Racial discrimination in the legal profession


Legal Education and Entrance to the Legal Profession



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Legal Education and Entrance to the Legal Profession

53. Even for those racial minorities who make their way through the gauntlet of public and private burdens described in sections II and III above, the admission to law school process creates further hurdles.




  1. Market-Based Burdens

54. Part of the manner in which law schools compete for an increasing scarce number of students is by enhanced ranking in what is a private rating entity called the U.S. News and World Report. The criteria for the ranking focus on Law School Admissions Test (LSAT) scores, Undergraduate Grade Point Average (GPA), and deemphasize factors that account for the successful practice of law.118 As a consequence, in order to maintain a top ranking in this system, schools seek to recruit students with top scores for their classes through mechanisms such as the so-called merit-based versus need-based financial packages. As those schools fill up, students with lower LSATs and GPAs are accepted with less extensive financial aid packages. This dynamic continues at the next lower ranked schools down through a cascade of the rankings of these schools. The cutoffs for rankings appear to be at around the level where significant numbers of racial minorities score for the LSAT and GPA. The result is that for Hispanics and blacks, their rate of rejection from all law schools to which they apply (the “shut out rate”)119 is much higher than that for their white counterparts, and for Asian-Americans with comparable average LSAT scores to whites, the shut out rate is significantly higher than for whites.





120
55. As noted above, for those members of racial minorities who are accepted to law schools, the merit-based vs. need-based financial packages tend to make the financing of legal education more burdensome due to the fact that minority wealth such as that of blacks is one twentieth of the wealth of whites.121
56. As the principal ranking mechanisms of this principal private rating entity do not take into account any criteria that reflect diversity, the pressure on all the law schools is to seek out the more higher scoring students, who tend to be from the majority as opposed to racial minorities. The effect is to depress the actual number of students from racial minorities entering law schools.
57. Individual law schools do, as a matter of institutional conscience, factor minority, sexual orientation and gender minority status into admissions and financial aid decisions. U.S. News and World Report creates a diversity ranking for law schools, but does not factor that ranking into the overall institutional rankings, creating perverse institutional incentives. Thus individual law school efforts are overshadowed, and the end result is law school demographics that show a systematic underrepresentation (as a percentage of the population) of blacks, Hispanics and indigenous people. Asian-Americans experience a higher shut-out rate as compared with whites, even while overrepresented.
Law School Demographics

(see ABA /LSAC Guidebook



Group

2011

Census 2010

American Indian/Alaska Native

0.8%

0.9%

Asian

7.1%

4.8%

Black/African America

7.1%

12.6%

Caucasian/White

75.5%

56.1%

Hispanic/Latino

7.5%

16.3%

Native Hawaiian/Other Pacific Islander

0.3%

0.2%

Two or more Races/Ethnicities

1.7%

2.9%


122
58. As a consequence, and ineluctably, the number of racial minority students who are available to enter the legal profession is depressed.


  1. Licensing and Accreditation Burdens

59. Licenses to practice law are primarily granted at the state level, with each state’s highest court typically controlling admissions practices in the state. The federal government oversees licensing, however, in that the federal government, through the Department of Education, controls accreditation of law schools. In most states, only graduates of accredited law schools are eligible to become licensed to practice law. Since the mid-twentieth century, the Department of Education has approved the Council of Legal Education and Admissions to the Bar of the American Bar Association (the Council) as the recognized national agency for the accreditation of law schools. Thus the federal government grants the Council accrediting authority, and the states use the Council’s accreditation process to establish standards of legal education to prepare for the practice of law.




  1. 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

60. Many scholars have linked the decreasing enrollment of African American students to over-reliance in law school admissions on the LSAT, a three-hour test on which white students receive higher scores than members of other racial groups. To achieve accreditation by the Council, a law school is required to use a “valid and reliable” admissions test, and the LSAT is the only one presumptively approved. In 2005 the Council rejected proposed revisions to the accreditation standards that would have prohibited the use of discriminatory admissions tests. Rather than questioning this refusal to address the discriminatory impact of its admissions standards, the United States Department of Education took the opposite tack in its review of the Council as the accrediting agency for U.S. law schools, challenging the Council’s standard requiring law schools to take concrete actions toward diversity.




