THE CONVENTION ON THE ELIMINATION

OF ALL FORMS OF RACIAL DISCRIMINATION

***

INITIAL REPORT OF THE

UNITED STATES OF AMERICA

to

THE UNITED NATIONS COMMITTEE ON

THE ELIMINATION OF RACIAL DISCRIMINATION

September 2000
CONTENTS

Page

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

PART I - GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

A. Land and People . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

B. General Political Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

C. General Legal Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

D. Information and Publicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

E. Factors Affecting Implementation . . . . . . . . . . . . . . . . . . . . . . . 17

PART II - IMPLEMENTATION OF SPECIFIC ARTICLES . . . . . . . . 20

A. Prohibition of Racial Discrimination . . . . . . . . . . . . . . . . . . . . . 20

1. U.S. Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

2. Federal Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

3. Federal Executive Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

4. State Anti-Discrimination Measures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

B. Reservations, Understandings, Declarations . . . . . . . . . . . . . . . . . 33

1. Freedom of Speech, Expression, Association . . . . . . . . . . . . . . . . . . . . . . . . 34

2. Private Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

3. Dispute Settlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

4. Federalism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

5. Non-Self-Executing Treaty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

C. Specific Articles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Article 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Article 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Article 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Article 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

Article 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

Article 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

Article 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

D. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

Annex I Reservations, Understandings, Declarations I-1
INTRODUCTION

The Government of the United States of America welcomes the opportunity to report to the

Committee on the Elimination of Racial Discrimination on the legislative, judicial, administrative

and other measures giving effect to its undertakings under the Convention on the Elimination of All

Forms of Racial Discrimination, in accordance with Article 9 thereof. The form and content of this

Report follow the General Guidelines adopted by the Committee in July 1993 (CERD/C/70/Rev.3).

This Report has been prepared by the U.S. Department of State with extensive assistance

from the White House, the Civil Rights Division of the U.S. Department of Justice, the Equal

Employment Opportunity Commission, and other departments, agencies and entities of the United

States Government most closely concerned with the issues addressed by the Convention. 

Contributions were also solicited and received from interested members of the many nongovernmental organizations and other public interest groups active in the area of civil rights, civil

liberties and human rights in the United States. The Report covers the situation in the United States

through August 2000 and constitutes the initial report to the Committee.

The United States ratified the Convention on the Elimination of All Forms of Racial

Discrimination in October 1994, and the Convention entered into force for the United States on

November 20, 1994. In its instrument of ratification, which was deposited with the Secretary

General of the United Nations pursuant to Article 17(2) of the Convention, the United States

conditioned its ratification upon several reservations, understandings and declarations. These are

set forth at Annex I and discussed at the relevant portions of this Report. 

 Since June 17, 1997, the federal government has been engaged in a major review of

domestic race issues. On that date, the President established an “Initiative on Race” and authorized

creation of a seven-member Advisory Board to examine issues of race, racism and racial

reconciliation and to make recommendations on how to build a more united America for the 21st

Century. Executive Order No. 13050, 62 Fed. Reg. 32987 (June 17, 1997). The Advisory Board

submitted its report to the President on September 18, 1998. Based on its recommendations, the

Administration is proceeding to formulate specific proposals and plans for action. A copy of the

Initiative’s final report and a chart-book prepared for the President’s Initiative by the Council of

Economic Advisers entitled “Changing America: Indicators of Social and Economic Well Being by

Race and Hispanic Origin” (September 1998) are available at the White House web site: 

<<http:www.whitehouse.gov>>

Since 1992, the United States has also been a party to the International Covenant on Civil

and Political Rights, some provisions of which have wider application than those of the Convention

on the Elimination of All Forms of Racial Discrimination. The initial U.S. Report under the

Covenant, which provides general information, was submitted to the Human Rights Committee in

July 1994 (HRI/CORE/I/Add.49 and CCPR/C/81/Add.4). <http://www.state.gov> The United States

also ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment at the same time as it ratified the Convention on the Elimination of All Forms of Racial

Discrimination. The Initial U.S. Report under the Convention Against Torture was submitted to the
2

Committee Against Torture in September 1999 and is available on the Department of State web site,

<http://www.state.gov>.

Prior to ratifying the Convention on the Elimination of All Forms of Racial Discrimination,

the United States Government undertook a careful study of the requirements of the Convention in

light of existing domestic law and policy. That study concluded that U.S. laws, policies and

government institutions are fully consistent with the provisions of the Convention accepted by the

United States. Racial discrimination by public authorities is prohibited throughout the United States,

and the principle of non-discrimination is central to governmental policy throughout the country. The

legal system provides strong protections against and remedies for discrimination on the basis of race,

color, ethnicity or national origin by both public and private actors. These laws and policies have

the genuine support of the overwhelming majority of the people of the United States, who share a

common commitment to the values of justice, equality, and respect for the individual.

The United States has struggled to overcome the legacies of racism, ethnic intolerance and

destructive Native American policies, and has made much progress in the past half century.

Nonetheless, issues relating to race, ethnicity and national origin continue to play a negative role in

American society. Racial discrimination persists against various groups, despite the progress made

through the enactment of major civil rights legislation beginning in the 1860s and 1960s. The path

towards true racial equality has been uneven, and substantial barriers must still be overcome.

Therefore, even though U.S. law is in conformity with the obligations assumed by the United

States under the treaty, American society has not yet fully achieved the Convention’s goals. 

Additional steps must be taken to promote the important principles embodied in its text. In this vein,

the United States welcomed the visit of the UN Special Rapporteur on Contemporary Forms of

Racism, Racial Discrimination, Xenophobia and Related Intolerance during the fall of 1994 and took

note of the report of his findings (E/CN.4/1995/78/Add.1, dated 16 January 1995). In November

1997, the White House convened an unprecedented Hate Crimes Conference to formulate effective

responses to the increasing number of violent crimes motivated by racial and ethnic sentiments. The

President’s Initiative on Race, the establishment of the White House Office on the President’s

Initiative for One America, and the preparation of this report constitute important parts of that effort.

 Indeed, in confronting issues of race every day, the American public is engaged in an ongoing

dialogue to determine how best to resolve racial and ethnic tensions that persist in U.S. society.

Reflecting the multi-ethnic, multi-racial and multi-cultural nature of America today, the

private sector plays an important role in combating racism in the United States, through activities

and programs conducted by such non-governmental groups (“NGOs”) as the American-Arab AntiDiscrimination Committee, the American Civil Liberties Union (ACLU), Amnesty International, the

Anti-Defamation League, the Asian American Legal Defense and Education Fund, B’nai Brith, the

Cuban-American National Council, Human Rights Watch, Indigenous Environmental Network, the

Japanese American Citizens League, the Lawyers Committee for Human Rights, the Lawyers’

Committee on Employment Rights, the League of United Latin-American Citizens, the MexicanAmerican Legal Defense and Education Fund (MALDEF), the National Asian Pacific American

Legal Consortium, the National Association for the Advancement of Colored People (NAACP), the

NAACP Legal Defense and Education Fund, the National Conference for Community and Justice,
3

the National Council of La Raza, the National Congress of American Indians, the National Urban

League, the Native American Rights Foundation, Na Koa Ikaika, the Organization of Chinese

Americans, the Southern Organizing Committee, the Southern Poverty Law Center, and the

Southwest Network for Economic and Environmental Justice, among many others. NGOs played

a vital role in the Civil Rights Movement, have been actively involved in the President’s Initiative

on Race, and continue to be instrumental in working towards full achievement of the purposes of this

Convention. Information about the activities of these and many other civil rights NGOs can be

obtained through the Leadership Conference on Civil Rights, a coalition of organizations dedicated

to promoting civil and human rights in the United States. <http://www.civilrights.org>

As a functioning, multi-racial democracy, the United States seeks to enforce the established

rights of individuals to protection against discrimination based upon race, color, national origin,

religion, gender, age, disability status, and citizenship status in virtually every aspect of social and

economic life. Federal law prohibits discrimination in the areas of education, employment, public

accommodation, transportation, voting, and housing and mortgage credit access, as well as in the

military and in programs receiving federal financial assistance. The federal government has

established a wide-ranging set of enforcement procedures to administer these laws, with the U.S.

Department of Justice exercising a major coordination and leadership role on most critical

enforcement issues. State and local governments have complementary legislation and enforcement

mechanisms to further these goals.

At both the federal and state levels, the United States has developed a broad range of legal

and regulatory provisions and administrative systems to protect and to promote respect for civil

rights. Enforcement agencies have worked diligently over the last three decades to improve

enforcement of these rights and to promote education, training and technical assistance. In addition,

over the years, the U.S. Congress has significantly strengthened the enforcement provisions of some

of the civil rights statutes. The federal government remains committed to providing full, prompt,

and effective administration of these laws.

