Monday, August 19, 2013

United Nations Reviews U.S. Efforts to Eliminate Racism



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.”



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