights Act of 1964, when strong, comprehensive federal protection for civil rights was established.

(b)   The Civil Rights Act of 1964. Often described as the most important civil rights legislation in U.S. law, this statute prohibits discriminatory acts involving public accommodation (Title II), education (Title IV), federally-funded programs (Title VI) and employment (Title VII). This legislation has been repeatedly amended in the years since 1964. See, e.g., Pub.L. 102-166 (1991) (establishing the burden of proof in Title VII disparate impact cases, prohibiting the discriminatory use of test scores, refining the definition of an unlawful business practice, and extending coverage to U.S.-controlled foreign corporations); Pub.L. 92-261, sec. 2(2) (1972) (extending the statute to state and local government employers, eliminating the exemption for the employment of individuals engaged in the educational activities of non-religious educational institutions, and extending its coverage to applicants for employment or membership in organizations); see also Glass Ceiling Act, Pub.L.102-166, Title II (1991) (establishing a commission to study issues related to the under-representation of women and minorities in management and decision-making positions in business).

          (i)   Title II of the Act, codified at 42 U.S.C. sec. 2000a, prohibits discrimination on the basis of "race, color, religion or national origin" in places of "public accommodation," which are defined to include establishments affecting commerce that are hotels, motels and other lodging, restaurants and other places serving food, theaters, concert halls, sports stadiums and other places of entertainment or exhibition and gasoline stations.

          (ii)   Title IV, codified at 42 U.S.C. sec. 2000c et seq., provides for the orderly desegregation of public schools and for non-discriminatory admissions to public colleges and universities.

          (iii)   Title VI, codified at 42 U.S.C. sec. 2000d et seq., provides that no person in the United States shall be excluded from participation in, or denied the benefits of, any federally-funded or assisted program or activity on account of race, color or national origin. This provision has had a particularly salutary effect in the continuing efforts to eliminate de jure school and housing segregation.

          (iv)   Title VII, codified at 42 U.S.C. sec. 2000e et seq., is the primary federal statute addressing discrimination in employment. Subject to certain exceptions, it prohibits discrimination on the basis of, inter alia, race, color and national origin in hiring, compensation, conditions of employment and dismissals by employers (defined as those that employ more than fifteen employees), labor organizations and employment agencies affecting commerce. In addition, employers are prohibited from engaging in intentional discrimination on the basis of race by 42 U.S.C. section 1981. Complaints under Title VII are initially filed with the Equal Employment Opportunity Commission. Those complaints filed against state or local government employers can be referred to the Department of Justice for enforcement in federal court. In 1991, Congress amended Title VII to provide additional remedies for intentional discrimination in the workplace.

(c)   The Voting Rights Act of 1965. Among the most fundamental rights in any democratic system is the right to participate freely in the government of one's country without discrimination on the basis of race, color or national origin. In the United States, the Fifteenth Amendment, ratified in 1870, prohibits denial or abridgement of the right to vote on account of race, color or previous condition of servitude. While in the northern, non-slave-holding states, Blacks frequently (but not uniformly) were already enfranchised, the Fifteenth Amendment and legislation adopted at that time to enforce it did not lead to the permanent enfranchisement of Blacks in the former slave-holding states. In response to the Fifteenth Amendment, many states, through a combination of physical and economic coercion and through the use of state legal systems, almost totally excluded Blacks from the political process in several southern states by the end of the 19th century. Through the work of civil rights activists such as Martin Luther King, Jr., the NAACP Legal Defense Fund and others, a nation-wide political movement created a sea-change in the country by the middle of the 20th Century.

As a result, through a series of lawsuits decided by the Supreme Court of the United States, Civil Rights Acts enacted by the United States Congress in 1957, 1960, and 1964, and especially the Voting Rights Act of 1965, Blacks and other racial and ethnic minorities have gained the right to vote free from racial discrimination in every part of the United States.

The Voting Rights Act has been extended or strengthened by Congress on several occasions (1970, 1975, 1982, and 1992) and has been interpreted or amended to protect all racial or ethnic minority groups, including language minorities. The Act authorizes the United States Attorney General and private parties to bring lawsuits in federal court to enforce the Fifteenth Amendment to ensure that minority voters are afforded an equal opportunity to elect their candidates of choice to state, local, and federal office. The Act also bans the use of literacy tests and other tests and devices which had been applied in a discriminatory manner to disqualify eligible minority applicants from being able to register to vote. In addition to general provisions banning discriminatory practices that apply to the entire nation, the Act has specialized mechanisms that apply to areas of the country with the most severe history of discrimination against Blacks. This part of the Act requires federal pre-approval for any proposed changes in voting laws and practices to prevent the implementation of new discriminatory laws and practices; authorization of federal observers to monitor elections to assure that minority voters are permitted to vote free from discrimination or intimidation, and that their votes are actually counted; and the provision of bilingual voting information and assistance is required in certain areas of the country.

(d)   The Fair Housing Act. This statute, originally enacted as Title VIII of the Civil Rights Act of 1968 and amended by the Fair Housing Amendments Act of 1988, is codified at 42 U.S.C. sec. 3601-19. It prohibits discrimination on the grounds, inter alia, of race, color, religion, or national origin in the sale or rental of housing as well as in other real estate related transactions (i.e., lending, insurance, and appraisal practices) and brokerage services. Exceptions are provided for private clubs, single family dwellings and owner-occupied boarding houses with no more than three other family units, except when the owner uses the services of real estate brokers or others. It also includes a criminal provision, 42 U.S.C. sec. 3631, which makes it a federal crime for any person to use force or the threat of force willfully to injure, intimidate, or interfere with, or attempt to injure, intimidate or interfere with any person because of his or her race, color, religion, sex or handicap, and because he or she is exercising federally protected housing rights. This statute is used, for example, to prosecute cross-burnings and other racially-motivated threats and violence directed at people in their homes.

(e)   Civil Rights Act of 1968. One of the statutes promulgated under this Act was 18 U.S.C. sec. 245, a criminal statute which, inter alia, prohibits any person from using force or willful threats to injure, intimidate, or interfere with, or attempt to injure, intimidate or interfere with any person because of his or her race, color, religion or national origin, and because he or she is engaging in certain federally protected rights, including rights related to education, employment, and the use of public facilities and establishments which serve the public.

(f)   Protection of Religious Property. Passed in 1988, and amended in 1996, 18 U.S.C. section 247 makes it a crime to deface, damage or destroy religious property because of the race, color, or ethnic characteristics of any individual associated with that property. This statute has been used, for example, to prosecute racially-motivated church arson, and the painting of anti-Semitic graffiti on and within a Jewish synagogue.

(g)   American Indian Religious Freedom Act, 42 U.S.C. sec. 1996. Enacted in 1978, then amended in 1996, this Act resolves that it shall be the policy of the United States to protect and preserve for the American Indian, Eskimo, Aleut and Native Hawaiian the inherent right to freedom to believe, express and exercise their traditional religions, including, inter alia, access to religious sites, use and possession of sacred objects and freedom to worship through ceremonial and traditional rites. Federal agencies are directed to evaluate their policies and procedures to determine if changes are needed to ensure that such rights and freedoms are not disrupted by agency practices. The courts have interpreted this act to require that the views of Indian leaders be obtained and considered when a proposed land use might conflict with traditional Indian religious beliefs or practices, and that unnecessary interference with Indian religious practices be avoided during project implementation.

(h)   Protection of Traditional Rights in American Samoa, 48 U.S.C. sec. 1661(a). In 1929 the Congress accepted and ratified the cessions of Tutuila and Aunu'u (1900) and Manu'a (1904) by the islands' traditional leaders and thereby confirmed that the Federal government would "respect and protect the individual rights of all people dwelling in Tutuila and Aunu'u to their lands and other property" and "no[t] discriminat[e] in the suffrages and political privileges between the present residents of said Islands [Manu'a] and citizens of the United States dwelling therein, and also [recognize] . . . the rights of . . . all people concerning their property according to their customs."

(i)   Equal Credit Opportunity Act, 15 U.S.C. sec. 1691 et seq. The Equal Credit Opportunity Act makes it unlawful for any creditor to discriminate in a credit transaction on the basis of race, color, religion, national origin, sex, marital status, age, or source of income (e.g., public benefits). Enforcement has focused on all aspects of the lending process from marketing to underwriting and pricing. For example, in 1997 the U.S. Department of Justice filed and settled a case alleging that Albank of New York engaged in so-called "redlining" by refusing to take mortgage loans from areas with significant minority populations. The settlement included an agreement by the bank to provide $55 million dollars at below market rates to previously redlined areas. Cases have been brought on behalf of Blacks, Hispanics, Native Americans, women and the elderly both in major metropolitan areas such as Boston and Los Angeles and in less populated areas such as Mississippi and South Dakota.

(j)   Violent Crime Control and Law Enforcement Act of 1994. The Violent Crime Control and Law Enforcement Act of 1994 includes a provision, 42 U.S.C. sec. 14141, that authorizes the Department of Justice to file suit to enjoin a pattern or practice of unconstitutional or unlawful conduct by a state or local law enforcement agency. Misconduct that may be addressed includes discriminatory police practices, use of excessive force, false arrests, and improper searches and seizures.

(k)   Anti-discrimination Provision of the Immigration and Nationality Act (INA), 8 U.S.C. sec. 1324b. This law was enacted in 1986 in response to concerns that employers, faced with sanctions against knowingly hiring unauthorized immigrants, would refuse to hire people they perceived to be foreign based on their accent or appearance. The law prohibits citizenship status and national origin discrimination with respect to hiring, firing, or referral or recruitment for a fee. The law also prohibits unfair documentary practices with respect to employment eligibility verification. All U.S. citizens and nationals and work-authorized immigrants are protected from national origin discrimination and unfair documentary practices. U.S. citizens and nationals, permanent residents, asylees, refugees, and temporary residents are protected from citizenship status discrimination

(l)   Youth Conservation Corps Act of 1970, 16 U.S.C. sec. 1704. This Act requires assurances of nondiscrimination in employment within the State Youth Conservation Corps in order for states to receive funds to cover Youth Conservation Corps projects.

(m)   Emergency Insured Student Loan Act of 1969, 20 U.S.C. sec. 1078(c)(2)(F). This act requires adequate assurances that the loan guaranty agency will not engage in any pattern or practice which results in a denial of a borrower's access to loans under this part because of the borrower's race, sex, color, religion, national origin, age, disabled status, income, attendance at a particular eligible institution within the area served by the guaranty agency, length of the borrower's educational program, or the borrower's academic year in school.

(n)   Higher Education Act of 1965, 20 U.S.C. sec. 1011 et seq. This law provides funds to higher education institutions and prohibits the schools from using these funds in programs or contracts with discriminatory provisions barring students on the basis of race, national origin, sex, or religion. Through subsequent amendments, particularly those made in 1992 and in 1998, the Act has added programs which provide insurance assistance to historically Black colleges and universities, Hispanic serving institutions, and tribal colleges, and which encourage youth from disadvantaged backgrounds to gain early awareness and readiness for post-secondary education, e.g. through the "Gear-Up" program, which funds partnerships of high-poverty middle schools, colleges and universities, community organizations, and businesses.

(o)   Bilingual Education Act of 1967, 20 U.S.C. sec. 7401 et seq. This statute was enacted to ensure equal educational opportunities for all children and youth, through developing and funding programs to assist limited-English proficient children meet the same standards for academic performance expected of all children.

(p)   The Equal Educational Opportunities Act of 1974, 20 U.S.C. sec. 1703. This law requires the provision of equal educational opportunities in all public schools, whether or not they are federally funded, and it prohibits discrimination on the basis of race, national origin, color, or sex; including the failure to take appropriate action to overcome language barriers that impede equal participation in instructional programs.

(q)   Elementary and Secondary Education Act of 1965, 20 U.S.C. sec. 6301 et seq. This Act provides federal aid to elementary and secondary schools, reinforcing the civil rights protections included in the 1964 Civil Rights Act. In particular, it provides for services to meet the special education needs of educationally deprived children, especially those children from low-income families.