This commitment to eliminating racial discrimination began with the Emancipation

Proclamation (effective on January 1, 1863), which freed the slaves in the Confederacy (the region

comprised of the southern states which attempted to secede from the Union), and with the end of the

American Civil War (1861-65). Since that time, American society has sought to create ever more

effective means to address and resolve racial and ethnic differences without violence. Indeed, the

amendments to the United States Constitution enacted at the war’s conclusion, the Thirteenth

Amendment (ending slavery), the Fourteenth Amendment (guaranteeing equal protection of the laws

and due process of law), and the Fifteenth Amendment (guaranteeing Black1

 citizens the right to

vote), directly addressed questions of racial discrimination. The laws enacted in the Reconstruction

Era, immediately following the Civil War, also addressed the rights of minorities. Unfortunately,

however, these laws did not succeed in changing attitudes born of generations of discrimination, and

through restrictive interpretation and non-application, they were largely ineffective. Moreover, the

U.S. Supreme Court invalidated federal authority to protect Blacks and others from state-sponsored

discrimination. As a result, through the first half of the 20th Century, racial discrimination and

 

1 For ease of reference this report will use the terms for racial and ethnic categories used by the U.S. Census Bureau.
4

segregation was required by law (de jure) in many of our country’s southern states in such key areas

as education, housing, employment, transportation, and public accommodations. Discrimination and

segregation was a common practice (de facto) in most other portions of the country. In addition,

though the Fifteenth Amendment guaranteed that the “right of citizens of the United States to vote

shall not be abridged by the United States or by any state on account of race, color, or previous

condition of servitude,” many southern states enacted laws that were seemingly neutral, but were

designed and implemented in a way to deny Black citizens the opportunity to participate in elections.

Prior to the middle of the 20th Century, there were no laws to address other forms of racial

discrimination, such as discriminatory provisions in U.S. immigration law and policy. After the U.S.

acquisition of California in 1848, there arose a need for cheap labor, and Chinese immigrants flocked

to the western United States to work on the rapidly developing railroads. Anti-Asian prejudice and

the competition that Chinese immigrants provided to American workers led to anti-Chinese riots in

San Francisco in 1877, and then to the Chinese Exclusion Act of 1882. The Act banned all Chinese

immigration for ten years, and it was extended until 1924 when a new immigration law prohibited

all Asian immigration to the United States. Several years later, law and policy toward Asian

immigrants was again changed, extending citizenship rights to those already in the United States and

establishing a quota for immigrants from various countries. The quota was abolished in 1965.

With regard to Native Americans, the United States has historically recognized Native

American tribes as self-governing political communities that pre-date the U.S. Constitution. From

1778 until 1871, the United States entered into numerous treaties with Indian tribes, which

recognized tribal self-government, reserved tribal lands as “permanent homes” for Indian tribes, and

pledged Federal protection for the tribes. Yet, the United States engaged in a series of Indian wars

in the 19th Century, which resulted in significant loss of life and lands among Indian tribes. In the

1880s, over the protests of Indian leaders, including Sitting Bull and Lone Wolf, the United States

embarked on a policy of distributing tribal community lands to individual Indians in an attempt to

“assimilate” Indians into the agrarian culture of our Nation. This “Allotment Policy” resulted in a

loss of almost 100 million acres of Indian lands from the 1880s until 1934, when President Franklin

D. Roosevelt ended the policy with the enactment of the Indian Reorganization Act in 1934. This

Act was intended to encourage Indian tribes to revitalize tribal self-government, so that Indian tribes

might use their own lands and resources to provide a sustainable economy for their people. This

policy of respect for Native American and Alaska Native tribes and cultures acknowledges tribal

self-government and promotes tribal economic self-sufficiency.

In 1941, Franklin D. Roosevelt issued an Executive Order prohibiting discrimination on the

basis of race, color, creed or national origin in the war industries or federal government. However,

the U.S. armed forces continued to operate racially segregated combat units until 1948. During

World War II, persons of Japanese, German, and Italian ancestry suffered blatant forms of

discrimination, justified on grounds of military necessity. Thousands of U.S. citizens, the majority

of whom were ethnically Japanese, were “relocated” to internment camps throughout the western

United States. This policy was held lawful by the U.S. Supreme Court in Korematsu v. United

States, 321 U.S. 760 (1944). In recent years, however, the United States has recognized the

wrongfulness of this policy and made lump sum payments to Japanese Americans who were detained

in accordance with this policy, or to their survivors.
5

Following World War II, a combination of grass roots civic action and critical decisions by

the Executive and Judicial branches of the federal government set the stage for strategies for

overcoming the legacy of slavery. In 1948, the U.S. Supreme Court banned the use of racially

restrictive covenants that limited the sale of housing to members of racial or religious minorities.

Shelly v. Kramer, 334 U.S. 1 (1948). In the same year, President Truman issued an Executive Order

requiring equality of treatment for all persons in the U.S. Armed Forces. In 1954, the Supreme Court

rendered its landmark decision in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954),

banning state-sponsored racial segregation in public education and creating the foundation for the

emergence of the contemporary civil rights movements.

During the past forty years there has been a steady stream of legislation at the federal, state

and local levels creating remedies for individuals affected by racial discrimination. Some of the

most significant pieces of federal civil rights legislation include: the Civil Rights Act of 1964, which

outlawed discrimination in public accommodations, employment, and education; the Voting Rights

Act of 1965, which prohibited voting discrimination and thus brought Blacks from southern states

into the political process, and which continues to protect all racial and language minorities

throughout the nation from discrimination in the political process; and the 1968 Fair Housing Act

which eliminated discrimination in housing and mortgage lending. Executive Orders issued by

Presidents through the years have supplemented this catalog of protections by specifically requiring

non-discrimination in a vast range of public programs. Similarly, the Immigration Act of 1965

repealed restrictions on the permanent entry of Asians and made family reunification, not race or

national origin, the cornerstone of U.S. immigration policy.

In each of the areas covered by this Convention, the American people can point with pride

at the great strides towards equality made over the past half-century. However, despite these

enormous accomplishments, much remains to be done to eliminate racial discrimination altogether.

While the scourge of officially-sanctioned segregation has been eliminated, de facto segregation and

persistent racial discrimination continue to exist. The forms of discriminatory practices have

changed and adapted over time, but racial and ethnic discrimination continues to restrict and limit

equal opportunity in the United States. For many, the true extent of contemporary racism remains

clouded by ignorance as well as differences of perception. Recent surveys indicate that, while most

Whites do not believe there is much discrimination today in American society, most minorities see

the opposite in their life experiences.

Indeed, in recent years the national conscience has been sharply reminded of the challenges

to eradicating racism by such notorious incidents as the 1991 beating of Rodney King by two Los

Angeles police officers; the death of Amadou Diallo in New York; the burning of Black churches,

synagogues and mosques; the brutal murder of James Byrd, Jr., in Texas; the shootings at a Jewish

cultural center in Los Angeles, and the pattern of discrimination revealed in civil rights litigation

against the Denny’s Restaurant chain and the Adams Mark Hotel. Further, heightened awareness

and discussion of racial issues have led some to call on Americans to reexamine our history and to

consider making reparations in some form to Blacks for past slavery. These and other issues have

prompted vigorous debate in schools, media and government over issues of race.
6

No country or society is completely free of racism, discrimination or ethnocentrism. None

can claim to have achieved complete success in the protection and promotion of human rights, and,

therefore, all should welcome open dialogue and constructive criticism. As a society, the United

States continues to search for the best means to eliminate all forms of racial, ethnic and religious

discrimination through the mechanisms available within a pluralistic, federal system of government.

The United States has long been a vigorous supporter of the international campaign against

racism and racial discrimination. Indeed, the United States will play an active role in the upcoming

World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance in

2001. Toward that end, the United States is engaged in a domestic preparatory process that will

invite the involvement of state and local government officials as well as academia and civil society.

The last half century of progress has provided the United States with a useful perspective

from which to offer insights to other countries with diverse and growing minority populations. By

the same token, the people and government of the United States can learn from the experiences of

others. The United States looks forward to a constructive dialogue with the members of the

Committee.
7

PART I. GENERAL

In accordance with the Committee’s guidelines, the following sections provide general

information about the land and people, the political and legal structure, and the status of civil and

human rights in the United States. Additional background information on these subjects can be

found in the Initial Report of the United States to the Human Rights Committee under the

International Covenant on Civil and Political Rights (HRI/CORE/I/Add. 49 and CCPR/C/81/Add.4)

submitted in July 1994. 

A. Land and People

The United States of America is a federal republic of fifty states, together with a number of

commonwealths, territories and possessions. The District of Columbia – a federal enclave – is the

seat of the national government. The 50 states include 48 contiguous states, which span the North

American continent, and the states of Alaska and Hawaii. As reported in the 1990 census, the United

States had a land area of 9.2 million square kilometers, a population of 249 million, and an average

population density of 27 per square kilometer.

There are several outlying areas under U.S. jurisdiction. These include Puerto Rico, the

Virgin Islands of the United States, American Samoa, Guam, the Northern Mariana Islands, and

several very small islands. In 1990, the outlying areas of the United States had a land area of 11,000

square kilometers and a population of 3.9 million. The U.S. population living abroad was not

enumerated as part of the 1990 census; however, administrative data from U.S. government agencies

indicate that a total of 923,000 federal employees and their dependents lived abroad in 1990.

The population of the United States increased from 249 million on April 1, 1990, to an

estimated 273 million on July 1, 1999, yielding an average annual increase of about 1.0 percent. The

population doubled from 76 million in 1900 to 152 million in 1950 and, based on a projection of 275

million for 2000, will increase slightly more than 80 percent from 1950 to 2000.