  1. 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

61. The examinations used by most states for licensing to practice law have dramatic racial disparities in passage rates. The only national study of bar passage rates established that, for first time test takers, Whites passed at 91.93%, Asian Americans at 80.76%, Mexican Americans at 75.88%, Puerto Ricans at 69.53%, American Indians at 66.36%, and Blacks at 61.40%. More recent data from New York shows continuing strong patterns of racial disparities. The first time passage rates for the July 2005 New York bar exam were 86.8% for Whites, 80.1% for Asians/Pacific Islanders, 69.6% for Hispanics/Latinos, and 54.0% for Blacks/African Americans. These figures are especially egregious in light of the limited relationship of bar exams to the skills necessary for the practice of law. Instead of using its oversight authority to address the problem that bar exams as currently administered operate as a significant bar to the profession for racial minorities, the Department of Education in the 2008 period took the opposite tack, pressuring the Council to revise its accreditation standards to give greater emphasis to bar passage rates.




  1. 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

62. The United States should be using its oversight authority to address the serious issues of under-representation of racial minorities in the legal profession and in law schools. Instead, in early 2007, the Department of Education challenged the Council’s standard for accreditation that requires law schools to “demonstrate by concrete action … a commitment to having a diverse student body.” The Council was threatened with loss of its accreditation authority unless it weakened its diversity standard related to admissions and increased the relevance of the discriminatory bar passage rates in law school accreditation. In addition, the United States Commission on Civil Rights, which also should be addressing the lack of students and attorneys of color, instead intervened in the accreditation question for the purpose of challenging affirmative action in law school admissions.


63. Since a new administration has been in place in 2009, private actors in the accreditation structure have taken up the efforts that were undertaken directly through the Department of Education in the prior Administration. At the initiative of the Council, pressure continued to increase required bar passage rates and further to eliminate requirements for tenure and security of position for law professors. The combined effect would be both a reduction of racial minorities in law school classrooms and a reduction of the presence of professors from racial minorities in the law school classroom. A concerted effort by a number of private organizations such as the Society of American Law Teachers and the Clinical Legal Education Association as well as the individual efforts of a diverse group of 635 law professors123 to strenuously object to these changes has for now slowed these efforts, but the final determination on any changes awaits the August 2014 meeting of the American Bar Association House of Delegates – the policymaking body above the Council.
64. At a minimum, and in the context of the abandonment of the highest court of our jurisdiction to adjudicate of its commitment to affirmative action, these types of efforts to hamper efforts at integration will continue in some manner at the public and private level for the foreseeable future. Thus, even in the accreditation process, the Department of Education and the Council in one or another Administration will be sources of pressure on law schools with the effect to reduce the admission of students of color even further, making a very serious problem even worse.


  1. Racial Minorities Surviving in a Legal Profession that is Overwhelmingly White

65. Using United States census data from 2000, the American Bar Association (ABA) has recognized that “minority representation in the legal profession is significantly lower than in most other professions.” Specifically, the ABA reports that minority representation among lawyers is about 9.7 percent, “compared to 20.8 percent among accountants and auditors, 24.6 percent among physicians and surgeons, and 18.2 percent among college and university teachers.”124 Although minority participation in the legal profession increased dramatically between 1970 and 2000, minority entry into the profession has slowed to an alarming extent since then. The African American law school admissions figures increased in 2006, but in 2005 African American enrollment in law school had dropped more than 10% from the previous year. In fact, African American enrollment in 2005 was at its lowest point since 1990 – a fifteen-year low. Mexican American enrollment in law school dropped over 9% in 2005, standing at its lowest point since 1993. In fact, although a larger number of law schools and larger classes created an increase of approximately 4,000 more entering law students in 2005 than in 1992, there were actually fewer African American and Mexican American first year law students in the Fall 2005 class (3595 combined) than existed in Fall 1992 (3937).125