(r)   Federal Family Education Loan Program, 20 U.S.C. sec. 1087-1(e)(3). This Act provides special allowance payments for loans financed by proceeds of tax-exempt obligations. It prohibits denial of a borrower's access to loans under this part because of the borrower's race, sex, color, religion, national origin, age, handicapped status, income, attendance at a particular eligible institution, length of the borrower's educational program, or the borrower's academic year in school.

(s)   Improving America's Schools Act of 1994, 20 U.S.C. sec. 7502(b)(4). This Act applies to any federally assisted education program. It prohibits exclusion of students on the bases of surname or language-minority status. This Act also made far-reaching changes in the Elementary and Secondary Education Act to enable schools to provide opportunities for children to meet challenging State content and performance standards.

(t)   Alaska Natural Gas Transportation Act of 1976, 15 U.S.C. sec. 719o. This Act provides funding for delivery of Alaska natural gas. It requires implementation of affirmative action policies to prevent discrimination on the basis of race, color, national origin, sex or religion in the issuance of certificates, permits, rights-of-way, leases, or other authorizations under this Act.

(u)   Federal Energy Administration Act of 1974, 15 U.S.C. sec. 775. This Act also addresses funding for the delivery of Alaska natural gas. It requires implementation of affirmative action policies to prevent discrimination in programs given certificates, permits, right-of-ways, lease, or other authorizations under this Act. It prohibits discrimination based on race, color, national origin, sex, or religion.

(v)   Federal Non-nuclear Energy Research and Development Act of 1974, 42 U.S.C. sec. 5919(v). This Act provides funds for developing new non-nuclear energy options. It prohibits discrimination based on race, color, national origin, sex, or religion.

(w)   Energy Conservation in Existing Buildings Act of 1976, 42 U.S.C. sec. 6870. This Act provides weatherization assistance for low-income persons. It prohibits discrimination based on race, color, national origin, sex, or any other factor specified in any federal law prohibiting discrimination.

(x)   Violent Crime Control and Law Enforcement Act of 1994, 31 U.S.C. sec. 6711. This Act provides funding for crime prevention through education treatment, substance abuse or job programs. It prohibits discrimination based on race, color, national origin, sex, religion, age, and disability.

(y)   Housing and Community Development Act of 1974 (Title I), 42 U.S.C. sec. 5309. This Act authorizes the Community Development Block Grant. It prohibits discrimination based on race, color, national origin, sex, religion, age, and disability.

(z)   Home Investment Partnerships Act/National Affordable Housing Act of 1975, 42 U.S.C. sec. 12832. This Act provides funding to increase affordable housing (including rental housing) for very low-income Americans. It prohibits discrimination based on race, color, national origin, sex, religion, age, and disability.

(aa)   Mining and Mineral Resources Institutes Act of 1984, 30 U.S.C. sec. 1222. This Act sets out recommendations regarding funding for mining and mineral resources research institutes. The Act stipulates that funding is to be provided without regard to, or on the basis of, race, sex or religion.

(bb)   Trans-Alaska Pipeline Authorization Act of 1973, 43 U.S.C. sec. 1651(note). This Act provided funds for the construction of the Trans-Alaska Pipeline. It requires the implementation of affirmative action policies to prevent discrimination on the bases of race, color, national origin, sex, and religion in the issuance of certificates, permits, rights-of-way, leases or other authorizations under the Act.

(cc)   Federal Land Policy and Management Act of 1976, 43 U.S.C. sec. 1747(10). This Act provides loans to states to relieve social/economic impacts from certain mining. It prohibits discrimination on the bases of race, color, national origin, sex, and religion.

(dd)   Outer Continental Shelf Lands Act Amendments, 43 U.S.C. sec. 1863. This Act provides funds under the Outer Continental Shelf Lands Act and prohibits discrimination on the bases of race, color, national origin, sex, and religion.

(ee)   48 U.S.C. sec. 1708. This section addresses conveyances of certain submerged land of U.S. territories and prohibits discrimination on the bases of race, color, national origin, sex, religion and ancestry in making such conveyances.

(ff)   Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. sec. 3789d. This Act provides funding for state and local justice system improvements. It prohibits discrimination on the bases of race, color, national origin, sex, and religion.

(gg)   Juvenile Justice and Delinquency Prevention Act of 1974, 42 U.S.C. sec. 5672. This Act, enacted to provide federal assistance to juvenile justice programs nationwide, incorporates the non-discrimination provisions of 42 U.S.C. sec. 3789d, which prohibit discrimination on the bases of race, color, national origin, sex, and religion.

(hh)   Justice Assistance Act of 1984, 42 U.S.C. sec. 10504. This Act provides assistance for emergency law enforcement and incorporates non-discrimination provisions at 42 U.S.C. sec. 3789d, which prohibit discrimination on the bases of race, color, national origin, sex, and religion.

(ii)   Victims of Crime Act of 1984, 42 U.S.C. sec. 10604. This Act provides assistance for emergency law enforcement and incorporates non-discrimination provisions at 42 U.S.C. sec. 3789d which prohibit discrimination on the bases of race, color, national origin, sex, and religion.

(jj)   Workforce Investment Act of 1998, 29 U.S.C. sec. 2938. This Act provides funding for employment, training, literacy, and vocational rehabilitation programs. It prohibits discrimination on the bases of race, color, national origin, sex, religion, age, disability, and political affiliation or belief.

(kk)   Foreign Assistance Act of 1961, 22 U.S.C. sec. 2314(g). This Act provides for foreign assistance. It prohibits discrimination on the basis of race, national origin, sex, or religion against U.S. persons participating in the furnishing of this assistance.

(ll)   Federal-Aid Highway Act of 1968, 23 U.S.C. sec. 140. This Act provides employment assurances for the receipt of funds for the federal-aid highway systems. It prohibits discrimination on the basis of race, color, national origin, sex, or religion.

(mm)   Federal Transit Act, 49 U.S.C. sec. 5332. This Act provides funds for mass transportation programs and prohibits discrimination on the basis of race, color, national origin, sex, religion, or age.

(nn)   Airport and Airway Improvement Act, 49 U.S.C. sec. 47123. This Act provides funds for airport and airway improvements and prohibits discrimination on the basis of race, color, national origin, sex, or religion.

(oo)   Domestic Volunteer Service/Volunteers in Service to America Act of 1973, 42 U.S.C. sec. 5057. This Act provides funds to foster and expand voluntary citizen service in communities throughout the nation in activities to help the disadvantaged. It prohibits discrimination on the basis of race, color, national origin, sex, religion, age, political affiliation, or disability.

(pp)   National and Community Service Act of 1990, 42 U.S.C. sec. 12635. This Act provides federal assistance for national service as job or education training and prohibits discrimination on the basis of race, color, national origin, sex, religion, age, disability, or political affiliation.

(qq)   General Education Provisions Act, 20 U.S.C. sec. 1228a. This statute directs the Secretary of Education to require an applicant for assistance under an applicable program administered by the Department to describe in the application the steps the applicant proposes to take to ensure equitable access to, and equitable participation in, the project or activity to be conducted with such assistance by addressing the special needs of students, teachers, and other program beneficiaries in order to overcome barriers to equitable participation, including barriers based on gender, race, color, national origin, disability and age.

 

 

 

 

3. Federal Action and Racial Discrimination

                          

 

The President has executive authority to direct the activities of federal agencies in furtherance of the Constitution and laws of the United States. In exercise of this authority, the President has issued executive orders that prohibit discrimination in federal programs and that encourage diversity in the federal workplace to the extent that such actions are consistent with federal law. For example:

 
  Executive Order 11246, signed on September 24, 1965, prohibits federal contractors and subcontractors from discriminating in employment, and requires that they undertake affirmative action to ensure equal employment opportunity without regard to race, color, sex, religion or national origin. Generally, all contractors and subcontractors holding non-exempt federal and federally assisted contracts and subcontracts worth more than $10,000 must comply with this Order.

 

  To ensure that federal funding agencies effectively and consistently enforce their responsibilities for ensuring their recipients do not discriminate, in 1980 President Carter issued Executive Order 12250. Among other things, this order delegates to the Attorney General the President's authority to approve regulations under Title VI of the 1964 Civil Rights Act (prohibiting discrimination on the basis of race, color, and national origin by recipients of federal financial assistance). In addition, the Executive Order charges the Attorney General with leadership to provide for the consistent and effective implementation of various laws prohibiting discriminatory practices in federal programs and programs receiving federal financial assistance.

 

  On January 17, 1994, in Executive Order 12892, President Clinton introduced new Fair Housing initiatives in federal programs to ensure that all federal policies and programs across all agencies support the fair housing and equal opportunity goals of the Fair Housing Act. The purpose of this order was to remove all barriers to housing for lower income and minority Americans. The Secretary of Housing and Urban Development and the Attorney General, the officials with primary responsibility for the enforcement of federal fair housing laws, were assigned the task of developing and coordinating measures to carry out the purposes of the Order. In addition, the Order established an advisory council entitled the "President's Fair Housing and Urban Development Council" chaired by the Secretary of Housing and Urban Development to review the design and delivery of federal programs and activities and ensure that they support a coordinated strategy to affirmatively further fair housing.

 

  On February 11, 1994, in Executive Order 12898, President Clinton directed every federal agency to identify and consider adverse human health or environmental effects of its programs, policies, and activities on minority and low-income populations. The Order also established a working group on environmental justice comprising the heads of the major executive agencies. The working group's task was to coordinate, provide guidance and serve as a clearinghouse for the Federal agencies on their environmental justice strategies.

 

  On May 24, 1996, Executive Order 13007 was issued, calling upon federal agencies to accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners and to avoid adversely affecting the physical integrity of such sacred sites.

 

  Executive Order 13021, issued on October 21, 1996, calls upon the Federal government to ensure that tribal colleges and universities are more fully recognized as accredited institutions, have access to the opportunities afforded other institutions and have federal resources committed to them on a continuing basis. The order also, among other objectives, calls on the Federal government to promote access to high quality education opportunity for economically disadvantaged students and the preservation and revitalization of American Indian and Alaska Native languages and cultural traditions.

 

  On August 6, 1998, President Clinton issued Executive Order 13096 on American Indian and Alaska Native Education affirming the political and legal relationship of the Federal government with tribal governments and recognizing the educational and culturally related academic needs of American Indians and Alaska Native students. This Order established six goals, consistent with tribal traditions and cultures, for improving educational achievement and academic progress for American Indians and Alaska Natives. In order to achieve these goals, the Order also established, among other initiatives, an interagency task force, which was tasked with developing a comprehensive interagency plan, research agenda and policy for improving American Indian and Alaska Native educational achievement and an interagency resource guide on federal education-related programs.

 

  Executive Order 13084, Consultation and Coordination with Indian Tribal Governments, was issued on May 14, 1998, requiring federal agencies to consult with tribes when developing regulatory practices, policies, or regulations that significantly affect tribal interests. Among other things, consultation with tribes helps to ensure that federal policymakers account for the often unique interests and perspectives of tribes and their members. By doing so, it will help avoid developing policies that might discriminate against Native American interests. In addition, by affirming the Federal government's commitment to Indian tribal rights, including treaty hunting and fishing rights, the Executive Order serves an educational function that may, in turn, lessen racial tensions that sometimes confront tribal members as they seek to exercise those rights.

 

  Executive Order 13125 was signed by President Clinton on June 7, 1999 to improve the quality of life of Asian Americans and Pacific Islanders (AAPIs) through increased participation in federal programs where they are under-served. The Executive Order establishes the President's Advisory Commission on AAPIs and the White House Initiative on AAPIs. It mandates the development of an integrated federal plan to respond to the needs of this population.