The United States is an increasingly diverse society. Virtually every national, racial, ethnic,

cultural, linguistic, and religious group in the world is represented among its population. Federal

statistics compiled by the U.S. Census Bureau recognize four racial categories: White (a person

having origins in any of the original peoples of Europe, the Middle East, or North Africa); Black (a

person having origins in any of the Black racial groups of Africa); American Indian, Eskimo or Aleut

(a person having origins in any of the original peoples of North and South America – including

Central America); Asian or Pacific Islander (a person having origins in any of the original peoples

of the Far East, Southeast Asia, or the Indian subcontinent or in any of the original peoples of

Hawaii, Guam, Samoa, or other Pacific Islands); and two ethnic categories: Hispanic origin (a

person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or

origin, regardless of race) and not of Hispanic origin.2

 Members of each of the racial categories may

belong to either of the ethnic categories.

 2

 The classification of the population by race and ethnicity is based on a statistical standard issued by the U.S.

Office of Management and Budget (OMB) in 1977. OMB issued a revised standard in 1997. Under the revised standard,
8

The United States recognizes that these racial and ethnic classifications are by no means

perfect. Indeed, the people of the U.S. struggle with issues of racial and ethnic identity, continually

re-evaluating both the question, “What is race?” and its numerous, complex responses. Racial and

ethnic groups are comprised of individuals of substantial diversity, making simple classifications

difficult. Placing such individuals in racial and ethnic categories can even lead to further

discrimination through perpetuating stereotypes. Nevertheless, classifications – imperfect as they

may be – are necessary for reasons of governance and administration, and the U.S. Census Bureau

regularly reviews its methodology to ensure accuracy and inclusiveness.

The population of the United States is primarily White non-Hispanic; however, due partly

to large-scale immigration in the past three decades, primarily from Latin America and Asia, the

White non-Hispanic proportion has dropped. Between 1990 and 1999 while the White non-Hispanic

population increased from 188.3 million to 196.1 million, its percentage of the total population

dropped from 75.7 percent to 71.9 percent. 

While the White non-Hispanic population grew by 4 percent from 1990 to 1999, each of the

“minority” groups increased much more rapidly. During that period, the Asian and Pacific Islander

population increased by 46 percent (from 7.5 million to 10.9 million); the Hispanic population

increased by 40 percent (from 22.4 million to 31.4 million); the American Indian, Eskimo, and Aleut

population increased by 16 percent (from 2.1 million to 2.4 million); and the Black population

increased by 14 percent (from 30.5 million to 34.9 million).3

Based on population projections issued in January 2000 by the U.S. Census Bureau, the

White non-Hispanic proportion of the U.S. population will have declined to 53 percent of a projected

total population of 404 million by the year 2050. These projections indicate an Hispanic population

in 2050 of 24 percent; a Black population of 15 percent; an Asian and Pacific Islander population

of 9.3 percent; and an American Indian, Eskimo, and Aleut population of 1.1 percent.4

The results of the 1990 census showed that the distribution of the U.S. population by urban

residence and region of the country varied considerably by race and ethnicity. Blacks and Hispanics

are much more likely to live in large urban areas than are non-Hispanic Whites. In 1990, 75 percent

 

individuals may report more than one race; the Asian and Pacific Islander category is divided into two categories; and

there are changes in terminology. The five racial categories are: White, Black or African American, American Indian

and Alaska Native, Asian, and Native Hawaiian and Other Pacific Islander. The two ethnic categories are Hispanic or

Latino and Not Hispanic or Latino. Data on the population by race and ethnicity from the 2000 census will reflect the

1997 standard and will become available in 2001.

3

 Since the population of Hispanic origin may be of any race, the four minority groups are not mutually

exclusive. In 1999, 2.8 million individuals were classified in two minority groups, including 1.8 million Black and

Hispanic; 0.4 million American Indian, Eskimo, and Aleut, and Hispanic; and 0.6 million Asian and Pacific Islander and

Hispanic. 

4 Because the United States uses an acknowledgment process through which Native American tribes are given

federal recognition (making them eligible to receive services and benefits provided to Native Americans), this figure may

not reflect the number of people of Native American ancestry who do not belong to a federally recognized tribe.
9

of the U.S. population lived in urban areas, defined generally as all places (incorporated or

unincorporated) of 2,500 or more population. The corresponding proportions were as follows:

71 percent of the total White, non-Hispanic population lived in urban areas; 87 percent of the Black

population; 56 percent of the American Indian, Eskimo, and Aleut population; 95 percent of the

Asian and Pacific Islander population; and 91 percent of the Hispanic population. The proportions

of the population residing in urbanized areas of 1 million or more population were as follows: 38

percent of the total population lived in such areas; 32 percent of the country’s White non-Hispanics

lived in such areas; 51 percent of Blacks; 20 percent of American Indians, Eskimos, and Aleuts; 66

percent of Asians and Pacific Islanders; and 61 percent of Hispanics.

Of the total population in 1990, 20 percent lived in the Northeast, 24 percent in the Midwest,

34 percent in the South, and 21 percent in the West. However, over one-half of the Black population

(53 percent) lived in the South, despite massive migration to other regions of the country during the

20th century. Other minority groups were concentrated in the West, including 48 percent of

American Indians, Eskimos, and Aleuts; 56 percent of Asians and Pacific Islanders; and 45 percent

of Hispanics. 

Historically, immigration has had a profound effect on the culture of the United States, and

immigration continues to be a driving force in the diversification of the population today. Between

1990 and 1997, the foreign-born population increased from 19.8 million to an estimated 25.8 million,

or from 7.9 percent to 9.7 percent of the population. This continues an upward trend since 1970

when the foreign-born population reached a 20th century low of 9.6 million, or 4.7 percent of the

population. In the first half of the 20th century, the proportion of the foreign-born population peaked

at 14.7 percent in 1910, and the number of foreign-born peaked at 14.2 million in 1930.

From 1990 to 1997, the foreign-born population increased sharply from Latin America (8.4

million to 13.1 million) and from Asia (5.0 million to 6.8 million). During this same period, the

foreign-born population from Europe did not change significantly (4.4 million to 4.3 million). The

proportion of the foreign-born population from Europe, historically the primary source of

immigration to the United States, dropped from 62 percent in 1970 to 23 percent in 1990 and to 17

percent in 1997.

In 1997, 7.0 million, or 28 percent, of the foreign-born population in the United States was

from Mexico, up from 4.3 million, or 23 percent, of the foreign-born population in 1990. The

estimated foreign-born population from Mexico in 1997 was about equal to the estimated foreignborn population from the other nine leading countries combined: the Philippines (1,132,000), China

(1,107,000), Cuba (913,000), Vietnam (770,000), India (748,000), the Soviet Union prior to its

division into 12 independent republics (734,000), the Dominican Republic (632,000), El Salvador

( 607,000), and the United Kingdom (606,000).

These estimates suggest that of the 10 leading countries of birth of the United States foreignborn population in 1997, 4 are in Latin America, 4 are in Asia, and 2 are in Europe. In 1970, the 10

leading countries included 7 in Europe (Italy, Germany, United Kingdom, Poland, the Soviet Union,

Ireland, and Austria), Canada, Mexico, and Cuba. 
10

Because of large-scale immigration to the United States in recent decades, many U.S.

residents speak a language other than English at home and are not fluent in English. The 1990

census revealed that among the 230 million individuals 5 years of age and over, 31.8 million spoke

a language other than English at home. Among these, 17.9 million spoke English “very well,” 7.3

spoke English “well,” 4.8 million spoke English “not well,” and 1.8 million spoke English “not at

all.” 

Of the 92 million households enumerated in the 1990 census, 2.9 million were “linguistically

isolated.” These were defined as households in which no person 14 years and over spoke only

English at home or spoke a language other than English at home and also spoke English “very well.”

Of the 31.8 million individuals who spoke a language other than English at home in 1990,

 17.3 million spoke Spanish, 8.8 million spoke other Indo-European languages, 4.5 million spoke

Asian and Pacific Island languages, and 1.2 million spoke other languages. In addition to Spanish,

which accounted for 54 percent of non-English languages, the leading languages spoken at home by

numbers of speakers were French (1,930,000), German (1,548,000), Chinese (1,319,000), Italian

(1,309,000), Tagalog (843,000), Polish (723,000), Korean (626,000), and Vietnamese (507,000).

B. General Political Structure

At the national level, the U.S. Constitution establishes a democratic system of governance

and guarantees a republican system at the state and local level. It establishes the will of the people

as the basis of governmental legitimacy.

The federal government consists of three branches: the executive, the legislative and the

judicial. The executive branch is headed by the President, who is elected for a term of four years.

The President has broad powers to manage national affairs and the workings of the federal

government, including the various executive departments and agencies. The President is charged

with “taking care” that the laws are faithfully executed.

The U.S. Constitution vests legislative powers in the Congress, which consists of the U.S.

