COMMENTS
OF THE RAINBOWPUSH COALITION ON THE
PERIODIC
REPORT OF THE
UNITED STATES OF AMERICA
TO THE UNITED NATIONS COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION (CERD)
UNITED STATES OF AMERICA
TO THE UNITED NATIONS COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION (CERD)
On
June 12, 2013, the State Department reported on efforts to eliminate racial
discrimination in the U.S. According to
the Periodic Report to the United Nations, although the U.S. has “made
great strides over the years in overcoming the legacies of slavery, racism,
ethnic intolerance, and destructive laws, policies, and practices relating to
members of racial and ethnic minorities…the path toward racial equality has
been uneven, racial and ethnic discrimination still persists, and much work
remains to meet our goal of ensuring equality for all.”
Attorney
General Eric Holder indicated on August 12, 2013 that the United States
Department of Justice will seek to ameliorate the harsh effects of mandatory
minimum sentencing in federal courts and seek alternatives to incarceration. We hail this announcement as a positive step
in the right direction toward lowering one of the highest incarceration rates
in the world. Some states, most notably
California, due to persistent advocacy, regulatory pressures, as well as the spiraling
costs of caring for an aging prison population, are also experimenting with
ways to reduce the number of incarcerated persons in the United States.
2013
marks the fiftieth anniversary of the March on Washington and one hundred and
fifty years since the Emancipation Proclamation freed enslaved persons held in
rebellious Confederate states. Glaring
racial disparities in health, education, incarceration rates and accumulated
wealth are only a few of the indicators that race discrimination is a sad fact
of American life. We take issue with the
assertion that “existing U.S. constitutional and statutory law and practice
provide strong and effective protections against discrimination…in all fields
of public endeavor, and provide remedies for those who, despite these
protections, become victims of discrimination.”
Racial profiling and mass incarceration are two examples of the failure
of U.S. law and policy to address the effects of discrimination.
Historically, the Civil
Rights Movement was bolstered by considerations of national security, national
pride and concern for world opinion. In
that spirit, we offer these comments regarding the recent U.S. report to the
CERD and U.S. response to previous CERD recommendations.
Compounding the problem is the
expanding trend to require civil rights plaintiffs to prove that racial
discrimination is “intentional”. Civil
rights groups and the government have relied heavily on disparate impact
because intent is so difficult to prove.
Disparate impact is not concerned with intent, but instead focuses on
results. The CERD
In the U.S. remedies for
discrimination are routinely “strictly scrutinized” to assure that blacks who
have been historically excluded from virtually every area of American life
don’t receive too much relief. For
example, in the recent Fisher v. Texas case, the Department of Justice
sought to defend a race-conscious admission policy designed to increase the
number of black and Latino students at the university. A 5-4 majority of the Supreme Court sent the
case back to the 5th Circuit Court of Appeals to determine whether
the implementation of the program was sufficiently narrowly tailored to meet a
compelling state interest. Ten years
ago, the Court deferred to the judgment of university officials regarding
“complex educational judgments.” Now, the Court is unwilling to accord the
University of Texas the same deference.
The history of civil rights enforcement by the U.S. Supreme Court over
the past forty years has largely been the tale of barely holding on to past
gains, while persons seeking redress for discrimination must climb a narrower,
rockier path.
In the area of government
contracting, local governments must undertake expensive time-consuming
“disparity studies” to prove that discrimination continues to exist. Minority-owned contracting firms must undergo
rigorous examinations of their official papers and records to qualify for
diversity programs aimed at bolstering inclusion. These and similar mechanisms discourage
would-be bidders. With regard to federal
government incentives for inclusion of black contractors in work of private
firms, sometimes, as in the case of the $16 billion dollar Southern Nuclear
plant construction in Georgia, federal subsidies such as loan guarantees are
extended without any goal or consideration of inclusion of minority-owned
firms.