 

  On June 9, 1999, President Clinton issued an Executive Memorandum requiring that the Departments of Justice, Treasury and Interior design and implement systems for collecting data by race, ethnicity, and gender relating to certain actions taken by law enforcement agents employed by these Departments. The purpose of this data collection effort is to allow the Federal government to determine whether any of its law enforcement agencies is engaged in so-called "racial profiling."
Federal agencies also have authority to adopt regulations to implement the programs they are charged with administering. In many cases, these regulations include provisions prohibiting discrimination by government agents and individuals and entities who receive services from the agency. For example, all federal assistance agencies have regulations prohibiting race discrimination by recipients of their assistance. A comprehensive listing of these regulations can be found on the web site of the Coordination and Review Section of the Civil Rights Division found at http://www.usdoj.gov/crt/cor.

 

 
4. State Anti-Discrimination Measures

                          

Most states, and many large cities, have adopted their own statutory and administrative schemes for protecting individuals from discrimination in fields actively regulated by state and local governments. For example, state constitutions and statutes typically protect individuals from discrimination in housing, employment, public accommodations, government contracting, credit transactions and education. As a result, a particular discriminatory act might well violate federal, state and local law -- each having its own sanctions. States may also provide protections which differ from or exceed the minimum requirements of federal law. Where such protections exist, state or municipal law also provides judicial or administrative remedies for victims of discrimination.

This re-enactment of similar or expanded protections at the state and local level serves several important purposes. First, this process involves a broad range of legislators at all levels of government taking positive steps toward the elimination of racial discrimination. This is important both for the specific legislative action that results, and for the increased local participation in the effort to eradicate race-based inequalities and racial intolerance. Thus, the effort to eliminate racial discrimination occurs at the most basic political level. Second, the process usually involves the creation of a state or local agency for the administrative enforcement of the protections involved. This frequently involves the appointment of a local commission with the power to investigate complaints and to enforce the legislation in question. Accordingly, enforcement offices are made available at locations closer to, and more accessible by, the affected individuals. Since local officials may more fully understand underlying issues and complexities in individual cases, adjudication of cases by them may yield better public understanding.

For example, the Florida Commission on Human Relations was established in 1969, with the enactment of the Florida Human Rights Act, for the purpose of enforcing Florida's anti-discrimination laws. The Commission is both a policy-making and community organization and an enforcer of anti-discrimination laws. The Commission is authorized to investigate and seek the resolution of discrimination complaints -- in housing, employment, public accommodations and private club membership -- through administrative and legal proceedings.

In Alaska, the State Commission for Human Rights, is responsible for enforcing the Alaska Human Rights law, which makes it unlawful to discriminate in employment, housing, public accommodations, finance and credit, and state political practices in all cases on the basis of race, national origin, religion, sex, color, and physical or mental disability, and in some cases, on the basis of age, pregnancy, marital status, parenthood, and changes in marital status.

Moreover, many municipalities have established agencies to monitor and enforce anti-discrimination legislation. In San Francisco, the Employment, Housing and Public Accommodations Division of that city's Human Rights Commission implements the San Francisco Charter and Administrative Code, which prohibits discrimination in employment, housing, and public accommodations. Division staff investigate and mediate complaints involving allegations of discrimination and non-compliance, as well as prepare and promote community programs aimed at reducing or eliminating inequalities and educate the community regarding the principles of equal opportunity. With regard to equal employment, there are 121 designated Fair Employment Practice agencies created by state and local jurisdictions which investigate charges of race discrimination under work-sharing agreements with the EEOC pursuant to Section 706 of the Civil Rights Act of 1964. These are identified at 29 Code of Federal Regulations Part 1601.74. There are also a number of Tribal Employment Rights organizations which investigate charges of discrimination on or near Indian reservations pursuant to work-sharing agreements with the EEOC. Examples of state laws prohibiting race discrimination in employment are: the California Fair Employment and Housing Act, Cal. Gov. Code ¤ 12940; the New York Human Rights Law, N.Y. Exec. Law ¤ 296; and the Texas Commission on Human Rights Act, Tex. CA Labor ¤ 21.051.

In subsequent reports to the Committee, the United States intends to discuss in greater detail state and local measures taken to prevent racism and racial discrimination. As with protections at the federal level, these measures are complex and comprehensive, therefore requiring a more detailed discussion than was possible here.

 

 

 

 

B. U.S. Reservations, Understandings and Declarations
 

 

To ensure that U.S. law and policy were consonant with the obligations that it would assume under the Convention, the United States entered certain reservations, understandings and declarations to the Convention at the time of ratification. These related, inter alia, to: (a) the Convention's prohibitions concerning advocacy and incitement, which to a certain extent are more restrictive than U.S. constitutional guarantees of free expression and association, (b) the Convention's requirements to restrict the activities of private persons and non-governmental entities, which in some instances lie beyond the reach of existing U.S. law, and (c) the express extension of the Convention's restrictions to all levels of political organization, which implicates the delicate relationship between the state and Federal governments in the U.S. political system. While these differences were primarily ones of approach rather than substance, each nonetheless required clarification in the context of U.S. ratification of the Convention.

In making these clarifications, the United States took particular note of Article 20, which precludes reservations which are "incompatible with the object and purpose of the Convention" or "the effect of which would inhibit the operation of any of the bodies established by the Convention." The United States believes its reservations, understandings and declarations, which are an essential element of its consent to be bound by this instrument, are compatible with its object and purpose; they also do not inhibit the operation of any bodies established by the Convention. The United States fully supports the goals of the Convention. In any event, paragraph 2 of Article 20 provides an authoritative method of determining whether any reservation is incompatible or inhibitive in relation to this Convention; namely, formal objection thereto by at least two-thirds of the States Parties to the Convention. None of the conditions imposed upon U.S. ratification of this Convention have been objected to in that manner.

 
 

 

1. Freedom of Speech

 

 

 

Article 4 of the Convention expressly requires States Parties to condemn all propaganda and all organizations based on ideas or theories of superiority of one race or group of persons of one color or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form. States Parties are further required to take immediate and positive measures to "eradicate all incitement to, or acts of, such discrimination," inter alia, by (a) punishing the dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, and acts of violence or incitement to acts of violence, as well as the provision of assistance to racist activities, including financing; (b) prohibiting organizations and activities which promote and incite racial discrimination, including participation in such organizations and activities; and (c) preventing public authorities or institutions, whether national or local, from promoting or inciting racial discrimination.

Article 7 imposes an undertaking on States Parties to take measures to combat prejudice and promote tolerance in the fields of teaching, education, culture and information. These provisions reflect a widely held view that penalizing and prohibiting the dissemination of ideas based on racial superiority are central elements in the international struggle against racial discrimination. The Committee itself has given a broad interpretation to Article 4, in particular emphasizing in General Recommendations I (1972) and VII (1985) that the mandatory requirements of Article 4(a) and (b), are compatible with the rights of freedom of opinion and expression. Many other States Parties to the Convention have enacted and enforced measures to give effect to these requirements.

As a matter of national policy, the U.S. government has long condemned racial discrimination, and it engages in many activities both to combat prejudices leading to racial discrimination and to promote tolerance, understanding and friendship among national, racial and ethnic groups. Such programs include those under the authority of Title VI of the Civil Rights Act, the Fair Housing Act, the Bilingual Education Act, the Mutual Educational and Cultural Exchange Act of 1961, the International Education Act (Title VI of the HEA of 1965), and the National Foundation on the Arts and the Humanities Act of 1965. Also, under U.S. law, federal tax money cannot be used to support private entities (such as schools) that practice racial or ethnic discrimination. Further, the Hate Crimes Statistics Act of 1990 mandates collection by the Justice Department of data on crimes motivated by, inter alia, race.

However, American citizens applaud the fact that the First Amendment to the U.S. Constitution sharply curtails the government's ability to restrict or prohibit the expression or advocacy of certain ideas, however objectionable. Under the First Amendment, opinions and speech are protected without regard to content. This is a cornerstone of American society that has as much resonance with regard to modern forms of communication like the Internet as with more traditional modes of communication. Certain types of speech, intended and likely to cause imminent violence, may constitutionally be restricted, so long as the restriction is not undertaken with regard to the speech's content. For example, several federal statutes punish "hate crimes," i.e., acts of violence or intimidation motivated by racial, ethnic or religious hatred and intended to interfere with the participation of individuals in certain activities such as employment, housing, public accommodation, use of public facilities, and the free exercise of religion. See, e.g., 18 U.S.C. sec. 241, 245, 247; 42 U.S.C. sec. 3631. An increasing number of state statutes are similarly addressed to hate crimes, and while they too are constrained by constitutional protections, the U.S. Supreme Court has recently determined that bias-inspired criminal conduct may be singled out for especially severe punishment under state law. In two recent cases, the U.S. Supreme Court has addressed first amendment issues in the context of hate crimes legislation. In R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), the municipal ordinance in question made it a misdemeanor to "place on public or private property a symbol, object, appellation, characterization, or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." The Court held that the statute unconstitutionally restricted freedom of speech on the basis of its content. Notably, the Court did not find it unconstitutional to criminalize "hate speech" per se. Instead, a majority of the Court held that a jurisdiction may not select only some kinds of hate speech to criminalize while leaving other kinds unrestricted.

Then, in Wisconsin v. Mitchell, 508 U.S. 476 (1993), the Court addressed the issue of enhanced penalties for crimes motivated by prejudice. Under the relevant state law, an individual who was convicted of aggravated assault (an offense which normally carried a penalty of two years imprisonment) was sentenced to an additional four years imprisonment because his crime had been racially motivated.

The Wisconsin Supreme Court had found the statute to be in violation of the First Amendment, as interpreted by the U.S. Supreme Court in R.A.V. v. City of St. Paul, because it singled out the defendant's biased thoughts and penalized him based on the content of those thoughts. On appeal, the U.S. Supreme Court reversed the judgment and upheld the statute as Constitutional. In a unanimous opinion, the Court held that while the St. Paul ordinance had (impermissibly) targeted expression, the Wisconsin enhanced-penalty statute was aimed at unprotected (indeed, criminal) conduct.

In subsequent decisions, federal and state courts have followed this distinction, generally upholding statutes which punish specific behavior motivated by bias. For example, a federal appellate court sustained the criminal prosecution under federal civil rights laws of a defendant who had burned a cross on a Black family's lawn, distinguishing that act done with intent to intimidate from similar acts meant to make a political statement. United States v. Stewart, 65 F.3d 918 (11th Cir. 1995), cert. denied sub nom. Daniel v. United States, 516 U.S. 1134. In T.B.D. v. Florida, 656 So.2d 479 (Fla. 1995), cert. denied, 516 U.S. 1145 (1996), Florida's highest court upheld a statute making it a misdemeanor to place a "a burning or flaming cross, real or simulated" on the property of another without permission.

During the drafting of Article 4, the U.S. delegation expressly noted that it posed First Amendment difficulties, and upon signing the Convention in 1966, the United States made a declaration to the effect that it would not accept any requirement thereunder to adopt legislation or take other actions incompatible with the U.S. Constitution. A number of other States Parties have conditioned their acceptance of Article 4 by reference to the need to protect the freedoms of opinion, expression, association and assembly recognized in the Universal Declaration of Human Rights.

In becoming a party to the International Covenant on Civil and Political Rights in 1992, the United States faced a similar problem with respect to Article 20 of that treaty. In part because the Human Rights Committee had adopted a similarly broad interpretation of that article in its General Comment 11 (1983), the United States entered a reservation intended to make clear that the United States cannot and will not accept obligations which are inconsistent with its own Constitutional protections for free speech, expression and association. A similar reservation was therefore adopted with respect to the current Convention. It reads:

[T]he Constitution and laws of the United States contain extensive protections of individual freedom of speech, expression and association. Accordingly, the United States does not accept any obligation under this Convention, in particular under Articles 4 and 7, to restrict those rights, through the adoption of legislation or any other measures, to the extent that they are protected by the Constitution and laws of the United States.