Senate and the U.S. House of Representatives. The U.S. Senate is made up of 100 Senators; two

elected from each state to six year terms. Senate terms are staggered so that one third of the Senators

are elected every two years. The U.S. House of Representatives is made up of 435 members, each

of whom is elected to a two year term from a single member congressional district. House seats are

allotted to each state on the basis of population. The third branch consists of a system of

independent federal courts headed by the Supreme Court of the United States and including

subordinate appellate and trial courts throughout the country. Federal judges are appointed by the

President with the advice and consent of the Senate. That means that Presidential appointments to

the federal bench must be approved by a majority vote of the Senate. The power of the federal

judiciary extends to civil actions for money damages and other forms of redress, such as injunctive

relief, as well as to criminal cases arising under federal law. The Constitution safeguards judicial

independence by providing that federal judges shall hold office during “good behavior” — in

practice, until they die, retire or resign.
11

At the state level, this tripartite governmental structure is replicated, with each state having

its own constitution and executive, legislative, and judicial branches. The state governor acts as head

of the executive; all states have two legislative houses (except Nebraska’s, which has only one); and

most state court systems mirror the federal, with at least three levels. One important difference is

that state judges are often elected rather than appointed by the state’s chief executive. Most states

are divided into counties, and areas of population concentration are incorporated into municipalities

or other forms of local government (cities, towns, townships, boroughs, parishes or villages). In

addition, states are divided into school and special service districts to provide education and various

other public services (e.g., water, sewer, fire and emergency, higher education, hospital services,

transportation). The result is that literally hundreds of governmental entities and jurisdictions exist

at the state and local levels; for the most part, the leaders of these entities are elected, although some

are appointed by others who are elected. 

A significant number of U.S. citizens live in areas outside the fifty states, yet within the

political and legal framework of the United States. These areas include: the District of Columbia

(seat of the national government and a federal enclave); the insular areas of American Samoa, Guam,

the Commonwealths of Puerto Rico and the Northern Mariana Islands, the U.S. Virgin Islands, and

Johnston, Midway, Palmyra and Wake Atolls. The specific governmental framework for each is

largely determined by the area’s historical relationship with the United States. 

A special relationship exists between the U.S. government and Native Americans. While the

diversity of the indigenous North American population makes generalizations difficult (there are

more than 550 federally recognized American Indian and Alaskan Native tribes and groups, speaking

more than 150 different languages), many enjoy considerable governmental autonomy on

reservations or other Indian lands and Alaska villages. The provision of “federal recognition”

reflects the principle of government-to-government relations founded under U.S. law and practice.

 Other tribal groups have over time been assimilated into local society.

Since 1924, Native Americans have enjoyed the protections of the U.S. Constitution when

not on their own reservations. When on their own reservations, Native Americans are subject to

Tribal law, the Indian Major Crimes Act and the Indian Civil Rights Act which sets forth the

essential protections of the Bill of Rights of the U.S. Constitution. The protections afforded to

Native Americans while on their own reservations are consistent with U.S. Constitutional guarantees.

The U.S. government has a similar relationship with Native Hawaiians. Since Hawaii’s

admission into the Union, Congress has endeavored to protect and improve the welfare of Native

Hawaiians by establishing special programs in the areas of health care, education, employment, and

loans; and enacting statutes to preserve Native Hawaiian culture, language, and history. A recent

case decided by the U.S. Supreme Court, Rice v. Cayetano, 527 U.S. 1061, 120 S.Ct. 31 (1999), has

cast doubt on the Congress’ authority to legislate in a manner that grants Native Hawaiian

preferences. The Court’s decision in Rice has thus prompted spirited debate over the relationship

between Native Hawaiians and the U.S. government, and indeed, the U.S. Departments of Interior

and Justice are in the process of preparing a report on a reconciliation process between the federal

government and Native Hawaiians initiated by Senator Daniel K. Akaka in 1999.
12

C. General Legal Framework

The U.S. Constitution is the central instrument of government and the supreme law of the

land. Adopted in 1789, it is the world's oldest national, written constitution still in force. Together

with its twenty-seven amendments (the first ten are known as the “Bill of Rights”), the Constitution

guarantees the essential rights and freedoms of all individuals within the jurisdiction of the United

States. State constitutions and laws may, and sometimes do, provide stronger protections than

federal law (for example, in the area of freedom of religion and expression), but none may fall below

the basic guarantees of the federal Constitution.

Under Article VI of the U.S. Constitution, duly ratified treaties become part of the “supreme

law of the land” with a legal status equivalent to enacted federal statutes. As such, they prevail over

previously enacted federal law (to the extent of any conflict) and over any inconsistent state or local

law. Since existing U.S. law – through constitutional and statutory protections against, and remedies

for, racial discrimination – complies with obligations assumed by the United States under the

Convention, it was deemed unnecessary, at the time of ratification, to propose implementing

legislation.

The essential guarantees of human rights and fundamental freedoms within the United States

are set forth in the U.S. Constitution and statutes of the United States, as well as the constitutions

and statutes of the U.S. states and other constituent units. In practice, the enforcement of these

guarantees ultimately depends on the existence of an independent judiciary with the power to

invalidate acts of the other branches of government that conflict with those guarantees. Maintenance

of a republican form of government with vigorous democratic traditions, popularly elected

executives and legislatures, and the deeply-rooted legal protections of freedoms of opinion,

expression, religion and the press, all contribute to the protection of human rights against

governmental limitation and encroachment.

There is no single statute, institution or mechanism in the United States by which

internationally recognized human rights and fundamental freedoms are guaranteed or enforced.

Rather, domestic law provides extensive protections through various Constitutional provisions and

statutes which typically create administrative and judicial remedies at both the federal and state

levels. Responsibility for identifying violations and enforcing compliance is therefore shared among

the various branches at all levels of government. In practice, a major impetus for the protection of

statutory and Constitutional rights derives from individual remedial actions, advocacy by nongovernmental organizations, legislative and federal agency monitoring and oversight, and the

ameliorative efforts of a free and energetic press.

Several parts of the federal government bear special responsibilities for matters directly

relevant to this Convention:

U.S. Department of Justice. The Civil Rights Division of the Department of Justice serves

as the chief civil rights enforcement agency for the federal government, charged with the effective

enforcement of federal civil rights laws, in particular the Civil Rights Acts of 1964 and 1991, and

the Voting Rights Act of 1965. The Civil Rights Division also exercises the authority given to the
13

Attorney General under Executive Order No. 12250 to ensure consistent and effective enforcement

of laws prohibiting, among other things, discrimination on the basis of race, color, national origin,

religion, or sex in programs and activities receiving federal financial assistance, as well as on the

basis of disability in programs receiving federal financial assistance and conducted by federal

agencies. The Division also enforces laws prohibiting patterns or practices of police misconduct (42

U.S.C. sec. 14141), protecting the constitutional and federal statutory rights of persons confined to

certain institutions owned or operated by state or local governments, such as prisons, jails, nursing

homes, and mental health facilities (the Civil Rights of Institutionalized Persons Act (CRIPA)), and

the Equal Credit Opportunity Act and the Fair Housing Act (the Department of Justice shares

responsibility for administration of the latter statute with the Department of Housing and Urban

Development). Under these various statutes, the Division may bring civil actions to enjoin acts or

patterns of conduct that violate constitutional rights. In its civil cases, the Justice Department’s

responsibilities permit it to go to federal court to seek broad remedial orders that may include

compensatory damages, civil penalties, injunctive relief and, in some cases, punitive damages.

The Division also has authority to prosecute criminally those who use force or threat of force

to violate a person’s rights to non-discrimination (so called “hate crimes”) and state and local law

enforcement officers who engage in the use of excessive force (18 U.S.C sec. 242).

The Community Relations Service (CRS), an independent agency within the Justice

Department, is the federal government’s “peacemaker” for community conflicts and tensions arising

from differences of race, color, and national origin. Created by the Civil Rights Act of 1964, CRS

is the only federal agency whose purpose is to assist state and local units of government, private and

public organizations, and community groups with preventing and resolving racial and ethnic

tensions, conflicts and civil disorders, and in restoring racial stability and harmony.

Within the Department of Justice, the Office of Special Counsel for Immigration Related

Unfair Employment Practices enforces prohibitions against citizenship status discrimination in

employment, national origin discrimination by small employers, and document abuse associated with

employer sanctions.

U.S. Equal Employment Opportunity Commission. The Equal Employment Opportunity

Commission (EEOC), an independent, bi-partisan agency within the executive branch established

by the Civil Rights Act of 1964, has enforcement and compliance responsibilities concerning the

elimination of discrimination based on race, color, national origin, religion, gender, age and

disability by private and public employers in all aspects of the employment relationship. 

Since its inception, the EEOC has obtained over $2.2 billion in monetary benefits for parties

bringing discrimination charges through administrative actions, i.e., through conciliation and

settlement. In 1999 alone, the EEOC obtained over $210 million in these actions.

U.S. Commission on Civil Rights. While not an enforcement agency, the U.S. Commission

on Civil Rights also plays an important role in safeguarding the rights recognized by the Convention.

The Commission has a broad mandate to monitor and report on the status of civil rights protections

in the United States. As an independent, bipartisan agency, it collects information on discrimination
14

or denials of equal protection of the laws because of race, color, and national origin, evaluates federal

laws, and makes recommendations to the President and the Congress based on the effectiveness of

governmental equal opportunity and civil rights programs.

Other federal departments and agencies also have important enforcement responsibilities.

 For example:

-- Within the Department of Education, the Office for Civil Rights is charged with

administering and enforcing civil rights laws related to education, including desegregation of the

country’s elementary and secondary schools. This office gives particular attention to discrimination

against minorities in special education and remedial courses, in math and science and advanced

placement courses, in the use of tests and assessments, and in higher education admissions.

-- The Assistant Secretary for Fair Housing and Equal Opportunity within the Department

of Housing and Urban Development administers the laws prohibiting discrimination in public and

private housing and ensures equal opportunity in all community development programs. HUD’s

Office of Fair Housing and Equal Opportunity administers two grant programs: the Fair Housing

Assistance program (which provides financial assistance to supplement enforcement activities at the

state and local levels) and the Fair Housing Initiatives Program (a competitive grant program to

provide funding to private fair housing groups).