66. The direct effect of these alarming numbers is the underrepresentation of racial minorities in the legal profession as shown for lawyers and the judiciary as in 2011 as compared to the 2010 Census.
Impact of the Pipeline on the Legal Profession

Source: ABA Lawyer Demographics126





Group

Lawyer Data % (Source: ABA)

Population (2010 Census)

White

88.1%

56.1%

Asian

3.4%

4.8%

Black

4.8%

12.6%

Hispanic

3.7%

16.3%

Pacific Islander

No data

0.2%

Native American

No data

0.9%

Other Minorities

No data

6.2%

Two or More Races

No data

2.9%

Impact of the Pipeline on the Judiciary

Source: ABA Lawyer Demographics127


Group

Lawyer Data % (Source: ABA)

Population (2010 Census)

White

87.8%

56.1%

Asian/Pacific Islander

1.3%

5.0%

Black

6.5%

12.6%

Hispanic

3.5%

16.3%

Native American

0.11%

0.9%

Other Minorities

0.77%

9.1%

Totals

100%

100%

67. Moreover, as lawyers occupy critical leadership positions and engage in policymaking impacting all communities (lawyers represent 100 % of judges, 58% of U.S. Senators, 37% of U.S. Representatives, 40% of Governors of States, 50% of Presidents, and 11% of Chief Executive Officers of major corporations), the underrepresentation of racial minorities in this pathway to these types of positions undermines meaningful participation of racial minorities in governance.128 A recent study has shown a dearth of minorities in the 50 state judiciaries whatever the level, part of which may be the result of many state judges being subject to the voting concerns (described above) in those states that elect as opposed to appoint.129 A similar dearth of minority judges is noted in the federal judiciary in which the federal judicial nomination process is a contentious process, particularly for minority and women candidates.130 Even confirmation in an Executive Department Civil Rights position is fraught with animus against a nominee with a strong civil rights background.131 As to legal academia, a recent study shows the dearth of minorities in U.S. legal academia generally.132

Law Faculty, by Race, AALS 2008-2009 (N=10,965)133





Am.Ind. or Alask. Nat.

Asian or Pacific Islander

Black/African American

Hispanic/Latino

White

Other race

More than one race

Race/ethnicity is not identified

Total

Number

51

270

753

337

7831

101

120

1502

10965

%

.5%

2.5%

6.9%

3.1%

71.4%

.9%

1.1%

13.7%

100.0%

US perc (2010 Census)

0.9%

5.0%

12.6%

16.3%

56.1%

9.1%*

*

*

100.0%

*9.1 % may include other race, more than one race, and some of the race/ethnic not identified


68. Recent studies have attempted to go beyond the type of overt or explicit racial discrimination traditionally addressed by equality laws to better understand what has been termed implicit bias and stereotype threat. Drawn from work in neuroscience, these studies attempt to identify implicit social cognitions that tend to mirror the social hierarchies leading to more negative stereotyping of racial minorities. These studies also attempt to understand how negative expectations are communicated and internalized by racial minorities in manners that result in lower performance.134
69. One study that brought out negative stereotypes and confirmation of bias among law partners provided an identical research memorandum for review by partners with the only difference in the identification of the author as being African-American or White. The exact same memorandum averaged a 3.2/5.0 rating under the hypothetical “African American” and a 4.1/5.0 rating under the hypothetical “Caucasian.”135
70. Another broader study attempted to capture these types of implicit bias against women and racial minorities, as little is known as to how such bias varies within and between organizations or how it manifests before individuals formally apply to organizations. The authors addressed this knowledge gap through an audit study in academia of over 6,500 professors at top U.S. universities drawn from 89 disciplines and 259 institutions. The authors hypothesized that discrimination would appear at the informal “pathway” preceding entry to academia and would vary by discipline and university as a function of faculty representation and pay. In their experiment, professors were contacted by fictional prospective students seeking to discuss research opportunities prior to applying to a doctoral program. Names of students were randomly assigned to signal gender and race (Caucasian, Black, Hispanic, Indian, Chinese), but messages were otherwise identical. The authors found that faculty ignored requests from women and minorities at a higher rate than requests from White males, particularly in higher-paying disciplines and private institutions. Counter-intuitively, there was no correlations between the gender or race of the faculty member and her or his response to the request, suggesting that greater representation cannot be assumed to reduce bias. This research highlights the importance of studying what happens before formal entry points into organizations and reveals that discrimination is not evenly distributed within and between organizations.136
71. In addition, recent analysis of civil racial discrimination claims in employment suggests that the ostensibly neutral rules of standing under recent Supreme Court jurisprudence have had a particularly devastating impact on civil claims of racial discrimination progressing beyond the initial stages in the judicial system.137 Put another way, our modest civil remedial mechanisms138 for racial discrimination in the workplace are weakened by procedural burdens, including arbitration.139 The need for legal representation and remedial measures remains strong.140
72. As continuing explicit expressions of bias141 coupled with the above examples demonstrate, it is patently clear that 60 years after the decision in Brown vs. Board of Education outlawed separate but equal, the United States remains a society deeply riven by race and racial discrimination. Thus the United States’ accelerating retreat from addressing that racial discrimination in the legal profession places it in material breach of its obligations under the ICERD.
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