 

 

 

2. Private Conduct

 

Given the breadth of the definition of "racial discrimination" under Article 1(1), the obligation imposed on States Parties 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) as well as Articles 3 and 5, the Convention may be viewed as imposing a requirement on a State Party 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.

a.   Fourteenth Amendment

Since the time of the Civil Rights Cases, 109 U.S. 3 (1883), the U.S. Supreme Court has consistently held that the Fourteenth Amendment does not reach purely private conduct. Thus, the Fourteenth Amendment can only be invoked to protect against conduct that is the result of "state action." The state action requirement of the Equal Protection Clause reflects a traditional recognition of the need to preserve personal freedom by circumscribing the reach of governmental intervention and regulation, even in situations where that personal freedom is exercised in a discriminatory manner.

In determining whether "state action" is present in a given case, the critical inquiry under U.S. domestic law is whether the conduct of a private party is "fairly attributable" to the state. Lugar v. Edmonson, 457 U.S. 922, 937 (1982). Under that test, mere governmental involvement with private parties is often insufficient to trigger a finding of state action. For example, in and of itself, government licensing and regulation of private entities is not state action. Moose Lodge No. 107 v. Irvins, 407 U.S. 163 (1972) (licensing); Jackson v. Metropolitan Edison, 419 U.S. 345 (1974) (regulation). The same is true for government contracting. Blum v. Yaretsky, 457 U.S. 991 (1982). However, state employees acting under color of law are generally considered "state actors." West v. Atkins, 487 U.S. 42 (1988). In addition, the Supreme Court has held that the following constitute state action: the private performance of "public functions," Marsh v. Alabama, 326 U.S. 501 (1946); judicial enforcement of private discriminatory arrangements such as restrictive covenants on property, Shelley v. Kraemer, 334 U.S. 1 (1948); certain forms of governmental assistance or subsidies to private parties, Norwood v. Harrison, 413 U.S. 455 (1973); and state encouragement of discrimination by private parties, Reitman v. Mulkey, 387 U.S. 369 (1967).

b.   Thirteenth Amendment

On the other hand, the Thirteenth Amendment's prohibition against slavery and involuntary servitude encompasses both governmental and private action. Civil Rights Cases, 109 U.S. 3, 20 (1883). The U.S. Supreme Court has held that Congress may regulate private conduct under sec. 2 of the Thirteenth Amendment, which provides that "Congress shall have the power to enforce this article by appropriate legislation." Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). Such power includes determining what constitutes the "badges and incidents of slavery and the authority to translate that determination into effective legislation." See also United States v. Kozminski, 487 U.S. 931, 942 (1988) (discussing Thirteenth Amendment right to be free from involuntary servitude).

Although Jones could be read as authorizing Congress to regulate a broad array of harms on the ground that they were a form of servitude and slavery, the Court has not had the opportunity to define the outer limits of Jones. The Court has intimated, however, that "some private discrimination . . . in certain circumstances" is subject to legislation under Section 2 of the Thirteenth Amendment. See Norwood v. Harrison, 413 U.S. 455, 470 (1973). For instance, the Reconstruction Era civil rights statutes discussed above (42 U.S.C. sec. 1981, 1982 and 1983, which create a cause of action against any person who, acting under color of state law, abridges rights created by the Constitution), have been used to prohibit private actors from engaging in racial discrimination in a variety of activities, including the sale or rental of private property, see Jones, 392 U.S. at 413; the assignment of a lease, see Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969); and the grant of membership in a community swimming pool, see Tillman v. Wheaton-Haven Recreation Ass'n. Inc., 410 U.S. 431 (1973); the making and enforcement of private contracts, see Patterson v. McLean Credit Union, 491 U.S. 164, 272 (1989); see also Runyon v. McCrary, 427 U.S. 160 (1976) (reaching refusal of private school to admit Black students). Finally, section 1985(3) has been applied to some private conspiracies. Compare Bray v. Alexandria Women's Health Clinic, 506 U.S. 263 (1993) (demonstration against abortions clinics was not within the scope of statute) with Griffin v. Breckenridge, 403 U.S. 88 (1971) (conspiracy to deprive Blacks of right of interstate travel was within the reach of statute).

c.   Commerce and Spending Powers

In addition to the Thirteenth Amendment, Congress may regulate private conduct through the Commerce and Spending powers it possesses under Article I of the Constitution. For example, it was under the Commerce Clause that Congress passed Title II and Title VII of the 1964 Civil Rights Act, which prohibit private entities from discriminating in public accommodations and employment. See Katzenbach v. McClung, 379 U.S. 294 (1964). The Fair Housing Act is similarly grounded in the Commerce Clause. Further, it was under Congress' Spending Power as well as under its authority under Section 5 of the Fourteenth Amendment, that Congress passed Title VI of the 1964 Civil Rights Act, which prohibits discrimination by public and private institutions that receive federal funds. Lau v. Nichols, 414 U.S. 563 (1974).

Arguably, the reference to "public life" in the definition of "racial discrimination" in Article 1(1) of the present Convention might be read to limit the reach of its prohibitions to actions and conduct involving some measure of governmental involvement or "state action." The negotiating history of the Convention is far from clear on this point, however, and it is not possible to say with certainty that the term "public life" as contemplated by the drafters is synonymous with the permissible sphere of governmental regulation under U.S. law. Moreover, the Committee appears to have taken an expansive view in this regard, finding in the Convention a prohibition against racial discrimination perpetuated by any person or group against another. Accordingly, some forms of private individual or organizational conduct that are not now subject to governmental regulation under U.S. law could well be found within the sphere of "public life" as that term is interpreted under the Convention.

Accordingly, it was appropriate to indicate clearly, through a formal reservation, that U.S. undertakings in this regard 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.

 

 

 

 

3. Dispute Settlement

 

 

In accordance with its long-standing policy, the United States also conditioned its adherence to the Convention upon a reservation requiring its consent to the exercise of the jurisdiction of the International Court of Justice over any dispute that might arise between it and another State Party. The text of this reservation is identical to those recently taken upon ratification of other treaties, including the ICCPR:

[W]ith reference to Article 22 of the Convention, before any dispute to which the United States is a party may be submitted to the jurisdiction of the International Court of Justice under this article, the specific consent of the United States is required in each case.

 

 

 

4. Federalism

 

 

Given its Constitutional roots and its embodiment in the extensive statutory provisions enacted by Congress over the decades, federal anti-discrimination law is pervasive and reaches federal, state and local levels of government. Where Constitutionally permissible, it provides the basis for broad regulation of racially-discriminatory conduct at the private level. Nonetheless, because the Congress is a legislature of limited jurisdiction, it must find authority for its statutes somewhere in the U.S. Constitution, e.g., through Section 5 of the Fourteenth Amendment, the Commerce Clause or the Spending Clauses. In those limited circumstances where the Constitution does not permit the application of federal anti-discrimination laws, state and local governments have some authority to act. Under the Tenth Amendment to the Constitution, "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Thus, the state and local governments retain a fairly substantial range of actions within which to regulate or prohibit discriminatory actions. In some instances, state and local governments have exercised their inherent authority by adopting statutes and administrative regulations providing powerful and effective protections against, and remedies for, private discrimination based on race, color, ethnicity and national origin. Indeed, in some states, courts have interpreted their state constitutions to provide even broader protections against discrimination than under federal law.

Because the fundamental requirements of the Convention are respected and complied with at all levels of government, the United States concluded there was no need to preempt these state and local initiatives or to federalize the entire range of anti-discriminatory actions through the exercise of the Constitutional treaty power. Indeed, there is no need for implementing legislation providing the Federal government with a cause of action against the constituent states to ensure that states fulfill the obligations of the Convention. Subject to the constraints imposed by our federal system, the Federal government already has the authority under the Constitution and the federal civil rights laws to take action against states to enforce the matters covered by the Convention.

It is important to stress that this understanding is not a reservation. It does not condition or limit the international obligations of the United States. Nor can it serve as an excuse for any failure to comply with those obligations as a matter of domestic or international law. Instead, it addresses a specific and sensitive aspect of the fundamental governmental structure of the United States. As an aspect of the modality of implementation in domestic law, this understanding is entirely within the discretion of the United States as a State Party and contravenes no provision of the Convention.

In ratifying the International Covenant on Civil and Political Rights in 1992, the United States addressed this issue through adoption of an interpretive understanding, the effect of which was to clarify that the United States will carry out its obligations in a manner consistent with the federal nature of its form of government. A similar understanding was adopted for the Torture Convention as well as for the current Convention:

 

[T]he United States understands that this Convention shall be implemented by the Federal government to the extent that it exercises jurisdiction over the matters covered therein, and otherwise by the state and local governments. To the extent that state and local governments exercise jurisdiction over such matters, the Federal government shall, as necessary, take appropriate measures to ensure the fulfillment of this Convention.

 

 

 

 

 

5. Non Self-executing Treaty

 

 

In ratifying the Convention, the United States made the following declaration:

[T]he United States declares that the provisions of the Convention are not self-executing.
This declaration has no effect on the international obligations of the United States or on its relations with States Parties. However, it does have the effect of precluding the assertion of rights by private parties based on the Convention in litigation in U.S. courts. In considering ratification of previous human rights treaties, in particular the U.N. Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (1994) and the International Covenant on Civil and Political Rights (1992), both the Executive Branch and the Senate have considered it prudent to declare that those treaties do not create new or independently enforceable private rights in U.S. courts. However, this declaration does not affect the authority of the Federal government to enforce the obligations that the United States has assumed under the Convention through administrative or judicial action.

As was the case with prior human rights treaties, existing U.S. law provides protections and remedies sufficient to satisfy the requirements of the present Convention. Moreover, federal, state and local laws already provide a comprehensive basis for challenging discriminatory statutes, regulations and other governmental actions in court, as well as certain forms of discriminatory conduct by private actors. Given the adequacy of the provisions already present in U.S. law, there was no discernible need for the establishment of additional causes of action or new avenues of litigation in order to guarantee compliance with the essential obligations assumed by the United States under the Convention.

This declaration has frequently been misconstrued and misinterpreted. Declaring the Convention to be non-self-executing in no way lessens the obligation of the United States to comply with its provisions as a matter of international law. Neither does it contravene any provision of the treaty or restrict the enjoyment of any right guaranteed by U.S. obligations under the Convention. There is, of course, no requirement in the Convention that States Parties make it "self executing" in their domestic law, or that private parties be afforded a specific cause of action in domestic courts on the basis of the Convention itself. The drafters quite properly left the question of implementation to the domestic laws of each State Party.

The United States is aware of the Committee's preference for the direct inclusion of the Convention into the domestic law of States Parties. Some non-governmental advocacy groups in the United States would also prefer that human rights treaties be made "self-executing" in order to serve as vehicles for litigation. The declaration reflects a different choice, one in favor of retaining existing remedies for private parties

 

 

 

C.  Specific Articles

 

Article 1 - Racial Discrimination

 

 

 

A preliminary word is necessary about the Convention's definition of "racial discrimination." Although the definition included in Article 1(1) contains two specific terms ("descent" and "ethnic origin") not typically used in federal civil rights legislation and practice, there is no indication in the negotiating history of the Convention or in the Committee's subsequent interpretation that those terms encompass characteristics which are not already subsumed in the terms "race," "color," and "national origin" as these 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.

 

 

 

 

 

Article 2 Eliminate Racial Discrimination

 

 

 

Under Article 2(1), States Parties to the Convention condemn and undertake to eliminate racial discrimination in all its forms and by all appropriate means. To this end, this article specifies a number of specific undertakings.

 

 

 

Art. 2(1)a Prohibition of Discrimination

 

 

(a)   As required by Article 2(1)(a), racial discrimination by the government is prohibited throughout the United States. The Fifth and Fourteenth Amendments guarantee that no public authority may engage in an 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. As indicated above, U.S. law extends this prohibition to private organizations, institutions and employers under many circumstances.

