U.N. Committee for the Elimination of Racial Discrimination
on the occasion of its review of the
Periodic Report of the United States of America
Prepared by: Stephen Menendian, Marguerite Spencer, Lidija Knuth, john powell, Sara Jackson, Fran Fajana, Andrew Grant-Thomas, Jason Reece, Eva Paterson, and Kimberly Rapp.
I. Executive Summary As a signatory to the Convention on the Elimination of Racial Discrimination (CERD),1 the United States is under an obligation to condemn and pursue a policy of eliminating racial discrimination, in all its forms (art. 2, ¶1). The U.S. has not taken seriously the duty under Article 2 of CERD to affirmatively address racial discrimination. Instead, the U.S. has rationalized racial discriminatory effects as not covered by U.S. law. Sometimes these effects are caused by explicit government polices. At other times they are caused by private actors. Frequently, it is a combination of both.
The Convention defines racial discrimination (art. 1, ¶1) to mean distinctions, exclusions, restrictions or preferences based on race which have “the purpose or effect” of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in any field of public life. CERD’s definition of discrimination is unequivocal: effects and racially disparate outcomes caused by individual action or government practices or policies, singularly or collectively, are of primary concern.
Contrary to CERD, U.S. law defines racial discrimination more narrowly in at least two critical respects. First, with few exceptions U.S. law narrowly defines cognizable racial discrimination by requiring evidence of intent to discriminate. Section II demonstrates that such a requirement is contrary to the framework of CERD and does not reflect the real-world operation of discriminatory behavior in contemporary American society. As recognized by CERD, discrimination can be the product of facially race neutral polices and practices as well as unintentional action and inaction of individuals. This observation is not controversial and yet fails to be robustly recognized in U.S. law.
Second, U.S. law fails to recognize that racial discrimination in American society often arises from the interactions, both public and private, over time and across domains. Section III details how racial discrimination manifests itself in these ways and argues that to correct for unjustifiable and cumulative racial impacts, U.S. courts and policy makers must adopt an inter-institutional perspective. Although Article 1 and General Recommendation XIV of CERD are concerned with racially disparate effects of policies and practices involving this intersectionality, U.S. courts have been increasingly reluctant to redress discrimination in one domain that is caused by interactions in other domains. The definition of discrimination under CERD also extends to private as well as public action. Although the U.S. has reserved to the Convention with respect to the regulation of private conduct beyond what is required under domestic law, the United States is responsible for addressing unjustifiable racial impacts that result from the interaction of public and private actions.
Section IV of the report outlines the duty of all U.S. Government authorities to act in conformity with and to take affirmative measures to meet the requirements under CERD (art.2). Although the U.S. complies with laws that satisfy many of CERD’s mandates, it is increasingly backing away from affirmative measures to remedy racialized outcomes two ways.
First, compliance with Article 2 requires the United States to pursue by all appropriate means and without delay a policy of eliminating racial discrimination. Decision-making authority, however, is highly fragmented in the United States, which has important implications for racial equity. Institutional actors are often unable to disrupt racialized outcomes that stem from policies across domains. Well-intentioned institutional actors in one domain, such as education, can work at cross-purposes with actors in another domain, such as criminal justice, exacerbating conditions for communities of color. Furthermore, without formal coordination, various government authorities are less effective in preventing and responding to racialized disasters such as Hurricanes Katrina and Rita. Therefore, Article 2 requires that the United States enhance coordination among federal branches of government and state and local governing bodies.
Second, although the Committee emphasized that the adoption of special measures in cases of persistent disparities are an obligation of the state,2 the U.S. has attempted to rationalize policy-based discrimination as resulting from conditions beyond its control, either private decision making or courts interpreting U.S. laws.3 For example, the U.S. federal government most recently argued for, and the Supreme Court ruled in favor of, the elimination of race-conscious student assignment policies in elementary and secondary education, despite a finding that the government had a compelling interest in addressing racial isolation.4 The Court not only failed to remedy the harmful effects of racial discrimination, it severely limited the capacity of other governmental entities to voluntarily address them. By adopting this “color-blind” approach, both the executive and judicial branches of government exacerbate the effects of discriminatory practices and policies, thwarting integration efforts of local governing bodies in violation of
Subsequent sections of this report draw attention to the many discrete areas in which the U.S. is failing to uphold its obligations under the Treaty. This section emphasizes the need to bring U.S. law in alignment with framework envisioned in CERD in order to effectively address racial discrimination and promote and sustain genuine multi-racial, multi-ethnic integration.