  1. Violations of Convention Obligations

73. The United States is in material breach of the following obligations.


74. Article 1
1. In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
75. Comment: As described in Sections II-V above, numerous material breaches amounting to “racial discrimination” as here defined have been demonstrated by the United States federal, state and local authorities through public and private means with the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
76. Article 1
4. Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.
77. Comment: The categorical retreat from special measures such as race-conscious affirmative action by the United States Supreme Court in its decisions in the past 7 years in the Parents, Fisher, and Schuette cases, the restrictions by several states of race-conscious affirmative action prior to any of the objectives of such race-conscious affirmative action being achieved, and property-tax based local financing that enshrines market based discrimination in property values are clear material breaches of the United States obligations.
78. Article 2
1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end: (a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to en sure that all public authorities and public institutions, national and local, shall act in conformity with this obligation;
(b) Each State Party undertakes not to sponsor, defend or support racial discrimination by any persons or organizations;
(c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;
(d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization;
(e) Each State Party undertakes to encourage, where appropriate, integrationist multiracial organizations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division.
2. States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case en tail as a con sequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.
79. Comment: Even in our system of separation of powers and federalism, this obligation falls upon the entire United States. For the reasons described in Section II-V above, the purposive and effective results of federal, state and local public and private actions by the United States are to place the United States in material breach of these obligations.
80. Article 3
States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.
81. Comment: Through the preservation of a property-tax-based system of financing of education that enshrines a market-based system of private discrimination through increased valuation of housing based on absence of minorities, , the United States federal, state and local authorities are encouraging racial segregation and apartheid. Through the gathering of racial minorities into segregated and poorer schools with weaker teachers, the United States is perpetuating academic racial segregation and academic apartheid. Through the tracking of racial minority students into non-college preparatory coursework at these inferior schools, the United States is perpetuating academic racial segregation and academic apartheid. Through its countenancing of for profit schools, whether through charter schools, or at the college level, that siphon precious public funding, the United States is perpetuating racial segregation and apartheid. Through its abandonment of special measures to combat these disparities, the United States is perpetuating racial segregation and apartheid across America.
82. Article 5
In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:
(a) The right to equal treatment before the tribunals and all other organs administering justice;
83. Comment: Through the barriers to the legal profession for racial minorities described above that diminish the ability of racial minorities to participate in the legal system as judges, lawyers and political figures, the United States is in breach of this obligation.
84. (b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution;
(c) Political rights, in particular the right to participate in elections-to vote and to 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 at any level and to have equal access to public service;
85. Comment: Through the abandonment of voting rights in the Shelby County decision and the enshrining of state level racial minority disenfranchisement through legislative restrictions on voting and referenda based banning of race-conscious affirmative action, the United States is in material breach of this obligation.
86. (d) Other civil rights, in particular:
(i) The right to freedom of movement and residence within the border of the State;
87. Comment: Through the countenancing of property tax based financing of education together with the enshrining of a market based system of premium valuations tied to the absence of racial minorities, the United States is in material breach of this obligation.
88. (v) The right to own property alone as well as in association with others;
89. Comment: Through the countenancing of property tax based financing of education together with the enshrining of a market based system of premium valuations tied to the absence of racial minorities, the United States is in material breach of this obligation.
90. (vi) The right to inherit;
(vii) The right to freedom of thought, conscience and religion;
(viii) The right to freedom of opinion and expression;
(ix) The right to freedom of peaceful assembly and association;
(e) Economic, social and cultural rights, in particular:
(i) The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration;
(ii) The right to form and join trade unions;
91. Comment: Through the concerted effort to eradicate public sector unions through the formation of charter schools funded by public funds that are worse or only equal to traditional public schools in terms of the quality of education provided to racial minorities, the United States is in material breach of this obligation.
92. (iii) The right to housing;
93. Comment: Through the countenancing of property tax based financing of education together with the enshrining of a market based system of premium valuations tied to the absence of racial minorities, the United States is in material breach of this obligation.
94. (iv) The right to public health, medical care, social security and social services;
95. (v) The right to education and training;
96. Comment: Through the countenancing of property tax-based-financing of education together with the enshrining of a market based system of premium valuations tied to the absence of racial minorities, the United States is in material breach of this obligation. As seen in regional human rights jurisprudence, legal regimes that have the effect of disproportionately impacting racial minority participation in primary education violate the right to education and protection from non-discrimination.142
97. Article 6
States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.