-- The Office of Civil Rights within the Department of Health and Human Services

administers civil rights laws prohibiting discrimination in federally-assisted health and human

services programs, with particular emphasis on areas of managed care, quality of health care, interethnic adoption, services to limited English proficient persons, and welfare reform. 

-- Within the Department of Labor, the Office of Federal Contract Compliance Programs

administers laws prohibiting discrimination and requiring affirmative action in employment by

Federal contractors and subcontractors on the bases of race, gender, national origin and other

grounds. The Department’s Civil Rights Center enforces laws prohibiting discrimination by

recipients of federal financial assistance from the Department of Labor on the bases of race, religion,

national origin, gender, disability and other grounds.

-- Within the Department of Agriculture, civil rights programs are aimed at ensuring that all

USDA customers are treated fairly and equitably. In 1997, USDA appointed a Civil Rights Action

Team to address allegations of discrimination against minority farmers in the United States. As a

result of its investigations, the Team concluded that minority farmers had indeed lost significant

amounts of land and potential farm income as a result of discriminatory practices by the USDA. That

same year, a major class action lawsuit was filed against the United States and the USDA alleging

widespread discrimination against Black farmers in the United States. As a result of the lawsuit, a

consent decree has been entered, establishing a claims mechanism through which individual class

members can resolve their complaints in an expeditious and fair manner. To date, 11,120 Black

farmers have received over $323 million in compensation.

-- The Office for Equal Opportunity within the Department of the Interior administers laws
15

prohibiting discrimination based on race, color, and national origin in federally assisted and federal

employment programs. These programs ensure that state and local park, recreation, fishing, hunting,

and historic preservation programs and activities are provided to individuals in the United States on

an equal opportunity basis regardless of race, color, or national origin. In addition, this office

enforces compliance with civil rights laws with respect to employment in state natural resource

programs and administers civil rights laws prohibiting unlawful discrimination against employees

of, and applicants for employment with, the Department of Interior.

-- Within the Department of Defense, the Deputy Assistant Secretary for Equal Opportunity

is responsible for implementing and monitoring the Department’s civilian and military equal

opportunity/affirmative action plan goals and objectives.

In addition to the agencies listed, virtually all federal agencies that provide federal financial

assistance have civil rights offices whose responsibility it is to ensure that recipients of that

assistance do not engage in unlawful discrimination. This includes the major providers of federal

assistance such as the Departments of Agriculture, Commerce, Education, Health and Human

Services, Housing and Urban Development, Justice, Labor, Transportation, and Veterans’ Affairs.

All twenty-eight federal providers of federal assistance are responsible for ensuring that their

recipients do not discriminate, and the Civil Rights Division of the Justice Department is responsible

for ensuring that all Federal funding agencies effectively and consistently enforce their nondiscrimination responsibilities.

Furthermore, a number of federal agencies, including the Environmental Protection Agency,

the Federal Emergency Management Agency, the Federal Communications Commission and the

Departments of Agriculture, Energy, Commerce, Defense, Health and Human Services, Housing and

Urban Development, Justice and Labor have established offices or points of contact to specifically

address issues affecting Native Americans, their lands and resources. Also, many of these agencies

have developed agency-wide policies, based on the concepts of self-governance, the federal trust

responsibility, consultation and the government-to-government relationship to guide their work with

Indian tribes.

In the U.S. Congress, special emphasis has long been given to matters involving

discrimination on the basis of race, color, national origin, and ethnicity. In addition to the oversight

functions of various standing committees in both Houses (such as Judiciary, Indian Affairs, and

Commerce, Justice, State, the Judiciary and Related Agencies), attention is focused through other

mechanisms such as the Asian Pacific, Black, Hispanic, Native American and Human Rights

Caucuses. 

D. Information and Publicity

In the United States, information about human rights is readily available. As a general

matter, people are well-informed about their civil and political rights, including the rights of equal

protection, due process, and non-discrimination. The scope, meaning and enforcement of individual

rights are openly and vigorously discussed in the media, freely debated within the various political

parties and representative institutions, and litigated before the courts at all levels.
16

Information about human rights treaties is freely and readily available to any interested

person in the United States. The constitutional requirement that the U.S. Senate give its advice and

consent to ratification of a treaty ensures that there is a public record of its consideration, typically

on the basis of a formal transmittal by the President, a record of the Senate Foreign Relations

Committee’s hearing and report to the full Senate, and the action of the Senate itself. Moreover, the

text of any treaty, whether or not the United States is a party, can be readily obtained from any

number of sources, including the Library of Congress, public libraries, educational institutions and

non-governmental organizations. 

Increasingly, over the last few years information about human rights, civil rights and related

subjects has become available on the Internet. For example, the Department of Justice web site

<http://www.usdoj.gov> includes information about the Civil Rights Division, links to all sections

of the Division that include information about settlements, high profile cases, the laws enforced by

each section, contact information for each section, information on special topics, selected judicial

decisions, and legal briefs filed by the Division. The U.S. Commission on Civil Rights web site

<http://www.usccr.gov> includes a description of the Commission’s duties, function and

composition as well as information on how to file complaints and contact the Commission. The U.S.

Equal Employment Opportunity Commission web site <http://www.eeoc.gov> includes guidance

directed to employers and employees, information about the EEOC, enforcement statistics, and

selected civil rights laws, regulations and guidance. Individuals can also find helpful information

at the fair housing section of the U.S. Department of Housing and Urban Development web site

<http://www.hud.gov/fairhsg1.html> where individuals can file housing discrimination complaints

on-line. The Department of Interior Diversity web site <http://www.ios.doi.diversity.gov> includes

information on all Department of Interior civil rights policies and programs, special employment

programs, complaint processing procedures for employees and applicants and for individuals filing

complaints against federally-assisted state agency programs. The Department of Interior’s Office

of Insular Affairs operates a web site <http://www.doi.gov/oia> that includes fact sheets detailing

the federal government’s responsibilities to and protection of the indigenous peoples of the U.S.

insular areas of the United States. A comprehensive listing of federal government web sites

providing information about the civil rights enforcement efforts of agencies providing federal

financial assistance can be found at the Internet site of the Justice Department Civil Rights

Division’s Coordination and Review Section, <http://www.usdoj.gov/ctr/cor>. Numerous other web

sites, operated by U.S. government agencies as well as by NGOs, include helpful information on

civil rights, racial discrimination and legal remedies in the United States.

In the case of the Convention on the Elimination of All Forms of Racial Discrimination, the

record of its consideration is set forth in several official documents, including, inter alia, the Initial

Message from the President transmitting the Convention to the Senate on February 23, 1978 (Sen.

Exec. Doc. 95-C); the printed record of the public hearings before the Senate Foreign Relations

Committee on May 11, 1994 (S. Hrg. 103-659); the Report and Recommendation of the Senate

Foreign Relations Committee, dated June 2, 1994 (Sen. Exec. Rep. 103-29), and the record of

consideration on the floor of the Senate (Cong. Rec. S6601, daily ed. June 8, 1994).

At the May 1994 hearing before the Senate Foreign Relations Committee, representatives of
17

various non-governmental organizations involved in human rights, as well as concerned academics

and legal practitioners, testified in person or submitted written comments for consideration by the

committee and for inclusion in its formal records. The Administration was represented by the

Assistant Attorney General for Civil Rights, the Assistant Secretary of State for Democracy, Human

Rights and Labor, and the Legal Adviser of the Department of State.

As part of the United States’ program to increase public awareness of human rights

obligations, this Report will be published and made available to the public through the Government

Printing Office and the depositary library system, as was done with the U.S. reports on compliance

with the International Covenant on Civil and Political Rights and the Convention Against Torture

and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment. Copies of the Report

and the Convention will also be widely distributed within the executive branch of the U.S.

Government and to federal judicial authorities, as well as to relevant state officials, state and local

bar associations, and non-governmental human rights organizations. The Report and Convention

will also be available on the Department of State web site at <http://www.state.gov>.

E. Factors Affecting Implementation

Although there has been significant progress in the improvement of race relations in the

United States over the past half century, serious obstacles remain to be overcome. Overt

discrimination is far less pervasive than it was thirty years ago, yet more subtle forms of

discrimination against minority individuals and groups persists in American society. In its

contemporary dimensions discrimination takes a variety of forms, some more subtle and elusive than

others. Among the principal causative factors are:

- The persistence of attitudes, policies and practices reflecting a legacy of segregation,

ignorance, stereotyping, discrimination and disparities in opportunity and achievement. 

- Inadequate enforcement of existing anti-discrimination laws due to under-funding of federal

and state civil rights agencies. Resource limitations cause delays in investigation, compliance

review, technical assistance and enforcement. 

- Ineffective use and dissemination of data on racial and ethnic issues and information on

civil rights protection. Too many persons do not believe that racial discrimination is a common or

active form of mistreatment and are therefore less supportive of race conscious remedial actions.

Moreover, many minority groups do not have adequate information about government-funded

programs and activities because information is not distributed in languages they can understand in

often remote areas throughout the United States. This is particularly true for some American Indian

and Alaska Native populations.