 

 

 

 

 

Art 2(1)b No Support or Defense of Discrimination

 

(b)   Under Article 2(1)(b), States Parties undertake not to sponsor, defend or support racial discrimination by any person. Such conduct is strictly prohibited in the United States. The U.S. Constitution prohibits discrimination on the basis of race or other personal characteristics at every level of government (federal, state, and local). Several federal statutes, including Title VI of the Civil Rights Act of 1964, prohibit discrimination by state or local governments, or private entities, that receive federal financial assistance. Not only does the U.S. government not sponsor, defend, or support discrimination, but the Federal government is actively engaged in the enforcement of anti-discrimination statutes against public and private entities in the areas of discrimination in employment, voting, housing and education.

 

 

 

 
 

 

 

Art. 2(1)c Take Effective Measures to Eliminate

 

 

(c)   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." Article 2(1)(c) also requires States Parties to "amend, rescind or nullify any laws and regulations" that have such effects.

The United States satisfies the policy review obligation of Article 2(1)(c) through this nation's legislative and administrative process, as well as through court challenges brought by governmental and private litigants. U.S. law is under continuous legislative and administrative revision and judicial review.

 

 

 

 

Art 2(1)d Prohibit and Bring to an End Discrimination

 

 
(d)   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, governmental policy at all levels reflects this undertaking, and there are many different mechanisms, including litigation and legislation, through which this important goal is being achieved by the United States.

As discussed in the context of the United States' reservations, understandings and declarations above, there are important constitutional limits on the permissible reach of governmental regulation in the United States. For the reasons articulated in that discussion above, the United States conditioned its ratification on a formal reservation stating that, to the extent the Convention calls for a broader regulation of private conduct than permissible under U.S. law, 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.

 

 

 

 

Art 2(1)e Encourage Integrationist Multi-racial Organizations

 
Under Article 2(1)(e), each State Party undertakes "to encourage, when appropriate, integrationist multi-racial organizations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division."

As part of his Initiative on Race, President Clinton has taken important steps to encourage various sectors of United States society to celebrate diversity and work toward the goal of building One America by promoting racial reconciliation and encouraging racial equal opportunity for all.

For example, on July 20, 1999, President Clinton issued a call to action to the legal community to enlist their support in the fight for equal justice. Leading organizations in the United States, including the American Bar Association, the American Corporate Counsel Association, the Association of American Law Schools and the Lawyers Committee for Civil Rights, responded by forming the "Lawyers for One America." Lawyers for One America is a unique collaboration with a mission to promote racial justice through increased pro bono legal service and diversity initiatives within the legal community.

On March 9, 2000, President Clinton met with a broad group of American religious leaders to highlight new commitments and programs they have pledged to undertake within the faith community to ensure that the nation's religious organizations are doing their part to expand diversity, end racism and promote racial reconciliation. At the meeting, the National Conference for Community and Justice (NCCJ) pledged to hold a national forum of faith leaders to share information on their efforts and to seek commitments from other faith leaders to address race issues.

On April 6, 2000, President Clinton met with the leaders of the nation's largest corporations to challenge them to promote diversity and make commitments to expand economic opportunities to racial minorities and close the opportunity gap that exists in the United States. At the meeting, several corporate leaders pledged to convene dialogues on racial issues, workplace diversity and employment equity during the next year. In addition, twenty-five leading companies pledged to spend $250 million, $1 million per year for the next ten years, to expand diversity in the high technology workforce.

Also inspired by President Clinton's leadership on race relations, numerous cities in the United States, like Indianapolis, Indiana and Grand Rapids, Michigan, have held or are planning to hold day-long "race summits" that bring together people of diverse backgrounds to hold dialogues on racial reconciliation.

The Department of Justice promotes the goals of Article 2(1)(e) through active involvement in communities beset by either actual or potential destructive racial conflict. The Department's Community Relations Service sends experienced mediators to assist local communities in resolving and preventing racial and ethic conflict, violence or civil disorder. For over thirty years, the Department has played an enormously positive role in conflict prevention at the local level.

The Equal Employment Opportunity Commission (EEOC) seeks to eliminate racial discrimination through education and prevention, and by publishing policy guidance statements, compliance manuals and other educational materials. The EEOC also regularly sponsors nationwide technical assistance program seminars, and makes presentations to employee and employer interest groups. Within the past two years, the EEOC has developed a comprehensive website http://www.eeoc.gov and launched a mediation program in each of its district offices, with the goal of resolving charges of discrimination while preserving working relationships.

 

 

 

 

 

 

Art 2(2) Special Measures

 

 
Special Measures. Article 2(2) provides that, when circumstances so warrant, States Parties shall take "special and concrete measures" for the "adequate development and protection of certain racial groups or persons belonging to them for the purpose of guaranteeing to them the full and equal enjoyment of human rights and fundamental freedoms." Article 1(4) specifically excludes from the definition of "racial discrimination" "[s]pecial measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection" in order to provide equal enjoyment of human rights and fundamental freedoms. Such measures may not, however, lead to the maintenance of "unequal or separate rights for different racial groups" or "be continued after the objectives for which they were taken have been achieved."

Together, Article 1(4) and Article 2(2) permit, but do not require, States Parties to adopt race-based affirmative action programs without violating the Convention. Deciding when such measures are in fact warranted is left to the discretion of each State Party.

At the federal level, the United States has been pursuing such "special measures" for many years. For much of this century, racial and ethnic minorities and women have confronted a variety of legal and social barriers to equal opportunity in the United States. Segregated, inferior schooling combined with historic economic disadvantage left many effectively barred from participating in the benefits of a growing national economy. Even after the legal barriers to equal treatment were removed, the residual economic and social effects remained.

In 1961, President John F. Kennedy issued an Executive Order (No. 10925) which used the term "affirmative action" to refer to measures designed to achieve non-discrimination in employment. Four years later, President Lyndon Johnson signed Executive Order 11246, requiring federal contractors to take affirmative action to ensure equality of employment opportunity without regard to race, religion and national origin. In 1967, the Executive Order was amended to add gender as a prohibited basis of discrimination. The most far-reaching expansion of the affirmative action approach at the federal level took place in 1969 in connection with the so-called "Philadelphia Order" concerning construction trades in Philadelphia, PA.

The concept of using affirmative action to ensure equality of opportunity was initially incorporated into federal statutory law through Title VII of the Civil Rights Act of 1964, which aimed at ending discrimination by large private employers whether or not they had government contracts.

A substantial number of existing federal ameliorative measures could be considered "special and concrete measures" for the purposes of Article 2(2). These include the array of efforts designed to promote fair employment, statutory programs requiring affirmative action in federal contracting, including sheltered corporations, race-conscious educational scholarships, and direct support for historically Black colleges and universities, Hispanic-serving institutions and Tribal colleges. Some are hortatory, such as those based in statutes encouraging recipients of federal funds to use minority-owned and women-owned banks. Others are mandatory; for instance, the Community Reinvestment Act requires federally chartered financial institutions to conduct and record efforts to reach out to under-served communities, including, but not limited to, minority communities. Still others focus on targeted outreach and training efforts; for instance, the U.S. Department of State maintains the Foreign Affairs Fellowship Program, an initiative designed to increase minority participation in the Foreign Service.

The Small Business Act requires each federal agency to set goals for contracting with "small and disadvantaged businesses." Under its so-called "Section 1207" authority, the Defense Department is permitted to provide a ten percent bid price preference and to employ reduced-competition systems when necessary to meet its "small and disadvantaged businesses" contracting goals. The Omnibus Diplomatic Security and Anti-Terrorism Act requires that a minimum of ten percent of funds appropriated for diplomatic security projects be allocated to minority business enterprises. Certain small education grant programs (e.g., those under the Patricia Roberts Harris Fellowship, 20 U.S.C. sec. 1134d-g, and the Women and Minorities in Graduate Education Program, 20 U.S.C. sec. 1134a) target minorities in graduate education. The Department of Agriculture gives preferences to "socially disadvantaged" persons in the sale of farm properties and sets aside loan funds for farmers in this group. The Department of the Treasury administers a "minority-owned bank deposit" program in which designated banks receive special consideration to act as depositary institutions holding cash for federal agencies, so long as no increased cost or risk results to the government. The Department of Transportation gives preferences to small businesses owned and controlled by socially and economically disadvantaged individuals in Department of Transportation-assisted contracts.

The Clinton Administration has placed substantial emphasis on increasing educational opportunities for minorities in the United States. For instance, the Hispanic Education Action Plan is designed to provide targeted assistance to raise the educational achievement of Hispanic students and to close the achievement gap. The Plan incorporates a number of other programs, such as the State Agency Migrant Program and "GEAR UP."

Enacted in 1998 and administered by the Department of Education, GEAR UP funds partnerships of high-poverty middle schools, colleges and universities, community organizations, and businesses. The partnerships provide tutoring, mentoring, information on college preparation and financial aid, an emphasis on core academic preparation, and, in some cases, scholarships. In its first year, GEAR UP is serving nearly 450,000 students nationwide. Over 1,000 organizations are GEAR UP partners, including colleges and universities, libraries, arts organizations, local chambers of commerce, the YMCA, Boys and Girls Clubs, Wal-Mart, Unisys, and the New York Times Education Program. In the upcoming year, GEAR UP is expected to serve over 750,000 students. 

 

 

 

 

Art 3 Condemn Racial Segregation and Apartheid

 

 
Article 3 requires States Parties to condemn racial segregation and apartheid and to undertake to prevent, prohibit and eradicate "all practices of this nature" in territories under their jurisdiction.

State-sponsored segregation and de jure discrimination has been prohibited in the United States since the enactment of the Thirteenth, Fourteenth, and Fifteenth Amendments a few years after the end of the Civil War. However, the federal courts interpreted those provisions to permit state-sponsored and private racial discrimination (so-called "separate but equal" treatment of the races) through the first half of the Twentieth Century. This interpretation was authoritatively overruled by the Supreme Court in 1954 in Brown v. Board of Education, which outlawed racial segregation in public schools and set the foundation for the elimination of segregation in all forms of public life. As discussed above, a series of Civil Rights Acts following that decision has extended the reach of this prohibition to many private relationships and activities. The United States emphatically condemns racial segregation and apartheid and prohibits any such practice in all territories under its jurisdiction.

Prior to the removal of the racist regimes in southern Africa, the United States condemned the policies and practices of those regimes and imposed economic and related sanctions in accordance with the decisions of the United Nations. Independent of the Federal government's actions, many state and local governments as well as private institutions also acted to divest or otherwise dissociate themselves economically and politically from governments and institutions supporting or tolerating apartheid. Non-governmental groups supported economic boycotts and lobbied and pressured government at all levels to exert political and economic influence to end the racist policies in South Africa.

 

 

 

 

 

Article 4 Eliminate Incitements or Acts of Discrimination

 

 
As a nation, the American people reject all theories of the superiority of one race or group of persons of one color or ethnic origin or theories which attempt to justify or promote racial hatred and discrimination. It is government policy to condemn such theories, and none is espoused at any level of government.

The Convention requires more however. States Parties must "undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination." More specifically, Article 4(a) obliges States Parties to penalize four categories of misconduct:

 (i)   all dissemination of ideas based on racial superiority or hatred,

 (ii)   incitement to racial hatred,

 (iii)   all acts of violence or incitement to violence against any race or group of persons of another color or ethnic origin, and

 (iv)   the provision of any assistance to racist activities, including the financing thereof.

The Committee has stressed the importance with which it views these obligations, as reflected, for example, in General Recommendation VII adopted in 1985 in which the Committee stressed the mandatory character of Article 4, and General Recommendation XV of 1993 in which the Committee stated its opinion that "the prohibition of the dissemination of all ideas based on racial superiority or hatred is compatible with the right to freedom of opinion and expression." Article 4(b) requires States Parties to declare illegal and prohibit organizations which promote and incite racial discrimination, to prohibit their propaganda activities, and to make participation in such organizations and activities an offense punishable by law. Article 4(c) imposes an obligation to forbid public authorities and institutions from promoting or inciting racial discrimination.

