The Impact of Residential Resegregation,
Racially Polarized Voting and Redistricting,
and “Second-Generation” Bars to Voting by
Racial Minorities on Educational Funding 11 20
ii. De Facto Educational and Housing
Resegregation and its Impact on Education 11 22
iii. Recent developments in US Constitutional
and State law have legally legitimated and
aggravated racially polarized voting patterns,
violating, inter alia, CERD, articles 2 and 6 17 30
B. College Education 21 38
IV. Legal Education and Entrance to the Legal Profession 31 53
A. Market-Based Burdens 31 54
B. Licensing and Accreditation Burdens 33 59
C. Admission to Law School is Increasingly Determined
by Scores on the Law School Admissions Test
(LSAT), A Standardized Test with Established
Disparate Impact on Racial Minorities 33 60
D. Admission to the Practice of Law is Determined by
Standardized Tests That Have Never Been Correlated
With Successful Practice of Law, But Which Result
in Dramatic Racial Disparities 34 61
E. Instead of Addressing These Serious Racial Disparities
in the Legal Profession, the United States Is Trying to
Reduce the Obligations of Law Schools to Improve
Racial Diversity in Legal Education and in the
Profession of Law 35 62
V. Racial Minorities Surviving in a Legal Profession
that is Overwhelmingly White 35 65
VI. The United States Government Bears Responsibility for the
Lack of Racial Diversity in the Legal Profession on the Federal
(Executive, Legislative, and Judiciary), State (Executive,
Legislative and Judiciary), Local (Executive, Legislative,
and Judiciary) and Private Levels 40
Violations of Convention Obligations 40 73
B. Violations of Obligations undertaken in the
U.S. Reservations Understandings and Declarations 44 101
VII. Conclusion 48 111
VIII. List of Recommendations 48 114
Annex A. A short primer on U.S. federalism and the
International Convention on the Elimination of All Forms
of Racial Discrimination (ICERD) prepared at the request
of the US Human Rights Network 50
Summary of the Issue
1. Notwithstanding the election of an African-American as President of the United States, federal, state, and local level hurdles of a public and private nature to the elimination of all forms of racial discrimination2 have been relentlessly erected or enhanced, and at an accelerating pace. Since our February 2008 Human Rights Network response on Racial Discrimination in the Legal Profession to the Second Report of the United States to the United Nations Committee on the Elimination of Racial Discrimination, these increasing hurdles continue to slow and erode the meaningful participation of racial minorities in all aspects of United States life.
2. In the United States, racial minorities confront explicit and implicit bias amounting to race discrimination in education and in employment, and lack of equality before the law, and in the administration of justice. Such discrimination undermines the effectiveness of legal education and the legal profession in their broader roles in promoting social justice community-wide.
3. Whether through purposive indifference, open hostility, or the combined actions of public and private actors – and notwithstanding the efforts of many individuals and organizations to work to advance racial justice – on the whole, since our last report, the meaningful inclusion of racial minorities in the United States legal profession has become less attainable as the United States accelerates its retreat from racial justice.
4. The under-representation of racial and ethnic minorities in U.S. legal education, the federal government’s misuse of its accreditation power, the U.S. Supreme Court’s dramatic retreat from the effort to address racial discrimination through its decisions eroding race-conscious affirmative action while enshrining majority rule through its decisions in favor of states’ rights in our federal governmental structure3 (burdening both minority voting rights and meaningful minority participation in their governance through letting stand a state ban of race-conscious affirmative action), the state and local government perpetuating of structural disparities of a public and private nature that inure to the detriment of racial minorities implicate the several provisions of the ICERD as described in detail below.
5. The ongoing under-representation raises concerns about the rights of racial minorities to education and training under Article 5(e)(v). It also implicates Article 5(a), as the exclusion of minorities from the legal profession negatively impacts the equal treatment of the under-represented communities before tribunals and other justice organs. The problem of under-representation similarly jeopardizes the United States’ compliance with the Article 6 right to effective protection and remedies. Because a legal education is an important entry route into political office, minority under-representation also affects Article 5(c) political rights.
6. As described below, the United States government’s use/misuse of its law school accreditation power is worsening the situation. The government’s actions implicate a cluster of Convention protections requiring that ratifying states address situations of de facto discrimination and inadequate development, including: 1) the Article 1(4) requirement of special measures for “adequate advancement” to ensure equal enjoyment of human rights and fundamental freedoms; 2) the Article 2(1) requirement that the government condemn and eliminate discrimination and to promote understanding; 3) the Article 2(2) mandate of special concrete measures to ensure adequate development and protection of certain racial groups or individuals belonging to them; and 4) Committee Recommendation XIV calling for an end to practices and legislation that are discriminatory in effect, if not in purpose.
7. With regard to racial minorities in the legal profession, the consequence of this deteriorating situation is to place the United States in material breach of its obligations under the International Convention on the Elimination of all Forms of Racial Discrimination.
8. While we welcome the United States’ periodic report of June 12, 2013 and Common Core Document and Annex submitted on December 30, 2011, our primary concern with it is structural. The report provides in detail specific activities related to particular aspects of compliance by the federal, state, and local levels with the ICERD. It lacks a more systemic vision that takes into account what the Executive, Legislative and Judiciary are doing at the federal and state level to ensure compliance with these treaty obligations. It does not provide the history that directly impacts the state of U.S. compliance with these international obligations. As a consequence, the CERD runs the risk of having a piecemeal understanding of the complexities of compliance with the ICERD in the United States. Through our lens of Racial Discrimination in the Legal Profession, we hope to provide the CERD a more holistic understanding of the interplay of discrete aspects of the U.S. domestic experience with the diversity of the legal profession. It is the interwoven nature of discrete policies that might on their face appear neutral that will help the CERD better understand how serious is the situation in the United States.