- Economic disadvantage. In the contemporary United States, persons belonging to minority

groups are disproportionately at the bottom of the income distribution curve. While it is inaccurate

to equate minority status with poverty, members of minority groups are nonetheless more likely to

be poor than are non-minorities. It is also true, in the United States as elsewhere, that almost every

form of disease and disability is more prevalent among the poor, that the poor face higher levels of
18

unemployment, that they achieve lower educational levels, that they are more frequently victimized

by crime, and that they tend to live in environments (both urban and rural) which exacerbate these

problems.

- Persistent discrimination in employment and labor relations, especially in the areas of

hiring, salary and compensation, but also in tenure, training, promotion, layoff and in the work

environment generally. Over the past few years, for example, complaints have been leveled against

several major employers including Texaco, Shoney’s, General Motors, Pitney Bowes and Avis.

- Continued segregation and discrimination in housing, rental and sales of homes, public

accommodation and consumer goods. Even where civil rights laws prohibit segregation and

discrimination in these areas, such practices continue.

- Lack of equal access to business capital and credit markets. Minorities continue to have

difficulty raising capital or securing loans to finance a business. Without sufficient access to such

financial markets, minority entrepreneurs will continue to start and grow businesses at a much slower

rate than their White counterparts. This problem further lessens the prospects of wealth creation in

under-served communities, thus perpetuating the cycle of poverty that disproportionately affects

minorities.

- Lack of access to technology and high technology skills. Despite the rapid development

of the Internet and other information technologies, minorities have participated at lower rates in the

so-called “new economy” because they lack the skills necessary to fill the numerous technology jobs

created everyday. Technology-based jobs are projected to be a large percentage of new jobs that will

be created over the next ten years. If minorities are not trained with information technology skills,

a large number of workers will be unable to benefit from the tremendous wealth generated by this

segment of the economy.

- Lack of educational opportunities. Largely because of the persistence of residential

segregation and so-called “White flight” from the public school systems in many larger urban areas,

minorities often attend comparatively under-funded (and thus lower-quality) primary and secondary

schools. Thus minority children are often less prepared to compete for slots in competitive

universities and jobs. While efforts to dismantle segregation in our nation’s schools have enjoyed

some success, segregation remains a problem both in and among our schools, especially given rollbacks in affirmative action programs.

- Discrimination in the criminal justice system. The negative overall impact of the criminal

justice system on Blacks, Hispanics and members of other minority groups is another barrier to our

achieving the goals of the Convention. Various studies indicate that members of minority groups,

especially Blacks and Hispanics, may be disproportionately subject to adverse treatment throughout

the criminal justice process. High incarceration rates for minorities have led to the political

disenfranchisement of a significant segment of the U.S. population. Moreover, many have raised

concerns that incidents of police brutality seem to target disproportionately individuals belonging

to racial or ethnic minorities.
19

- Disadvantages for women and children of racial minorities. Often, the consequences of

racism and racial discrimination are heightened for women and children. Whether in the criminal

justice system, education, employment or health care, women and children suffer discrimination

disproportionately. Startlingly high incarceration rates for minority women and children have placed

them at a substantial social, economic and political disadvantage.

- Health care. Persons belonging to minority groups tend to have less adequate access to

health insurance and health care. Historically, ethnic and racial minorities were excluded from

obtaining private insurance, and although such discriminatory practices are now prohibited by law,

statistics continue to reflect that persons belonging to minority groups, particularly the poor, are less

likely to have adequate health insurance than White persons. Racial and ethnic minorities also

appear to have suffered disproportionately the effects of major epidemics like AIDS. For example,

in 1999, 54 percent of new cases of HIV infection occurred among Blacks, even though they make

up less than 15 percent of the population.

- Voting. While the Voting Rights Act has made it possible for Blacks and Hispanics to

obtain an equal opportunity to elect their candidates of choice to local, state, and federal office, the

federal courts — since the early 1990s — have become more restrictive in permitting race-conscious

apportionment of voting districts. Thus, many of the gains made by minority voters in the 1970s and

1980s have been jeopardized.

- Discrimination against immigrants. Whether legal or illegal, recent immigrants often

encounter discrimination in employment, education and housing as a result of persistent racism and

xenophobia. Some also contend that U.S. immigration law and policy is either implicitly or

explicitly based on improper racial, ethnic and national criteria. Language barriers have also created

difficulties of access, inter alia, to health care, education and voting rights for some.

Specific examples of these shortcomings include the following incidents:

- On June 8, 1998, James Byrd, Jr., a Black man, was chained to the back of a pickup truck

and dragged to his death in Jasper, Texas. Two of the three young White men who killed James

Byrd were connected with White supremacist groups. The three men accused of committing this

crime were successfully prosecuted under Texas law by the state of Texas, with the assistance of the

U.S. Department of Justice. Two received the death penalty; the third was sentenced to life

imprisonment.

- One of the most high-profile cases in recent years was the videotaped beating of Rodney

King by officers of the Los Angeles Police Department. After the police officers were acquitted on

state charges, riots broke out in Los Angeles and in other cities throughout the country. Subsequent

to these acquittals, however, two of the four officers involved were convicted on federal charges and

sentenced to thirty months in prison.

- In 1999, Black guests of the Adams Mark Hotel during the Black College Reunion in

Daytona Beach, Florida were allegedly mistreated, including being required to wear wrist bands

identifying them as guests of the hotel, while White guests did not receive such treatment. The
20

Department of Justice filed suit against the hotel, and pursuant to a proposed settlement, the hotel

chain will agree, inter alia, to adopt a comprehensive plan to ensure every hotel will be operated in

a non-discriminatory fashion.

- The Civil Rights Division of the U.S. Department of Justice has initiated several

investigations into allegations of discriminatory highway traffic stops and discriminatory stops of

persons travelling in urban areas (so-called “racial profiling”) by state and local law enforcement

authorities. Its investigation of the New Jersey state police led to a lawsuit and consent decree

emphasizing non-discrimination in policy and practices as well as improved data collection, training,

supervision and monitoring of officers. A similar agreement was reached with the Montgomery

County, Maryland Police Department.

- In Jackson, Mississippi more than 200 Blacks were allegedly denied home improvement

loans even though they received passing scores on credit scoring systems. Black applicants were

more than three times more likely to have their loan applications denied than similarly situated White

applicants. The United States filed a lawsuit, which was settled in the amount of $3 million, to be

paid to Black applicants who had been denied loans.

- Throughout the United States, primary and secondary schools, colleges and universities,

and professional sports teams use depictions of Native Americans as mascots. Native American

groups have challenged these uses on the basis that they are demeaning and offensive. 

PART II: INFORMATION RELATING TO ARTICLES 2 TO 7

Since its Civil War, the United States has worked to develop the proper configuration of

constitutional, statutory and voluntary cooperation to transform race relations from conditions of

political and economic domination by the White, landed gentry to legal and actual parity for all U.S.

residents. Because the relevant laws derive from specific historical and social circumstances over

a lengthy period, they have taken shape in a manner which does not directly parallel the specific

articles of the Convention. Moreover, some aspects of this body of law, and of the national political

structure, caused the United States to condition its adherence to the Convention on a few precisely

crafted reservations, understandings and declarations. Given these facts, it is useful to preface the

discussion of the specific articles with the following background information.

A. Prohibition of Racial Discrimination

Existing U.S. Constitutional and statutory law and practice provide strong and effective

protections against discrimination on the basis of race, color, ethnicity or national origin in all fields

of public endeavor and provide remedies for anyone who, despite these protections, becomes a

victim of discriminatory acts or practices anywhere within the United States or subject to its

jurisdiction. Especially since the landmark 1954 decision of the U.S. Supreme Court in Brown v.

Board of Education, the notion of racial equality has been fundamental to the Constitutional and

statutory law of the United States.
21

1. United States Constitution

The constitutional protections against racial discrimination are contained in the Thirteenth,

Fourteenth and Fifteenth Amendments, all of which were ratified in a five-year period following the

conclusion of the Civil War in 1865, and in the Fifth Amendment, which since 1954 has been

construed to forbid the federal government from engaging in racial discrimination.

(a) Thirteenth Amendment. The Thirteenth Amendment abolished slavery. Section 2 of the

Amendment authorizes Congress to enforce the prohibition of slavery through "appropriate

legislation." The Amendment has been interpreted broadly, not only to abolish slavery, but also to

permit Congress to eliminate the “badges and incidents of slavery,” i.e., those vestiges of custom,

practice and private action that were the legacy of slavery. Jones v. Alfred H. Mayer Co., 392 U.S.

409, 440 (1968). As set forth below, civil rights statutes have been enacted pursuant to this

interpretation of Section 2 of the Thirteenth Amendment. The Thirteenth Amendment and

legislation implementing its commands are fully consistent with the Convention and substantially

further its goals.

(b) Fifth and Fourteenth Amendments. The part of the Fourteenth Amendment that speaks

to racial discrimination is the Equal Protection Clause, which provides that "[n]o State shall deny

to any person within its jurisdiction the equal protection of the laws." Equal protection strictures

apply to the federal government through the Due Process Clause of the Fifth Amendment. Bolling

v. Sharpe, 347 U.S. 497 (1954).

The Fourteenth Amendment was enacted in the period immediately after the end of the U.S.

