Elimination of Racial Discrimination

Elimination of Racial Discrimination

Periodic Report of the United States to the Committee on the Elimination of Racial Discrimination in 2013

United States views on international law [1] in relation to Periodic Report of the United States to the Committee on the Elimination of Racial Discrimination: On June 12, 2013, the United States submitted its Periodic Report to the United Nations Committee on the Elimination of Racial Discrimination Concerning the International Convention on the Elimination of All Forms of Racial Discrimination (“CERD”). As explained in the introduction to the report, the United States submitted its initial, second, and third periodic reports in September 2000 as one document (“Initial Report”) and submitted its fourth, fifth, and sixth period reports as one document in April 2007 (“2007 Report”). See this world legal encyclopedia (in relation to issues that took place in the year 2000) at 347-50 and this world legal encyclopedia (in relation to issues that took place in the year 2007) at 293-315. The United States submitted a one-year follow-up report on January 13, 2009. The 2013 submission responds to the Committee’s requests for the seventh, eighth, and ninth periodic reports of the United States and provides an update on progress since the submission of its prior reports. Excerpts below address selected legal issues regarding U.S. implementation of CERD since 2008. The full report is available at (Secretary of State website) state.gov/j/drl/rls/cerd_report/210605.htm.

Some Aspects of Periodic Report of the United States to the Committee on the Elimination of Racial Discrimination

2. The United States has always been a multi-racial and multi-ethnic society, and its pluralism is increasing. We have 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. Indeed, fifty years ago, the idea of having a Black/African American President of the United States would not have seemed possible; today, it is a reality. We recognize, however, that 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. Our nation’s Founders, who enshrined in our Constitution their ambition “to form a more perfect Union,” bequeathed to us not a static condition, but a perpetual aspiration and mission. This Report shares our progress in implementing our undertakings under the CERD and on related measures to address racial discrimination.

Developments

6. … [T]here are cases where we may not agree with the legal or factual premises underlying a given request for information or where concluding observations do not bear directly on obligations under the Convention; nevertheless, in the interest of promoting dialogue and cooperation, we have provided requested information to the degree possible. …

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16. The United States legal system provides for special measures when circumstances so warrant. …Recently, DOJ actively defended the undergraduate admission program of the University of Texas, which was challenged by two unsuccessful White candidates for undergraduate admission. The Texas program adopts a holistic approach—examining race as one component among many—when selecting among applicants who are not otherwise eligible for automatic admission by virtue of being in the top ten percent of their high school classes. The U.S. Court of Appeals for the Fifth Circuit upheld the University’s limited use of race as justified by a compelling interest in diversity and as narrowly tailored to achieve a critical mass of minority students. The Supreme Court heard arguments in the case, Fisher v. Texas, in October 2012, and is expected to decide the case by June 2013. In its amicus curiae brief, the Solicitor General argued, on a brief signed by several federal agencies, that, like the University, the United States has a compelling interest in the educational benefits of diversity, and that the University’s use of race in freshman class admissions to achieve the educational benefits of diversity is constitutional.

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18. Recent laws relating to discrimination, including discrimination based on race, color, and national origin, or minority groups, include: • The Lilly Ledbetter Fair Pay Act, signed by President Obama in 2009, provides that the statute of limitations for bringing a wage discrimination claim, including claims alleging wage discrimination based on race or national origin, runs from the time an individual is “affected by application of a discriminatory compensation decision . . . including each time wages, benefits, or other compensation is paid.” The law overrides a Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co., 500 U.S. 618 (2007). • The Genetic Information Nondiscrimination Act of 2008 governs the use of genetic information in health insurance and employment decisions. Protected genetic information includes genetic services (tests, counseling, education), genetic tests of family members, and family medical history. As it relates to racial and ethnic discrimination, this law prohibits an insurer or employer from refusing to insure or employ someone with a genetic marker for disease associated with certain racial or ethnic groups, such as sickle cell trait. • The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 (Shepard-Byrd Act) creates a new federal prohibition on hate crimes, 18 U.S.C. 249; simplifies the jurisdictional predicate for prosecuting violent acts undertaken because of, inter alia, the actual or perceived race, color, religion, or national origin of any person; and, for the first time, allows federal prosecution of violence undertaken because of the actual or perceived gender, disability, sexual orientation or gender identity of any person. • The American Recovery and Reinvestment Act of 2009 provided funding for programs that will help reduce discrimination and improve the lives of members of minority populations through education, training, and programs to end homelessness. • The Patient Protection and Affordable Care Act (ACA) of 2010 provides many Americans access to health insurance. Section 1557 extends the application of federal civil rights laws to any health program or activity receiving federal financial assistance, any program or activity administered by an executive agency, or any entity established under Title 1 of the ACA.