Legacy of U.S. Apartheid4
9. The serious under-representation of racial minorities in the legal profession arises from a significant negative national legacy of slavery and apartheid coupled with continuing adverse developments on education prior to legal education, legal education and entrance into the legal profession, and experiences of racial minority lawyers.5 The following section lays out the pernicious economic and social consequences for racial and ethnic minorities during the era of U.S. slavery and post-slavery apartheid, which had a devastating impact on educational opportunities for racial minorities.
10. The crimes committed by the United States government against African-Americans did not terminate with the end of slavery in 1865, but rather were continued and perpetuated by a legal system of apartheid instituted in over 16 U.S. states by law. This system of apartheid extended to such basic functions of society as schools,6 transportation,7 housing,8 use of public spaces,9 the workplace,10 movement within a jurisdiction,11 marriage,12 politics,13 simple recreational activities such as boating,14 dining,15 intimate relations,16 libraries,17 prisons,18 circuses, ticket booths,19 blind wards,20 and almost every other kind of public or private accommodation.21 In Alabama, it was even illegal for whites and blacks to play dominoes or checkers together.22 11. The pervasiveness of apartheid in the educational context is illustrated by a North Carolina law that prohibited schools from using books used by the other race.23 Thus, African-Americans were prohibited from obtaining used, presumably inferior, schoolbooks discarded by the better-financed white school districts. This all-encompassing system of legalized separation of the races occurred with the legal approval and/or acquiescence of the federal judicial and political system.
12. Over two hundred years of slavery had deprived African-Americans of the resources, familial economic legacies, and education to compete effectively against a hostile majority of European origin. However, the effects of slavery were left unsettled and exacerbated by apartheid through the systematic denial of equal protection in education.
13. During the United States’ apartheid era, government actions deprived African-Americans of the little they possessed following 200 years of enslavement. State officials and private individuals used both legal and illegal means to deprive African-American farmers of land.24 Those farmers were removed from their property and were forced to turn to sharecropping, where they remained in servitude to white plantation owners.25 Some towns prohibited African Americans from purchasing farming tools or agreed only to sell them farming tools at usurious interest rates that consequently forced many African American farmers to sell their entire harvest to whites.26 14. In this context, sharecropping arrangements between white landowners and dispossessed or landless freedmen gained momentum.27 Illiterate freedmen would contract with plantation owners to use a tract of land for agricultural purposes, giving to the owners a percentage of the crops cultivated in exchange.28 Freed slaves, without capital to purchase land or agricultural tools, would end up agreeing to unfair terms that indebted them to the land owners, thus falling into a bond of servitude not substantially different from slavery.29 15. Southern states enacted Black Codes and engaged in the practice of “convict leasing,” creating yet another economic disadvantage for blacks.30 For example, states enacted vagrancy laws between 1893 and 1909 that permitted the authorities to arrest blacks for minor crimes such as “idleness” or “immorality.”31 Following their arrest, the authorities would allow white farmers to pay the arrestees’ fines and court costs in exchange for working off their fines at a menial wage.32 In addition to requiring blacks to work off their fines and costs, the white farmers would charge the arrested blacks numerous fees for food and lodging. It was nearly impossible for the arrested blacks to pay off their costs, continuing a seemingly endless state of servitude.33 Though often overlooked, the system of convict leasing continued well into the twentieth century.34 In some cases, similar practices continue today in certain Southern states. In Georgia, for example, some local governments have “outsourced” supervision of misdemeanor and traffic violations, resulting in continuing indebtedness as fines that multiply over time, payable to private companies with local government connections.35
While discrimination against African Americans was rampant throughout the southern states, the northern states were not immune to the process.36 In the northern states, African Americans faced “substantial discrimination in employment, housing, and access to credit.”37 For instance, newly arrived European immigrants were given preference for employment over blacks.38 Restrictive covenants prohibiting the sale of homes to blacks were found to be constitutional and were routinely upheld by courts39 until the 1948 decision in Shelley v. Kraemer.40
16. The federal government was an active participant in the economic subordination of African Americans through the organization of federal programs and employment policies.41 For instance, President Wilson lawfully instituted policies of segregation in federal employment in 1913 and perpetuated the discriminatory policies of the military that prevented decorated black soldiers from moving up the ranks.42 Blatant discrimination against African Americans continued in employment, housing, and federal funding.43 While much of the country was receiving governmental assistance during difficult economic times though federally funded New Deal programs, African Americans were excluded from important assistance.44 For example, special financial assistance was provided to farmers and business owners during the Great Depression, but denied to African-American farmers.45 The Federal Housing Administration openly discriminated against blacks in obtaining housing subsidies and supported racist restrictive covenants that prevented African-Americans from purchasing homes.46 17. As a part of this system, de jure segregated schools in large portions of the United States and de facto segregated schools in much of the rest of the United States created the possibility of targeting schools for differential funding and resources based on their racial demographics. The state implementation of apartheid in the educational context was complete in former slave states and pervasive in the rest of the country.47 Oklahoma state law even criminalized White American teachers educating African Americans.48 As noted earlier, North Carolina law prohibited the use of schoolbooks by one race that were previously used by another race.