Civil War, a time at which federalism issues were much at the forefront of the nation’s juridical

consciousness. The drafters of the Fourteenth Amendment intended that its prohibition on States’

making or enforcing “any law which shall abridge the privileges or immunities of citizens of the

United States,” would protect the fundamental rights of U.S. citizens, particularly civil rights, from

state encroachment. 

However, for almost one hundred years after the enactment of the Fourteenth Amendment,

the federal courts refused to apply its principles to state-sponsored racial discrimination and de jure

segregation. Thus, this kind of un-equal treatment was the rule, rather than the exception, all over

the United States until the middle of the Twentieth Century. In 1954, the U.S. Supreme Court, for

the first time, applied the Fourteenth Amendment’s requirements of “equal protection under the law”

against the states and ushered into U.S. law the idea that state-sponsored segregation was antithetical

to the country’s fundamental principles. See Brown v. Board of Education, 347 U.S. 483 (1954).

Since Brown, the U.S. Supreme Court has interpreted the Equal Protection Clause of the

Fourteenth Amendment as a "direction that all persons similarly situated should be treated alike."

Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985). In essence, it precludes

governments from adopting unjustifiable legal distinctions between groups of people. Plyler v. Doe,

457 U.S. 202, 216-219 (1982). Over time, the Supreme Court has made plain that distinctions based

on race or national origin are inherently suspect, and thus are rarely justifiable. McLaughlin v.

Florida, 379 U.S. 184, 192 (1964). When challenged in court, such distinctions are subject to "strict
22

scrutiny," the most exacting standard of constitutional review. Under strict scrutiny, a classification

violates the Equal Protection Clause unless it is necessary to promote a "compelling state interest"

and is "narrowly tailored" to achieve that interest. Palmore v. Sidotti, 466 U.S. 429, 432 (1984). In

practice, most racial or ethnic classifications fail to satisfy those standards. Bernal v. Fainter, 467

U.S. 216, 219 n.6 (1984). Strict scrutiny applies not only to laws that specifically categorize

individuals on the basis of race or ethnicity, but also to ostensibly neutral laws that are enforced only

against certain racial or ethnic groups. Personnel Administrator v. Feeney, 442 U.S. 256, 277 (1979)

(citing Yick Wo v. Hopkins, 118 U.S. 356 (1886)).

Even where racial or ethnic classifications are not at issue, strict scrutiny applies to legal

distinctions that the Supreme Court has determined interfere with the exercise of certain fundamental

rights. Under this strand of equal protection doctrine, the Supreme Court has invalidated

discriminatory measures in the areas of voting, Harper v. Virginia State Board of Education, 383

U.S. 663 (1966), inter-state and foreign travel, Aptheker v. Secretary of State, 378 U.S. 500 (1964),

and access to the judiciary, Griffin v. Illinois, 351 U.S. 12 (1956).

In short, the Equal Protection Clause, as interpreted by the Supreme Court is consistent with

the enumerated guarantees of Article 5 of the Convention.

(c) Fifteenth Amendment. The last of the post-Civil War era Amendments, the Fifteenth

Amendment provides that the right to vote "shall not be denied or abridged by the United States or

by any state on account of race, color, or previous condition of servitude." This Amendment, in

conjunction with the Fourteenth Amendment, is the basis of some of the federal legislation

protecting the right of individuals to vote and to participate in the political process free from

discrimination based on race or ethnicity. For the first few years after the enactment of the Fifteenth

Amendment, Blacks in the United States exercised their right to vote in strong numbers in the South.

However, because of a combination of forces (e.g., the resurgence of the Ku Klux Klan, often acting

with the complicity of local law enforcement) and the imposition of restrictive voting qualifications

in many southern states (such as the poll tax and literacy tests, often administered in a discriminatory

manner), Blacks in the South were once again locked out of the electoral process. In the years

between 1876 and the mid-1960s, neither Congress nor the federal courts took action to combat the

efforts by Southern states to prevent Blacks from participating in the political process. However,

after years of struggle, lead by the efforts of Martin Luther King, Jr. and others, in 1964 the country

ratified the Twenty-fourth Amendment to the Constitution prohibiting the requirement of payment

of a poll tax as a qualification for voting for federal offices, and in 1965 the U.S. Congress enacted

the Voting Rights Act which made real the Fifteenth Amendment’s prohibition against

discrimination in voting. This Constitutional and statutory framework is consistent with the voting

guarantee among the rights recognized by Article 5 of the Convention.

2. Federal Legislation

Since the Civil War, Congress has adopted a number of statutes designed to supplement and

expand upon the prohibitions of the Thirteenth, Fourteenth and Fifteenth Amendments in an effort

to eliminate racial discrimination in a broad range of governmental, economic and social activity.
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(a) The 1866 and 1871 Civil Rights Acts. These post-Civil War, Reconstruction Era statutes

prohibit racial discrimination in both the civil and criminal arenas. As codified at 42 U.S.C. sec.

1981-85, racial discrimination is prohibited in the making and enforcement of private contracts,

including employment, education, health care and recreational facilities (sec. 1981) and in the

inheritance, purchase, sale or lease of real and personal property (sec. 1982). They also create a cause

of action for civil damages against anyone who under “color of law” subjects another to unlawful

discrimination (sec. 1983), as well as those who conspire to deprive individuals of their federally

secured rights (sec. 1985). Similar prohibitions apply in the criminal context, including the

prohibition against conspiracies (public or private) to “injure, oppress, threaten or intimidate” any

person in the exercise of any Constitutional or other federally protected right (18 U.S.C. sec. 241);

and against the willful deprivation of rights under “color of law” (18 U.S.C. sec. 242) (used most

frequently to prosecute law enforcement officials for acts of excessive force).

With its review of The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, in 1873 the U.S.

Supreme Court had its first opportunity to examine the scope of the Reconstruction amendments to

the U.S. Constitution, and thereby establish the extent of the federal government’s authority to

legislate in the area of civil rights. In rejecting a Thirteenth and Fourteenth Amendment challenge

to a Louisiana statute granting a monopoly to engage in the slaughterhouse business in New Orleans,

the Court concluded that neither the Thirteenth Amendment nor the privileges and immunities or due

process clauses of the Fourteenth Amendment could be interpreted to create a prohibition against

discrimination by the States against groups of their citizens. Such a reading, the Court held, would

“radically [change] the whole theory of the relations of the State and Federal governments to each

other and both of these governments of the people.”

The Supreme Court’s opinion in the Slaughter-House Cases substantially slowed the

momentum to provide federal civil rights protections during the Reconstruction Era. Based on the

Court’s reasoning, numerous statutes enacted for the protection of the newly freed slaves were

invalidated. This judicial dismantling of Reconstruction Era legislation was accompanied by a

collapse in the political coalition behind the Reconstruction movement. The result was a hodgepodge of state civil rights protections, many of which were either weak, non-existent, or rarely

enforced. It was not until the mid-twentieth century and the passage of the Civil Rights Act of 1964,

when strong, comprehensive federal protection for civil rights was established.

(b) The Civil Rights Act of 1964. Often described as the most important civil rights

legislation in U.S. law, this statute prohibits discriminatory acts involving public accommodation

(Title II), education (Title IV), federally-funded programs (Title VI) and employment (Title VII).

This legislation has been repeatedly amended in the years since 1964. See, e.g., Pub.L. 102-166

(1991) (establishing the burden of proof in Title VII disparate impact cases, prohibiting the

discriminatory use of test scores, refining the definition of an unlawful business practice, and

extending coverage to U.S.-controlled foreign corporations); Pub.L. 92-261, sec. 2(2) (1972)

(extending the statute to state and local government employers, eliminating the exemption for the

employment of individuals engaged in the educational activities of non-religious educational

institutions, and extending its coverage to applicants for employment or membership in

organizations); see also Glass Ceiling Act, Pub.L.102-166, Title II (1991) (establishing a commission

to study issues related to the under-representation of women and minorities in management and
24

decision-making positions in business).

(i) Title II of the Act, codified at 42 U.S.C. sec. 2000a, prohibits discrimination on the basis

of “race, color, religion or national origin” in places of “public accommodation,” which are defined

to include establishments affecting commerce that are hotels, motels and other lodging, restaurants

and other places serving food, theaters, concert halls, sports stadiums and other places of

entertainment or exhibition and gasoline stations.

(ii) Title IV, codified at 42 U.S.C. sec. 2000c et seq., provides for the orderly desegregation

of public schools and for non-discriminatory admissions to public colleges and universities.

(iii) Title VI, codified at 42 U.S.C. sec. 2000d et seq., provides that no person in the United

States shall be excluded from participation in, or denied the benefits of, any federally-funded or

assisted program or activity on account of race, color or national origin. This provision has had a

particularly salutary effect in the continuing efforts to eliminate de jure school and housing

segregation.

(iv) Title VII, codified at 42 U.S.C. sec. 2000e et seq., is the primary federal statute

addressing discrimination in employment. Subject to certain exceptions, it prohibits discrimination

on the basis of, inter alia, race, color and national origin in hiring, compensation, conditions of

employment and dismissals by employers (defined as those that employ more than fifteen

employees), labor organizations and employment agencies affecting commerce. In addition,

employers are prohibited from engaging in intentional discrimination on the basis of race by 42

U.S.C. section 1981. Complaints under Title VII are initially filed with the Equal Employment

Opportunity Commission. Those complaints filed against state or local government employers can

be referred to the Department of Justice for enforcement in federal court. In 1991, Congress

amended Title VII to provide additional remedies for intentional discrimination in the workplace.