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• The Tribal Law and Order Act of 2010 gives tribes greater authority to prosecute and punish criminals; expands recruitment, retention, and training for Bureau of Indian Affairs (BIA) and tribal officers; includes new guidelines and training for domestic violence and sex crimes; strengthens tribal courts and police departments; and enhances programs to combat drug and alcohol abuse and help at-risk youth. • The Claims Resolution Act of 2010 provides funding and statutory authorities for settlement agreements reached in the In re Black Farmers Discrimination Litigation (brought by Black/African American farmers who filed late claims in an earlier case concerning discrimination by the U.S. Department of Agriculture (USDA) in the award and servicing of farm loans), and also for several settlement agreements reached with regard to indigenous issues – the Cobell lawsuit (alleging U.S. government mismanagement of individual Indian money accounts), and four major Native American water rights cases. • The Fair Sentencing Act of 2010 reduces sentencing disparities between powder cocaine and crack cocaine offenses, capping a long effort to address the fact that those convicted of crack cocaine offenses are more likely to be members of racial minorities. • The financial reform legislation of 2010 includes a new consumer protection bureau that will help address the unjustified disproportionate effect of the foreclosure crisis on communities of color. • The Violence Against Women Reauthorization Act of 2013, signed by President Obama in March of this year, reauthorizes critical grant programs created by the original Violence Against Women Act (VAWA) and subsequent legislation, establishes new programs, and strengthens federal laws. Section 3 prohibits discrimination on the basis of, inter alia, actual or perceived race or national origin in any VAWA-funded program or activity.

Periodic Report of the United States to the Committee on the Elimination of Racial Discrimination in 2013 (Continuation)

United States views on international law [1] in relation to Periodic Report of the United States to the Committee on the Elimination of Racial Discrimination: 32. With regard to the recommendation in paragraph 13 of the Committee’s Concluding Observations that the United States establish appropriate mechanisms to ensure a coordinated approach towards the implementation of the Convention at the federal, state, and local levels, the United States fully agrees that mechanisms designed to strengthen coordination are critical, and numerous such mechanisms do exist. The framework within which human rights are promoted and coordinated in the United States is described in paragraphs 124 – 130 of the Common Core Document. All federal agencies with mandates related to non-discrimination, including DOJ, EEOC, ED, HUD, DHS, DOL and others, coordinate within the federal government, as well as with state and local authorities, human rights commissions, and non-governmental entities. For example, a hallmark of DOJ’s civil rights work in this Administration is partnership and collaboration – strengthening relationships with other agencies, state Attorney General offices throughout the nation, and community and civil society partners to leverage resources and coordinate efforts to maximize impact. DOJ/CRT coordinates enforcement of Title VI of the Civil Rights Act of 1964 and assists other agencies with Title VI and other enforcement responsibilities, ensuring that recipients of federal financial assistance (including state and local governments) do not discriminate in their programs, including on the basis of race, color and national origin. Over the last four years, DOJ has provided training, technical assistance, and counsel to civil rights offices in federal government agencies, and has reviewed other agencies’ Title VI implementing regulations and guidance. DOJ has also created a Title VI Interagency Working Group, which facilitates interagency information sharing to strengthen Title VI enforcement efforts at the federal level. Additionally, several of the UPR Working Groups and the Equality Working Group were created with a view to further strengthening coordination and U.S. domestic implementation of human rights treaty obligations and commitments related to non-discrimination and equal opportunity.

More about Periodic Report of the United States to the Committee on the Elimination of Racial Discrimination

47. With regard to Article 4 and paragraph 18 of the Committee’s Concluding Observations, the United States is deeply committed to combating racial discrimination. The United States has struggled to eliminate racial discrimination throughout our history, from abolition of slavery to our civil rights movement. We are not at the end of the road toward equal justice, but our nation is a far better and fairer place than it was in the past. The progress we have made has been accomplished without banning speech or restricting freedom of expression, assembly or association. We believe that banning and punishing offensive and hateful speech is neither an effective approach to combating intolerance, nor an appropriate role for government in seeking to promote respect for diversity. As President Obama stated in a speech delivered in Cairo, Egypt in June 2009, suppressing ideas never succeeds in making them go away. In fact, to do so can be counterproductive and even raise the profile of such ideas. We believe the best antidote to offensive and hateful speech is constructive dialogue that counters and responds to such speech by refuting it through principled arguments. In addition, we believe that governments should speak out against such offensive speech and employ tools to address intolerance that include a combination of robust legal protections against discrimination and hate crimes, proactive government outreach, education, and the vigorous defense of human rights and fundamental freedoms, including freedom of expression. It is incumbent upon both governments and members of society to model respect, welcome diversity of belief, and build respectful societies based on open dialogue and debate. 51. Consistent with the First Amendment, we do not permit speech that incites imminent violence. This is a limited exception to freedom of expression, and such speech is only unlawful when it “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). Speech may also be restricted based on its content if it falls within the narrow class of “true threats” of violence. Moreover, numerous federal and state laws in the United States prohibit hate crimes. Federal statutes punish acts of violence or hostile acts motivated by bias based on race, ethnicity, or color and intended to interfere with the participation of individuals in certain activities such as employment, housing, public accommodation, and use of public facilities. See, e.g., 19 U.S.C. 245 (federally protected activities), 18 U.S.C. 3631 (housing). In addition, 47 states have hate crimes laws, as do U.S. territories. The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act is a significant expansion of federal hate crimes laws. The Act creates a new criminal code provision, 18 U.S.C. 249, that criminalizes the willful causing of bodily injury (or attempting to do so with fire, firearm, or other dangerous weapon) when the crime was committed because of the actual or perceived race, color, religion, national origin of any person and that, unlike Section 245, does not require proof of intention to interfere with a federally protected activity. The law also provides funding and technical assistance to state, local and tribal jurisdictions to help them prevent, investigate, and prosecute hate crimes. Subsequent to enactment of the Shepard-Byrd Act, DOJ/CRT worked with U.S. Attorneys’ Offices, the Federal Bureau of Investigation (FBI), and DOJ/CRS across the country to ensure that federal prosecutors, federal law enforcement agents, state and local law enforcement officers, nongovernmental organizations, and interested members of the public were trained on the Act’s requirements. Of particular importance, DOJ/CRT has trained law enforcement officers who are the first responders to assaults or other acts of violence so that they know what questions to ask and what evidence to gather at the scene to allow prosecutors to make an informed assessment of whether a case should be prosecuted as a hate crime.