 Constitutional Limitations. For the reasons described earlier, the ability of the United States to give effect to these requirements is circumscribed by Constitutional protections of individual freedom of speech, expression and association. Accordingly, the United States took a reservation to this article, and to the corresponding provisions of Article 7, to make clear that it cannot accept any obligation to restrict those rights, through the adoption of legislation or any other measures, to the extent that they are protected by the Constitution and laws of the United States.

Nonetheless, there remains a substantial area in which the United States can, and does, give effect to this article. 

 
 

 

 

Article 5 Equality Under the Law
 
 Article 5 obliges States Parties to prohibit and eliminate racial discrimination in all its forms and to guarantee the right of everyone to equality before the law, without distinction as to race, color, or national or ethnic origin. The protections of the U.S. Constitution meet this fundamental requirement. The policy and objectives of government at all levels are also consistent with its provisions.

Importantly, Article 5 goes even further, requiring States Parties to guarantee equality and non-discrimination on this basis "notably in the enjoyment" of a list of specifically enumerated rights. Some of these enumerated rights, which may be characterized as economic, social and cultural rights, are not explicitly recognized as legally enforceable "rights" under U.S. law. However, Article 5 does not affirmatively require States Parties to provide or to ensure observance of each of the listed rights themselves, but rather to prohibit discrimination in the enjoyment of those rights to the extent they are provided by domestic law. In this respect, U.S. law fully complies with the requirements of the Convention. In many of the areas covered by this article, however, serious problems exist.

 

 

 

Article 5(a) Equality Before Tribunals

 

 
 Equality Before Tribunals. The right to equal treatment before tribunals and all other organs administering justice, as guaranteed by Article 5(a), is provided by U.S. law through the operation of the Equal Protection Clause of the U.S. Constitution, which is binding on all governmental entities at all levels throughout the United States. This right has been reinforced by a number of constitutional decisions. For example, race may not be a criterion in the selection of jurors in criminal or civil cases. See Hernandez v. Texas, 347 U.S. 475 (1954); Batson v. Kentucky, 476 U.S. 79 (1986). Nonetheless, the perception of unequal treatment in the criminal justice system is widespread among Blacks and Hispanics, and in many respects that perception is supported by data.

Some have raised concerns about the use of so-called "secret evidence" in legal proceedings against immigrants. Particularly, critics of the 1996 Anti-Terrorism and Effective Death Penalty Act, which has been interpreted to permit use of this evidence, cite the disproportionate effect on Arab-Americans and American Muslims. The United States has taken the position that the limited use of such evidence, in the context of a system that includes procedural protections, does not violate due process or equal protection guarantees.

 

 

 

 

 

Article 5(b) Security of Person

 
 Security of Person. Under Article 5(b) the State Party must provide equal protection against violence and bodily harm, whether inflicted by governmental officials or by individuals, groups or institutions.

As discussed above, U.S. law prohibits discrimination on the basis of race, color, ethnicity or national origin. Notably, the Fifth and Fourteenth Amendments to the U.S. Constitution guarantee equal protection of the laws to all persons. This guarantee extends to equal protection against violence and bodily harm. Moreover, several statutes have been enacted at both the state and federal level which create criminal and civil liability for violence or threats of violence on the basis of race, color, ethnicity or national origin. See, e.g., Violent Crime Control and Law Enforcement Act of 1994; Civil Rights Act of 1968.

U.S. law has long provided criminal penalties for certain violations of civil rights, including particular acts of violence motivated by racism. See, e.g., 18 U.S.C. sec. 245(b)(2); 18 U.S.C. sec. 247(c); 42 U.S.C. sec. 3631. Federal "hate crimes" law prohibits any person from using force or willful threats to injure, intimidate, or interfere with, or attempt to injure, intimidate or interfere with any person because of his or her race, color, religion, or national origin and because he or she is engaging in certain federally protected rights, including rights related to education, employment and the use of public facilities and establishments which serve the public. In some instances, harsher penalties have been available when ordinary crimes are committed with racist intent. In addition, many states also protect equal rights to security of person through state hate crime laws.

 

 

 

 

Article 5(c) Political Rights

 
 Political Rights. As required by Article 5(c), U.S. law guarantees the right to participate equally in elections, to vote and stand for election on the basis of universal and equal suffrage, to take part in the government as well as in the conduct of public affairs, and to have equal access to public service.

These guarantees arose in the mid-1960s in response to the continued discrimination against Blacks in the electoral process despite the ratification in 1870 of the Fifteenth Amendment, which was intended to protect the right to vote from denial or abridgement on account of race, color, or previous condition of servitude. With the enactment of the Voting Rights Act of 1965, the political process started to become open to Blacks. As interpreted, this statute also reaches discrimination on the basis of ethnic or national origin. It also requires that bilingual voting information be made available where more than 5 percent of the population or 10,000 individuals within a jurisdiction speak a language other than English. The statute was amended in 1982 to prohibit practices that result in the denial or abridgement of the right to vote.

The Department of Justice is responsible, along with private plaintiffs, for the enforcement of the Voting Rights Act. The Department brings suits in federal court under Section 2 of the Act to challenge voting practices or procedures that have the purpose or effect of denying equal opportunity to minority voters to elect their candidates of choice.

By operation of Section 5 of the Voting Rights Act, any change with respect to voting that occurs in a specially covered jurisdiction (applies to nine states in their entirety and to parts of seven additional states) must obtain federal pre-approval before it can be put into affect. The federal review is designed to ensure that the voting change in question will not have the purpose or effect of making minority voters worse off. The Civil Rights Division reviews approximately 20,000 voting changes per year. In recent years, the Attorney General has blocked implementation of a wide variety of discriminatory changes, including annexations and at-large election systems that dilute minority voting strength, discriminatory local and statewide redistricting plans, discriminatory redistricting guidelines, and discriminatory voter assistance procedures.

In recent years, the Supreme Court has recognized a new cause of action that permits White voters to challenge redistricting plans enacted by state or local governments as unconstitutional. This cause of action requires that if a state or local government uses race as the "predominant factor" in redistricting, that use will be subject to strict judicial scrutiny. Under that standard, the action will only be upheld if there is compelling governmental interest in the use of race and if the use is narrowly tailored to meet that interest.

As of August 1, 2000, of the total 1,218 judges on the federal bench, 106 are Black (8.7 percent), 51 are Hispanic (4.2 percent), and three are Native American (0. percent). Of the nine justices on the U.S. Supreme Court, one is of a racial minority (Black). Of the 159 judges on the U.S. Courts of Appeal, ten are Black (6.3 percent), ten are Hispanic (6.3 percent), two are Native American (0.6 percent), and one is Asian (0.6 percent).

According to the Directory of Minority of Judges of the United States published by the American Bar Association, of the approximately 60,000 state court judges, 3,610 are of racial minorities (approximately 6 percent). Of this number, 1,680 are Black, 1,310 are Hispanic, 254 are Asian, and 42 are Native American.

With respect to the 535 members of the 106th Congress, 37 are Black (6.9 percent), 18 are Hispanic (3.4 percent), three are Asian (0.6 percent), and one is Native American (0.2 percent). Of the 50 state governors, only two are of racial minorities - both are Asian. Finally, of the mayors of the 25 largest cities in the United States, eight are Black (32 percent) and two are Hispanic (8 percent).

In 1992 the Census Bureau collected data regarding minority participation in local elected office through the 1992 Census of Governments. The census collected data regarding general purpose government officials (e.g., municipal mayors and city councilors) and special purpose government officials (e.g., school board members). Among the 419,761 officials for whom race or Hispanic origin was reported, 405, 905 were White (96.7 percent); 11,542 were Black (2.7 percent); 1,800 were American Indian, Eskimo and Aleut (0.4 percent); and 514 were Asian or Pacific Islander (0.1 percent). There were 5,859 local elected officials who identified themselves as Hispanic (1.4 percent). This data reflected a notable increase in minority representation since the last time the Census of Governments was conducted in 1987.

 

 

 

 

 

Article 5(d) Other Civil Rights

 
 Other Civil Rights. Article 5(d) obliges States Parties to ensure equality of enjoyment of a number of human rights and fundamental freedoms, including freedom of movement and residence, the right to leave one's country and return, the right to a nationality, the right to marriage and choice of spouse, the right to own property alone as well as in association with others, the right to inherit, the right to freedom of thought, conscience and religion, the right to freedom of opinion and expression, the right to freedom of peaceful assembly and association.

These rights are guaranteed to all persons in the United States in accordance with various Constitutional and statutory provisions. The right to freedom of movement and residence in the United States is guaranteed to all citizens by the "right to travel." Crandall v. Nevada, 73 U.S. 35 (1868). The right of a citizen to enter and leave the United States is recognized by law. The right to marriage and choice of a spouse is one of the "fundamental rights" protected by the privacy provisions of the U.S. Constitution. Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v. Virginia, 388 U.S. 1 (1967). The right to non-discrimination in the ownership of property is protected by the Fifth and Fourteenth Amendments to the Constitution. See 42 U.S.C. sec. 1982; Shelly v. Kramer, 334 U.S. 1 (1948) (finding state action in the state court's enforcement of racially restrictive covenants unconstitutional). Freedom of thought, conscience, religion, opinion, expression and assembly are protected by the First Amendment. One of the purposes of the Fourteenth Amendment to the U.S. Constitution was to protect these ordinary rights of citizens against encroachment by state and local governments. These "privileges and immunities" of national citizenship cannot be abridged by state or local legislation.

Specific intent to interfere with these rights may be criminally prosecutable under a number of statutes. See, e.g., 18 U.S.C. sec. 241 (for conspiracy to deprive persons of such rights), 242 (for deprivation of rights under "color of law"), 245 (for violence or threatened interference with specified federal rights motivated in part by racial animus), 247 (for violent or threatening interference with right to exercise one's religious beliefs), and 42 U.S.C. sec. 3631 (for violent or threatening interference with rights to own or occupy property and to associate therein with persons of another race).

 

 

 
 

 

 

Article 5(e) Economic Social and Cultural Rights

 
 Economic Social and Cultural Rights. Article 5(e)(i) guarantees equality and non-discrimination with regard to the right to work, to free choice of employment, to just and favorable conditions of work, to protection against unemployment, to equal pay for equal work, and to just and favorable remuneration. As a matter of law and regulation, this obligation is met; in practice, however, significant disparities continue. The sources or causes of socio-economic differences are complex and depend on a combination of societal conditions, such as the state of the national and local economies, continued racial and ethnic discrimination in education and employment, and individual characteristics, such as educational background, occupational experiences, and family background.

Although some narrowing of economic status among various racial and ethnic groups has occurred in recent years, substantial gaps persist. For example, in 1998 the median incomes of White non-Hispanic households and of Asian and Pacific Islander households ($42,400 and $46,600, respectively) were much higher than those of Black and Hispanic households ($25,400 and $28,300, respectively). By one 1993 measure, the median wealth (net worth) of White households was nearly 10 times that of Black and Hispanic households. In 1998, the poverty rate among Blacks (26.1 percent) was more than triple the poverty rate of White non-Hispanics (8.2 percent). The poverty rate among Hispanics (25.6 percent) was not statistically different from that of Blacks. According to data from the 1990 decennial census, the poverty rate for American Indians, Eskimos and Aleuts was 30.9 percent in 1989. In the same year, the poverty rate was 9.8 percent for Whites, 29.5 percent for Blacks, and 14.1 percent for Asians and Pacific Islanders.