It should be noted that many of the examples of progress cited
by the United States emanate from districts outside the former Confederate
southern states. Examples from federal
appeals courts in New York[i][1],
South Dakota[2]
and Pennsylvania[3]
hardly tell the story of the United States when it comes to race. Half of all blacks still live in the South
and federal courts in the 4th, 5th and 11th
Circuits are the most hostile to race discrimination claims of all kinds. It is also true that these circuits sentence
federal defendants at much as 30% more harshly than the federal sentencing
guidelines require, and much more harshly that federal courts in other
circuits.
The United States and the
states have done very little to address the following 2008 CERD
recommendations, and as a result race discrimination in these areas is still
rampant.
1. The Committee recommends that the State party review the
definition of racial discrimination used in the federal and state legislation
and in court practice, so as to ensure…that it prohibits racial discrimination
in all its forms, including practices and legislation that may not be
discriminatory in purpose, but in effect.
2. The Committee recommends that the State party broaden the
protection afforded by the law against discriminatory acts perpetrated by
private individuals, groups or organizations
3. The Committee recommends that the State party consider the
establishment of an independent national human rights institution in accordance
with the Paris Principles.
4. The Committee recommends that the State party establish
appropriate mechanisms to ensure a coordinated approach towards the
implementation of the Convention at the federal, state and local levels.
5. The Committee recommends that the State party strengthen its
efforts to combat racial profiling at the federal and state levels, inter alia,
by moving expeditiously towards the adoption of the End Racial Profiling Act,
or similar federal legislation.
6. The Committee therefore calls once again upon the State party to
adopt and strengthen the use of such measures (affirmative action) when
circumstances warrant their use as a tool to eliminate the persistent
disparities in the enjoyment of human rights and fundamental freedoms and ensure
the adequate development and protection of members of racial, ethnic and
national minorities.
7. The Committee recommends that the State party undertake further
studies to identify the underlying causes of de facto segregation and racial
inequalities in education, with a view to elaborating effective strategies
aimed at promoting school desegregation and providing equal educational
opportunity in integrated settings for all students.
8. Bearing in mind [that] stark racial disparities in the
administration and functioning of the criminal justice system, including the
disproportionate number of persons belonging to racial, ethnic and national
minorities in the prison population, may be regarded as factual indicators of
racial discrimination, the Committee recommends that the State party take all
necessary steps to guarantee the right of everyone to equal treatment before
tribunals and all other organs administering justice, including further studies
to determine the nature and scope of the problem, and the implementation of
national strategies or plans of action aimed at the elimination of structural
racial discrimination.
9. The Committee wishes to reiterate its previous recommendation
contained in paragraph 396 of its previous concluding observations of 2001,
that the State party adopt all necessary measures, including a moratorium, to
ensure that death penalty is not imposed as a result of racial bias on the part
of prosecutors, judges, juries and lawyers.
The United States seems
impervious to its own pre-judgments about race.
There is widespread belief that the racial and ethnic disparities are
caused by lack of personal responsibility instead of institutional racism. There are none so blind as those who will not
see. African Americans in particular who
complain about the policies and practices described above are admonished to
“get over it”, or “stop playing the race card.”
We applaud the work of the
CERD and urge US policy makers to take its observations and recommendations
seriously.
[1]
“…New York
City’s use of examinations for firefighters had an unlawful disparate impact on
Blacks/African Americans and Hispanics/Latinos. U.S. v. City of New York, NY,
683 F. Supp. 2d 77 (E.D.N.Y. 2009).”
[2] “…a recent
enforcement action led to an agreement with Shannon County, South Dakota to
ensure the voting rights of Lakota-speaking Native American voters with limited
English proficiency.”
[3] “For
example, in 2010, the Department of Health and Human Services Office for Civil
Rights (HHS/OCR) secured a settlement requiring the University of Pittsburgh
Medical Center to ensure that closure of a hospital in a predominately
Black/African American community did not have a disparate impact on the
residents of that area.”