98. Comment: Through the abandoning of voting rights protections and race-conscious affirmative action, the United States is in material breach of its obligation to provide effective protection and remedies.


99. Article 7
States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnical groups, as well as to propagating the purposes and principles of the Charter of the United Nations, the Universal Declaration of Human Rights, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, and this Convention.
100. Comment: Through the licensing and accreditation structure of public and private authority over law schools and the acquiescence of law schools to market based criteria for competition that do not take sufficiently into account the requirements for diversity in legal education and the educational pipeline that proceeds legal education, the United States is in material breach of its obligations.
B. Violations of Obligations undertaken in the U.S. Reservations Understandings and Declarations
101. Upon signature:
"The Constitution of the United States contains provisions for the protection of individual rights, such as the right of free speech, and nothing in the Convention shall be deemed to require or to authorize legislation or other action by the United States of America incompatible with the provisions of the Constitution of the United States of America."
102. Comment: As was recently noted in another setting by the US Department of State Legal Advisor:
Most famously, the Supreme Court has long held that "an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.'' Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804). In the area of treaty interpretation, the Supreme Court has long noted that it is "bound to observe [treaties] with the most scrupulous good faith.'' The Amiable Isabella, 19 U.S. (6 Wheat.) 1, 68 (1821); see also Chew Heong v. United States, 112 U.S. 536, 540 (1884) ("Treaties of every kind ... are to receive a fair and liberal interpretation, according to the intention of the contracting parties, and are to be kept in the most scrupulous good faith.'') (internal quotation marks omitted). The Court has also repeatedly reaffirmed that it gives "considerable weight" in interpreting treaties to the "opinions of our sister signatories." Abbott v. Abbott, 130 S. Ct. 1983, 1993 (20 1 0).In the area of treaty interpretation, the Supreme Court has long noted that it is "bound to observe [treaties] with the most scrupulous good faith.'' The Amiable Isabella, 19 U.S. (6 Wheat.) 1, 68 (1821); see also Chew Heong v. United States, 112 U.S. 536, 540 (1884) ("Treaties of every kind ... are to receive a fair and liberal interpretation, according to the intention of the contracting parties, and are to be kept in the most scrupulous good faith.'') (internal quotation marks omitted). The Court has also repeatedly reaffirmed that it gives "considerable weight" in interpreting treaties to the "opinions of our sister signatories." Abbott v. Abbott, 130 S. Ct. 1983, 1993 (20 1 0).”143
103. Yet, the U.S. Supreme Court, in its most recent decisions in Parents, Fisher, Schuette and Shelby County pronouncing its retreat from the obligations of the International Convention on the Elimination of All Forms of Racial Discrimination, did not deign to meaningfully analyze the implications of its reasoning in the context of its own treaty decisional law. Its insufficient decision-making without meaningful consideration for the ICERD obligations is at a minimum inconsistent with its decisional law espousing respect for treaties and sister signatories whatever the nature of the treaty and whatever the reservations, understandings, and declarations stated by the United States. In a matter of such seriousness as elimination of all forms of racial discrimination addressing some of the highest norms of the international system, this glaring lack of reasoning raises the question of whether this apex of the jurisdiction to adjudicate as the highest source of the Judicial Power under our Constitution failed to address these obligations in accordance with the United States international obligation to perform its treaty obligations in good faith.
104. Upon ratification:
I. The Senate's advice and consent is subject to the following reservations:

  1. That the 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.




  1. That the 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.

105. Comment: Similar to the analysis above, the insufficient analysis, if at all, in the stated cases by the U.S. Supreme Court of the treaty implications of the public acts (or private acts countenanced by public private acts) with the purpose or effect of perpetuating racial discrimination in its recent jurisprudence retreating from the clear obligations of the ICERD demonstrates indifference to the international implications of its domestic jurisprudence in the arena of the elimination of all forms of racial discrimination. This deformity in the manner of reasoning of the U.S. Supreme Court is of great concern as it suggests that ordinary U.S. citizens and most particularly those racial minorities most vulnerable to oppression cannot be assured of a Supreme Court that takes seriously the United States’ obligations freely entered into in our Constitutional system.


106. (3) That with 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.
II. The Senate's advice and consent is subject to the following understanding, which shall apply to the obligations of the United States under this Convention:
That the 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 fulfilment of this Convention.
107. Comment: Similar to the analysis above, under the separation of the powers of the Federal Government, the insufficient analysis, if at all, in the stated cases by the U.S. Supreme Court of the treaty implications of the public acts (or public acts that countenance private acts) with the purpose or effect of perpetuating racial discrimination in its recent jurisprudence retreating from the clear obligations of the ICERD demonstrates indifference to the international obligations undertaken by the Senate in ratifying and depositing the above understanding. The obligation undertaken by the Federal Government to implement the treaty to the extent that it exercises jurisdiction over the matters and to take appropriate measures to ensure the fulfillment of this Convention to the extent that state and local governments exercise jurisdiction over such matters are in no manner fully fleshed out in the recent United States Supreme Court decisional law of retreat from the obligations under the ICERD. This deformity in the manner of reasoning of the U.S. Supreme Court is of great concern as it suggests that ordinary U.S. citizens and most particularly those racial minorities most vulnerable to the oppression of racial discrimination cannot be assured of a Supreme Court that takes seriously the United States’ obligations freely entered into in our Constitutional system nor the obligations freely accepted by the Federal Government through the ratification by the Senate.
108. III. The Senate's advice and consent is subject to the following declaration:
That the United States declares that the provisions of the Convention are not self-executing.
109. Comment: Similar to the analysis above, that the United States Supreme Court as the judicial arm of the Federal Government, in its retreat from the ICERD obligations in its most recent jurisprudence insufficiently, if at all, addressed these international obligations declared non-self-executing in a manner at least as clear as it was in Medellin is of great concern. This deformity in the manner of reasoning of the U.S. Supreme Court is of great concern as it suggests that ordinary U.S. citizens and most particularly those racial minorities most vulnerable to oppression cannot be assured of a Supreme Court that takes seriously the United States’ obligations freely entered into in our Constitutional system nor the obligations freely accepted by the Federal Government through the ratification by the Senate.
110. For the above reasons, whether in terms of the treaty obligations as written and even when made subject to the U.S. reservations, understandings and declarations, our concern is with the inability of all levels of U.S. federal power (Executive, Legislative and Judiciary) and through federalism (Executive, Legislative and Judiciary at the state level) to meaningfully assure progress in elimination of all forms of racial discrimination. On the contrary, the impression by federal, state and local actors of a public and private nature in the United States is we are on a path to a new form of separate but equal in a post-Brown period that might be described as equal but separate in a U.S. form of apartheid.



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