The pervasiveness of child poverty is of particular concern. Since 1993, poverty rates for children under 18 years within the United States have fallen, but differences among racial and ethnic groups remain high. Between 1993 and 1998, the poverty rate for White children fell 2.7 percentage points to 15.1 percent. The rate for Black children fell even more, from 46.1 percent to 36.7 percent, but was still twice as high as the rate for White children. The rate for Hispanic children fell from 40.9 percent in 1993 to 34.4 percent in 1998, but was not statistically different from the rate for Black children in 1998. By comparison, the rate for Asian and Pacific Islander children in 1998 was 18.0 percent, not statistically different from the rate for White children, and the same as in 1993 (18.2 percent).

In 1989, the poverty rate for American Indian, Eskimo and Aleut children was 38.3 percent [note 6]. In the same year, the poverty rate was 12.1 percent for White children, 39.5 percent for Black children, and 16.7 percent for Asian and Pacific Islander children.

Although there has been an unmistakable increase in inequality both overall and among racial and economic groups in the United States since the mid-1970's, some trends indicate movement toward greater economic equality. As a result of fiscal discipline, investments in the American people, and increased trade, the United States is in the midst of the longest economic expansion in its history. The unemployment rate for Blacks has fallen from an average of 14.2 percent in 1992 to an average of 7.7 percent in 2000 - the lowest rate on record. Since 1993, the poverty rate for Blacks has dropped from 33.1 percent to 26.1 percent in 1998 - another record low. Also, the unemployment rate for Hispanics has dropped from an average of 11.6 percent in 1992 to an average of 5.8 percent in 2000; and the poverty rate for Hispanics as fallen to 25.6 percent, the lowest since 1979.

With regard to other social and cultural rights, as the percentage of immigrants living in the United States has increased in recent years, larger numbers of individuals primarily speak languages other than English. While the number of individuals who speak or understand English and another language is also increasing, this diversity in languages has been met with calls for official language policies or legislation that requires that only English be spoken in the workplace. The present administration has taken the position that an "Official English" law would effectively exclude Americans who are not fully proficient in English from employment, voting, and equal participation in society and be subject to serious constitutional challenge. (Statement of Administration Policy, H.R. 123, 104th Congress).

 

 

 

 

 

Article 5(f) Access to Public Accommodations
 
 Access to Public Accommodations. Consistent with Article 5(f), U.S. law provides strong protections for the right of equal access to any place or service intended for use by the general public, including transport, hotels, restaurants, cafes, theaters and parks.

Title II of the Civil Rights Act of 1964 (42 U.S.C. sec. 2000a) prohibits discrimination because of race, color, religion, and national origin in certain places of public accommodation, such as hotels, restaurants, and certain places of entertainment. In addition, most states have their own laws requiring equal access to public accommodations.

Over the last five years, the majority of public accommodation cases pursued by the Justice Department have involved bars or nightclubs that utilize a similar pattern to keep Black patrons from entering the establishment. Typically the club owner advises Black patrons that the club is private and the patron would have to apply for membership. White patrons, in contrast, are allowed entry without membership or are offered the opportunity to become members on the spot. Cases that raised this scenario include United States v Patin, United States v. Broussard, United States v. Lagneaux, and United States v. Richard, all cases filed in Louisiana in 1995, 1996, 1997, and 1999 respectively; and United States v. C & A Enterprises, filed in West Virginia in 1996. These cases were resolved and the defendants enjoined from continuing their discriminatory practices.

Two Title II suits in recent years have more broadly alleged discrimination in nationwide chains. In 1999, the Department sued HBE Corporation, the owner of the Adam's Mark Hotels. The lawsuit alleged that AMH placed non-white guests in less desirable rooms than white guests or segregate them to the least desirable areas of the hotel; charged non-white guests higher room rates than white-guests; charged different prices for goods and services for non-whites guests than white guests; applied stricter security, reservation, and identification requirements to non-white guests than white guests; and had policies to limit the number of non-white clientele in the hotel's restaurants, bars, lounges or clubs. A proposed settlement of the case is pending court approval. It will enjoin future discrimination at Adam's Mark Hotels and provides for a compliance officer to monitor compliance with the settlement decree; investigate any complaints filed by hotel guests; review, approve, and monitor a training program as well as oversee a testing program; and establish a marketing plan to identify, target, and reach African American markets.

Several years earlier, a suit was filed against the Denny's Restaurant chain. On May, 24, 1994, settlement papers were filed in the United States' Title II action and two private lawsuits against Denny's, one of the largest food service companies in the country. The settlement, embodied in two consent decrees filed in U.S. District Courts in Los Angeles and Baltimore, resolved these suits that had claimed that Denny's failed to serve Blacks, required Blacks to pre-pay for their food, forced them to pay a cover charge, and neglected to serve them. Under the settlement, Denny's agreed to pay $45 million in damages and implement a nationwide program to prevent future discrimination. The decrees required Denny's, inter alia, to: retain an independent Civil Rights Monitor with broad responsibilities to monitor and enforce compliance with the decrees; educate and train current and new employees in racial sensitivity and their obligations under the Public Accommodations Act; implement a testing program to monitor the practices of its company and franchised-owned restaurants; and feature Black and members of other racial minority groups as customers and employees in advertising to convey to the public that all potential customers, regardless  of their race or color, are welcomed at Denny's. The decrees are scheduled to expire in November 2000.

 

 

 

 

 

Article 6 Assure Effective Protection and Remedies

 

 
 Article 6 requires States Parties to assure persons within their jurisdictions effective protection and remedies through tribunals and other institutions for acts of racial discrimination, including the right to seek "just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination."

As set forth throughout this report, U.S. law offers those affected by racial discrimination a number of different remedies, ranging from individual suits in the courts, to reliance on administrative procedures to criminal prosecution of offenders.

Private suits. The federal statutes derived from the Civil Rights Act of 1868, including most of the laws dealing with discrimination by governments and their officials, give the individual a "cause of action," i.e., a right to sue in federal court to correct the alleged discrimination. See, e.g., 42 U.S.C. sec. 1981-1985. These suits may seek injunctive relief, which requires the governmental unit or official to correct the conduct, and monetary relief, which requires the payment of damages. A government official who "knew or ought to have known" that the conduct was unconstitutional or in violation of federal law may also be subjected to punitive or exemplary damages. If the plaintiff "substantially prevails" in one of these suits, the plaintiff can also recover attorneys' fees. Private litigation under these provisions has played a substantial role in promoting and protecting racial equality. Non-governmental organizations that promote civil rights are frequently involved in assisting individual lawsuits. Further, the availability of recovery of attorneys fees has encouraged lawyers and organizations to come to the assistance of such individuals and provides the financial wherewithal to pursue future cases.

Civil Suits by the United States. In many circumstances, the Federal government is authorized to initiate suits to enforce racial equality. See, e.g., the Voting Rights Act, the Fair Housing Act; Titles II, IV and VII of the Civil Rights Act; and the Equal Credit Opportunity Act. Involvement of the government agency in such litigation is important because these suits usually include allegations of discriminatory "patterns or practices" that require intensive investigation that would be difficult for a private party to pursue. The Department of Justice also administers the pre-clearance requirement of the Voting Rights Act, which requires review and approval of changes in state and local voting practices and procedures to assure that they do not have the purpose or effect of denying or abridging the right to vote of members of minority groups. It applies in states and other jurisdictions which historically have denied or abridged minority voting rights.

In addition, under the Fair Housing Act, the Secretary of Housing and Urban Development may initiate investigations and file complaints relating to cases of housing discrimination. The Secretary can also commence actions in administrative tribunals to enforce laws prohibiting housing discrimination.

Criminal prosecution. A number of federal statutes also provide for criminal penalties for intentional or willful violations. In these cases, the U.S. Attorney for the district in question will initiate an investigation, either on the prosecutor's own initiative or on information provided by the Civil Rights Division or by the private complaining party.

Administrative remedies. An entire federal agency, the Equal Employment Opportunity Commission (EEOC), is devoted to the enforcement of anti-discrimination laws relating to employment. An individual may file a complaint with the Commission, which engages in initial investigation and attempts to provide a resolution of the matter through conciliation. In cases where conciliation fails and a determination is made to file a lawsuit to vindicate the public interest, it may assume direct responsibility for prosecuting the case. In other cases, it will issue a "right to sue" letter, permitting the individual to pursue the claim in private litigation.

By statute, the EEOC has five Commissioners and a General Counsel, each of whom is appointed by the President of the United States and confirmed by the Senate. With its headquarters in Washington, DC, the EEOC operates approximately fifty field offices nationwide, including district, area and local offices. Each of these field offices has an enforcement staff responsible for accepting charges of discrimination from the public, investigating the charges, and attempting conciliation and mediation. Each district and most area offices also have a legal unit, responsible for providing legal advice to the enforcement staff and bringing lawsuits in federal court to enforce Title VII.

In addition to enforcement efforts through the administrative process and litigation, the EEOC enforces Title VII though various other means. For instance, the EEOC issues procedural regulations implementing Title VII, requires employers to post notices summarizing the requirements of Title VII, and requires large employers to file reports on the relationship of minority workers to the employer's total workforce in specified job categories.

The EEOC recently has been able to implement significant changes in the pursuit of ending race discrimination. The EEOC has increased its staff of investigators and attorneys and has modernized its technology. In addition, the EEOC has developed a comprehensive strategic enforcement model to reduce the backlog of charges, increase the number of charges resolved through mediation, develop closer ties with its stakeholders in local communities, and increase public awareness of discrimination. In the arena of federal employment, the EEOC has modified the regulation governing the administrative complaint process, 29 C.F.R. ¤1614, to streamline the process by eliminating unnecessary layers of review and addressing perceptions of unfairness. The most significant change is the transfer of authority to issue a final decision on discrimination complaints from the agency charged with discrimination to the EEOC.

Since its creation in 1965, the EEOC (and state and local fair employment practice agencies, known as FEPAs) have received approximately 1.2 million charges of discrimination based on race and approximately 275,000 charges of discrimination based on national origin. In Fiscal Year 1999, the EEOC and the FEPAs received approximately 50,000 charges of discrimination based on race and approximately 13,000 charges of discrimination based on national origin. Since 1965, the EEOC and the FEPAs have recovered more than $2.2 billion in monetary damages through voluntary settlement or conciliation during the administrative process on behalf of victims of discrimination. In 1999 alone, the EEOC recovered over $210 million in monetary damages in the administrative process. The EEOC also has initiated lawsuits based on many meritorious charges that were not resolved in the administrative process, recovering over $8.5 million in 1999. Over the past ten years, the EEOC has filed 866 lawsuits alleging discrimination based on race and 242 lawsuits alleging discrimination based on national origin. In many cases, the EEOC secures other valuable relief in addition to monetary damages, such as reinstatement of wrongfully discharged employees, court-ordered training in the equal employment opportunity laws, the development of written equal employment opportunity policies, and court orders prohibiting specific discriminatory practices. Taken together, the monetary and non-monetary relief serve the dual purpose of compensating victims of discrimination and preventing similar forms of discrimination from recurring in the future.

 

Other federal agencies also play important roles in enforcing civil rights and equal protection:

At the Department of Labor's Office of Federal Contract Compliance Programs, individuals may file complaints if they believe they have been discriminated against by federal contractors or subcontractors, and the Office itself may conduct compliance investigations to determine whether contractors are complying with Executive Order 11246's non-discrimination and affirmative action obligations. Complaints may also be filed by organizations on behalf of the person or persons affected. Other departments administer laws requiring recipients of federal financial assistance to provide equal opportunity for participants of programs that receive the federal financial assistance.

As discussed earlier, the Department of Education's Office of Civil Rights (OCR) bears primary responsibility for enforcing laws prohibiting discrimination in educational programs and activities receiving federal financial assistance. But while a large share of OCR's work is enforcement, OCR also issues national policy statements that define to the nation-at-large the scope of legal requirements to eliminate racial barriers to equal educational opportunity. These policies address many key, sometimes controversial issues, including:

Educational Opportunity for English Language Learners. OCR requires school districts to ensure equal educational opportunity to English language learners. Districts are required to take affirmative steps to provide equal educational opportunity where the inability to speak and understand the English language excludes national origin minority group children from effective participation in the district's educational program. The Supreme Court in Lau v. Nichols, 414 U.S. 563 (1974) upheld OCR's policy that requires school districts to ensure that language barriers do not exclude English language learners from effective participation in their programs.