Development

62. Regarding paragraph 22 of the Committee’s Concluding Observations, the United States faces challenges in both its provision of legal representation to indigent criminal defendants and its provision of free and affordable civil legal services to the poor and middle class. We recognize that these challenges are felt acutely by members of racial and ethnic minorities. 63. To address these issues, DOJ established the Access to Justice Initiative (ATJ) in March 2010. ATJ’s mission is to help the justice system efficiently deliver outcomes that are fair and accessible to all, irrespective of wealth and status. ATJ has worked to expand research and funding to improve the delivery of indigent defense services. In 2012, DOJ’s Office of Justice Programs awarded nearly million in grants for this purpose and has committed to approximately million additional in 2013. ATJ has also worked to strengthen defender services in tribal courts and, in partnership with the BIA, has launched the Tribal Court Trial Advocacy Training Program, which provides free trainings to public defenders, prosecutors, and judges who work in tribal courts.

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64. To strengthen civil legal services, ATJ is working with other federal agencies to determine whether existing federal safety-net grant programs could perform more successfully by incorporating legal services. Specifically, ATJ staff has established partnerships with agencies working to promote access to health and housing, education and employment, and family stability and community well-being, to remove unintended barriers that prevent legal aid providers from participating as grantees or sub-grantees. ATJ also supports expanded civil legal research through collaboration with legal scholars and the American Bar Foundation. ATJ is providing technical assistance to more than a dozen states considering creation of new access to justice commissions, which generally support civil legal services at the state level. Responding to a challenge from ATJ, the Conference of Chief Justices unanimously adopted a resolution in 2010 urging the approximately two dozen states without active commissions to establish them, https://ccj.ncsc.dni.us/AccessToJusticeResolutions/resol8Access.html. ATJ staff has also worked with the American Bar Association (ABA) Resource Center for Access to Justice Initiatives, and the Public Welfare Foundation to develop a national strategy for establishing and strengthening commissions, and ATJ staff now serves on a new national ABA Access to Justice Commission Expansion Project Advisory Committee.

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66. With regard to paragraph 20 of the Committee’s Concluding Observations, a number of steps have been taken in recent years to address racial disparities in the administration and functioning of the criminal justice system. The Fair Sentencing Act, enacted in August 2010, reduced the disparity between more lenient sentences for powder cocaine charges and more severe sentences for crack cocaine charges, which are more frequently brought against minorities. Based on a request by the Attorney General, the Sentencing Commission voted to apply retroactively the guideline amendment implementing the Fair Sentencing Act. As of December 2012, 6,626 federal crack offenders’ sentences had been reduced as a result of retroactive application of the Fair Sentencing Act. Of these, 93.5% were Black/African American or Hispanic/Latino. DOJ also intends to conduct further statistical analysis and issue annual reports on sentencing disparities in the criminal justice system, and is working on other ways to implement increased system-wide monitoring steps. DOJ has also pledged to work with the Sentencing Commission on reform of mandatory minimum sentencing statutes and to implement the recommendations set forth in the Commission’s 2011 report to Congress, Mandatory Minimum Penalties in the Federal Criminal Justice System. Finally, at the state and local level, many law enforcement authorities are implementing innovative solutions. For example, the Vera Institute for Justice has launched a program in several municipalities to help prosecutors’ offices identify potential bias and to respond when bias is found.

Application of the International Convention on the Elimination of All Forms of Racial Discrimination

Embracing mainstream international law, this section on application of the international convention on the elimination of all forms of racial discrimination explores the context, history and effect of the area of the law covered here.

Resources

Further Reading

  • The entry “application of the international convention on the elimination of all forms of racial discrimination” in the Parry and Grant Encyclopaedic Dictionary of International Law (currently, the Encyclopaedic Dictionary of International Law, 2009), Oxford University Press

Resources

Notes

  1. Periodic Report of the United States to the Committee on the Elimination of Racial Discrimination in Digest of United States Practice in International Law
  • Resources

    Notes

    1. Periodic Report of the United States to the Committee on the Elimination of Racial Discrimination in Digest of United States Practice in International Law

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