Higher Education Desegregation. OCR's policy provides guidance to institutions of higher education pursuant to the Supreme Court's decision in Ayers v. Fordice, 111 F. 3d 1183 (4th Cir. 1997) cert. denied, 522 U.S. 1084 (1998), requiring the elimination of vestiges of desegregation in formerly de jure higher education systems.

Race Based Financial Assistance. OCR's policy guidance on race based financial assistance sets forth five principles that satisfy the requirements of Title VI. These principles provide that:

1.   A college may make awards of financial aid to disadvantaged students without regard to race or national origin even if that means that such awards go disproportionately to minority students.

2.   A college may award financial aid on the basis of race or national origin if the aid is awarded under a federal statute that authorizes the use of race or national origin.

3.   A college may award financial aid on the basis of race or national origin if the aid is necessary to overcome the effects of past discrimination. A finding of discrimination may be made by a court or administrative body, and may also be made by a State or local legislative body, as long as the legislature has a strong basis in evidence identifying discrimination within its jurisdiction for which that remedial action is necessary. In addition, a college may voluntarily take action to remedy its past discrimination where it has a strong basis in evidence for concluding the action is necessary to redress its past discrimination and its financial aid program is narrowly tailored to that purpose.

4.   A college may promote its First Amendment interest in diversity by weighing many factors -- including race and national origin and its efforts to attract and retain a student population with different experiences, opinions, backgrounds, and cultures -- provided that the use of race or national origin is consistent with the constitutional standards reflected in Title VI, i.e., that it is a narrowly tailored means of achieving the goal of a diverse student body.

5.   Title VI does not prohibit an individual or an organization that is not a recipient of federal financial assistance from directly giving scholarships or other forms of financial aid to students based on their race or nation origin. Principles 3 and 4 apply to the use or race-targeted privately donated funds by a college and may justify awarding these funds on the basis of race or national origin if the college is remedying past discrimination or attempting to achieve a diverse student body.

Racial Harassment. OCR's policy on racial harassment provides that a recipient of federal financial assistance violates Title VI if 1) an official representative of a recipient treats someone differently in a way that interferes with or limits the ability of the student to participate in or benefit from the recipients' program; 2) the different treatment occurred in the course of the official or representative's assigned duties or responsibilities, and 3) the different treatment was based on race, color, or national origin, and there was no legitimate nondiscriminatory non-pretextual basis for the different treatment. An official representative will also be in violation of Title VI if his or her actions establish or contributes to a "racially hostile environment" (1) when the recipient had actual or constructive notice of a racially hostile environment and (2) a racially hostile environment existed, and (3) the recipient failed to respond adequately to redress the racially hostile environment.

U.S. Commission on Civil Rights Oversight. In addition to institutions devoted to law enforcement, other bodies are involved in making policy recommendations to improve the protection of the rights of minorities. The Civil Rights Commission conducts studies and makes recommendations in this regard, and it receives communications from individuals and groups about alleged discrimination.

Further, through fifty-one State Advisory Committees, including the District of Columbia, the Civil Rights Commission receives information on civil rights issues in the states. Through the Commission's regional directors, the Committees hold regular meetings, cooperate on race-related projects, and submit findings to the Commission on civil rights issues that have regional importance. From time to time, the Commission may recommend specific projects to be undertaken.

Equal opportunity officers. Another approach to protecting individuals is the requirement that many larger employers designate an "equal opportunity officer" within their organization, whose responsibility is to receive and respond to complaints about employment discrimination within the firm. In effect, this requirement provides an internal advocate within the firm for protection of the rights secured by this Convention. The equal opportunity officers may make recommendations to prevent discriminatory practices, as well as to remedy instances that have occurred. They are not, strictly speaking, "enforcement" officers, but have had a significant impact on realization of the goals of non-discrimination.

 

 

 

 

 

Article 7 Adopt Measures

 

 

 Article 7 requires States Parties to adopt measures in the fields of teaching, education, culture and information to combat racial discrimination and to promote racial and ethnic tolerance and friendship among nations and groups, and to propagate the purposes and principles of the UN Charter, the Universal Declaration of Human Rights, the UN Declaration on the Elimination of All Forms of Racial Discrimination, and this Convention.

The President's Initiative on Race actively educated the American people about the role of race in our nation's history and its current impact on our society. From the Initiative on Race, several publications were produced and widely disseminated to community groups, educational institutions, public officials and individuals in order to provide a more accurate picture of the nature of racial issues.

"Changing America: Indicators of Social and Economic Well-Being by Race and Hispanic Origin" documents current differences in key indicators of well-being: education, labor markets, economic status, health, crime and criminal justice, and housing and neighborhoods. The information in this publication provides a factual base on which to build dialogue about race.

"Pathways to One America in the 21st Century: Promising Practices for Racial Reconciliation" profiles community-based organizations focused on furthering racial reconciliation in a variety of fields. This publication is designed to be a reference tool to be used by Americans who wish to work in partnership with others working to heal racial barriers and close opportunity gaps.

The "One America Dialogue Guide" is a step-by-step educational resource on ways to organize and conduct a cross-cultural dialogue in one's own community.

"One America in the 21st Century: Forging a New Future" is the final report to President Clinton by the Advisory Board to the President's Initiative on Race. This comprehensive document is an account of the Advisory Board's fifteen-month examination of race relations in the United States. By exploring the historical basis for existing perceptions and misperceptions of race in America, this report creates a social context for productive dialogue on how to build One America. The report also makes specific recommendations on how the government, the corporate community, non-governmental organizations and private citizens can take active steps to promote racial reconciliation.

All four publications are available in print and may be viewed and printed from the White House website http://www.whitehouse.gov.

The President's Initiative for One America continues to further the President's goals of educating the American public about race. In October 2000, the Initiative for One America and the Department of Education will organize the third annual Campus Week of Dialogue. This year's theme: "Many Paths, One Journey: Building One America" reflects the mission of educating students on diversity-related issues and providing all students the opportunity to succeed in a multi-racial society.

The United States also promotes the goals of Article 7 globally through the U.S. Department of State, particularly the U.S. Information Service. Media like World Net and Voice of America are used to broadcast news and information programs on rule of law, tolerance and other topics related to combating racism and to promote tolerance. These outlets give overseas audiences direct access to experts and policy makers in the United States concerned with issues related to race.

The United States also sends speakers to overseas missions to foster discussion on issues important to multi-cultural societies. Similarly, the State Department's Office of Public Diplomacy distributes publications to target organizations ranging from host country governments to local media and civil society groups such as NGOs.

Moreover, the United States promotes the interests identified by Article 7 through various professional and education exchange programs. Through the Professionals in Residence program, the Department of State sends specialists to non-academic institutions such as foreign media organizations and government ministries to promote the interests identified in Article 7. The United States is also active in CIVITAS, an international consortium for civic education which maintains a worldwide network devoted to promoting informed and responsible citizenship. In addition, the United States devotes substantial resources to the Fulbright Scholar Program, providing enhanced educational opportunities to U.S. and foreign scholars through grants and fellowships, and the International Visitors Program, which brings foreign judges, lawyers, NGO leaders and teachers to the United States for study tours and professional conferences.

In the fall of 1997, President Clinton identified the prevention and prosecution of hate crimes as a priority issue for the nation and announced the creation of a national initiative to examine the current state of race relations in America. In response, the Attorney General established a Hate Crime Working Group consisting of staff from all Justice Department agencies. A major initiative of the Hate Crime Working group is to expand and improve hate and bias crime data collection within the Department of Justice.

Through its Office of Victims of Crime (OVC), the Department of Justice has taken steps to adopt measures to combat discrimination and to promote understanding among racial and ethnic groups. This is evidenced through various measures and programs that are OVC funded

In early 1998, OVC coordinated with the Bureau of Justice Statistics to develop a survey instrument to identify the number of Victims of Crime Act funded victim assistance programs that serve hate and bias crime victims. OVC conducted this informal survey in May, 1999.

OVC provides funding to the National Victim Assistance Academy which conducts annual training sessions at five different locations throughout the United States. Each year, the Academy reaches over 250 participants comprised of state and federal personnel that work with crime victims. There is a formal curriculum which includes a chapter on hate and bias crime.

OVC, in conjunction with the Bureau of Justice Administration, and the International Association of Chiefs of Police, developed an eleven page brochure entitled Responding to Hate Crimes: A Police Officer's Guide to Investigation and Prevention. The brochure teaches law enforcement officers how to identify and respond to hate crimes. This grant project printed 450,000 copies of the brochure which are anticipated for distribution to law enforcement agencies nationwide.

OVC plays a major role in the Justice Department Hate Crime Working Group's Hate Crime Training for Law Enforcement. OVC assisted in development of four training manuals and a student workbook. OVC assisted in the development and delivery of special training for local trainers and to all of the states, who in turn, are now reaching out to the local law enforcement agencies to provide training on responding to hate crime. Hundreds of local police departments have received this training in the last year.

As opportunities present themselves OVC provides training on hate crime, hate crime victims' needs, cultural awareness, and, effective responses to hate crime. This training has been provided at several national, and local conferences and symposia reaching thousands of victim service providers.

OVC also provides grant funding to such non profit organizations as the National Multi-Cultural Institute which conducts training on cultural sensitivity in dealing with crime victims. Approximately 150 people have been trained this year. Additional training sessions are planned.

The Department of Interior operates several programs that promote education and awareness of diverse students to the fields of science and natural resources. For instance, at Chamizal National Memorial, Texas, the National Park Service sponsors special programs and activities to broaden understanding and to encourage perpetuation of cultural heritages in the performing and graphic arts.

The Department of Interior has also begun the Underground Railroad Program nationwide. This relatively new program is in the process of identifying hundreds of key people and places in the US, Canada, and Mexico associated with the network of individuals who guaranteed the safety of escaped slaves during the 19th Century abolitionist movement. Each person and site selected as part of this program will be interpreted in terms of the acts of bravery an suffering in the quest for freedom for all.

 

 

 

 


D. Conclusion

 

 

Over the years, the United States has worked hard to overcome a legacy of racism and racial discrimination, and it has done so with substantial successes. Nevertheless, significant obstacles remain. But, as a vibrant, multi-cultural democracy, the United States -- at all levels of government and civil society -- continually reexamines and reevaluates its successes and failures, having the elimination of racism and racial discrimination as its ultimate goal. The United States looks forward to discussing its experiences and this report with the Committee.

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1.   For ease of reference this report will use the terms for racial and ethnic categories used by the U.S. Census Bureau.

    
2.   The classification of the population by race and ethnicity is based on a statistical standard issued by the U.S. Office of Management and Budget (OMB) in 1977. OMB issued a revised standard in 1997. Under the revised standard, individuals may report more than one race; the Asian and Pacific Islander category is divided into two categories; and there are changes in terminology. The five racial categories are: White, Black or African American, American Indian and Alaska Native, Asian, and Native Hawaiian and Other Pacific Islander. The two ethnic categories are Hispanic or Latino and Not Hispanic or Latino. Data on the population by race and ethnicity from the 2000 census will reflect the 1997 standard and will become available in 2001.


3.   Since the population of Hispanic origin may be of any race, the four minority groups are not mutually exclusive. In 1999, 2.8 million individuals were classified in two minority groups, including 1.8 million Black and Hispanic; 0.4 million American Indian, Eskimo, and Aleut, and Hispanic; and 0.6 million Asian and Pacific Islander and Hispanic.

4.   Because the United States uses an acknowledgment process through which Native American tribes are given federal recognition (making them eligible to receive services and benefits provided to Native Americans), this figure may not reflect the number of people of Native American ancestry who do not belong to a federally recognized tribe.

 



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