(c) The Voting Rights Act of 1965. Among the most fundamental rights in any democratic

system is the right to participate freely in the government of one’s country without discrimination

on the basis of race, color or national origin. In the United States, the Fifteenth Amendment, ratified

in 1870, prohibits denial or abridgement of the right to vote on account of race, color or previous

condition of servitude. While in the northern, non-slave-holding states, Blacks frequently (but not

uniformly) were already enfranchised, the Fifteenth Amendment and legislation adopted at that time

to enforce it did not lead to the permanent enfranchisement of Blacks in the former slave-holding

states. In response to the Fifteenth Amendment, many states, through a combination of physical and

economic coercion and through the use of state legal systems, almost totally excluded Blacks from

the political process in several southern states by the end of the 19th century. Through the work of

civil rights activists such as Martin Luther King, Jr., the NAACP Legal Defense Fund and others,

a nation-wide political movement created a sea-change in the country by the middle of the 20th

Century.

As a result, through a series of lawsuits decided by the Supreme Court of the United States,

Civil Rights Acts enacted by the United States Congress in 1957, 1960, and 1964, and especially the
25

Voting Rights Act of 1965, Blacks and other racial and ethnic minorities have gained the right to

vote free from racial discrimination in every part of the United States.

The Voting Rights Act has been extended or strengthened by Congress on several occasions

(1970, 1975, 1982, and 1992) and has been interpreted or amended to protect all racial or ethnic

minority groups, including language minorities. The Act authorizes the United States Attorney

General and private parties to bring lawsuits in federal court to enforce the Fifteenth Amendment

to ensure that minority voters are afforded an equal opportunity to elect their candidates of choice

to state, local, and federal office. The Act also bans the use of literacy tests and other tests and

devices which had been applied in a discriminatory manner to disqualify eligible minority applicants

from being able to register to vote. In addition to general provisions banning discriminatory

practices that apply to the entire nation, the Act has specialized mechanisms that apply to areas of

the country with the most severe history of discrimination against Blacks. This part of the Act

requires federal pre-approval for any proposed changes in voting laws and practices to prevent the

implementation of new discriminatory laws and practices; authorization of federal observers to

monitor elections to assure that minority voters are permitted to vote free from discrimination or

intimidation, and that their votes are actually counted; and the provision of bilingual voting

information and assistance is required in certain areas of the country.

(d) The Fair Housing Act. This statute, originally enacted as Title VIII of the Civil Rights

Act of 1968 and amended by the Fair Housing Amendments Act of 1988, is codified at 42 U.S.C.

sec. 3601-19. It prohibits discrimination on the grounds, inter alia, of race, color, religion, or

national origin in the sale or rental of housing as well as in other real estate related transactions (i.e.,

lending, insurance, and appraisal practices) and brokerage services. Exceptions are provided for

private clubs, single family dwellings and owner-occupied boarding houses with no more than three

other family units, except when the owner uses the services of real estate brokers or others. It also

includes a criminal provision, 42 U.S.C. sec. 3631, which makes it a federal crime for any person

to use force or the threat of force willfully to injure, intimidate, or interfere with, or attempt to injure,

intimidate or interfere with any person because of his or her race, color, religion, sex or handicap,

and because he or she is exercising federally protected housing rights. This statute is used, for

example, to prosecute cross-burnings and other racially-motivated threats and violence directed at

people in their homes. 

(e) Civil Rights Act of 1968. One of the statutes promulgated under this Act was 18 U.S.C.

sec. 245, a criminal statute which, inter alia, prohibits any person from using force or willful threats

to injure, intimidate, or interfere with, or attempt to injure, intimidate or interfere with any person

because of his or her race, color, religion or national origin, and because he or she is engaging in

certain federally protected rights, including rights related to education, employment, and the use of

public facilities and establishments which serve the public.

(f) Protection of Religious Property. Passed in 1988, and amended in 1996, 18 U.S.C.

section 247 makes it a crime to deface, damage or destroy religious property because of the race,

color, or ethnic characteristics of any individual associated with that property. This statute has been

used, for example, to prosecute racially-motivated church arson, and the painting of anti-Semitic

graffiti on and within a Jewish synagogue.
26

(g) American Indian Religious Freedom Act, 42 U.S.C. sec. 1996. Enacted in 1978, then

amended in 1996, this Act resolves that it shall be the policy of the United States to protect and

preserve for the American Indian, Eskimo, Aleut and Native Hawaiian the inherent right to freedom

to believe, express and exercise their traditional religions, including, inter alia, access to religious

sites, use and possession of sacred objects and freedom to worship through ceremonial and

traditional rites. Federal agencies are directed to evaluate their policies and procedures to determine

if changes are needed to ensure that such rights and freedoms are not disrupted by agency practices.

The courts have interpreted this act to require that the views of Indian leaders be obtained and

considered when a proposed land use might conflict with traditional Indian religious beliefs or

practices, and that unnecessary interference with Indian religious practices be avoided during project

implementation.

(h) Protection of Traditional Rights in American Samoa, 48 U.S.C. sec. 1661(a). In 1929

the Congress accepted and ratified the cessions of Tutuila and Aunu’u (1900) and Manu’a (1904)

by the islands’ traditional leaders and thereby confirmed that the Federal government would “respect

and protect the individual rights of all people dwelling in Tutuila and Aunu’u to their lands and other

property” and “no[t] discriminat[e] in the suffrages and political privileges between the present

residents of said Islands [Manu’a] and citizens of the United States dwelling therein, and also

[recognize] . . . the rights of . . . all people concerning their property according to their customs.”

(i) Equal Credit Opportunity Act, 15 U.S.C. sec. 1691 et seq. The Equal Credit Opportunity

Act makes it unlawful for any creditor to discriminate in a credit transaction on the basis of race,

color, religion, national origin, sex, marital status, age, or source of income (e.g., public benefits).

Enforcement has focused on all aspects of the lending process from marketing to underwriting and

pricing. For example, in 1997 the U.S. Department of Justice filed and settled a case alleging that

Albank of New York engaged in so-called “redlining” by refusing to take mortgage loans from areas

with significant minority populations. The settlement included an agreement by the bank to provide

$55 million dollars at below market rates to previously redlined areas. Cases have been brought on

behalf of Blacks, Hispanics, Native Americans, women and the elderly both in major metropolitan

areas such as Boston and Los Angeles and in less populated areas such as Mississippi and South

Dakota. 

(j) Violent Crime Control and Law Enforcement Act of 1994. The Violent Crime Control

and Law Enforcement Act of 1994 includes a provision, 42 U.S.C. sec. 14141, that authorizes the

Department of Justice to file suit to enjoin a pattern or practice of unconstitutional or unlawful

conduct by a state or local law enforcement agency. Misconduct that may be addressed includes

discriminatory police practices, use of excessive force, false arrests, and improper searches and

seizures.

(k) Anti-discrimination Provision of the Immigration and Nationality Act (INA), 8 U.S.C.

sec. 1324b. This law was enacted in 1986 in response to concerns that employers, faced with

sanctions against knowingly hiring unauthorized immigrants, would refuse to hire people they

perceived to be foreign based on their accent or appearance. The law prohibits citizenship status and

national origin discrimination with respect to hiring, firing, or referral or recruitment for a fee. The
27

law also prohibits unfair documentary practices with respect to employment eligibility verification.

 All U.S. citizens and nationals and work-authorized immigrants are protected from national origin

discrimination and unfair documentary practices. U.S. citizens and nationals, permanent residents,

asylees, refugees, and temporary residents are protected from citizenship status discrimination

(l) Youth Conservation Corps Act of 1970, 16 U.S.C. sec. 1704. This Act requires

assurances of nondiscrimination in employment within the State Youth Conservation Corps in order

for states to receive funds to cover Youth Conservation Corps projects.

(m) Emergency Insured Student Loan Act of 1969, 20 U.S.C. sec. 1078(c)(2)(F). This act

requires adequate assurances that the loan guaranty agency will not engage in any pattern or practice

which results in a denial of a borrower's access to loans under this part because of the borrower's

race, sex, color, religion, national origin, age, disabled status, income, attendance at a particular

eligible institution within the area served by the guaranty agency, length of the borrower's

educational program, or the borrower's academic year in school.

(n) Higher Education Act of 1965, 20 U.S.C. sec. 1011 et seq. This law provides funds to

higher education institutions and prohibits the schools from using these funds in programs or

contracts with discriminatory provisions barring students on the basis of race, national origin, sex,

or religion. Through subsequent amendments, particularly those made in 1992 and in 1998, the Act

has added programs which provide insurance assistance to historically Black colleges and

universities, Hispanic serving institutions, and tribal colleges, and which encourage youth from

disadvantaged backgrounds to gain early awareness and readiness for post-secondary education, e.g.

through the “Gear-Up” program, which funds partnerships of high-poverty middle schools, colleges

and universities, community organizations, and businesses.

(o) Bilingual Education Act of 1967, 20 U.S.C. sec. 7401 et seq. This statute was enacted

to ensure equal educational opportunities for all children and youth, through developing and funding

programs to assist limited-English proficient children meet the same standards for academic

performance expected of all children. 

(p) The Equal Educational Opportunities Act of 1974, 20 U.S.C. sec. 1703. This law

requires the provision of equal educational opportunities in all public schools, whether or not they

are federally funded, and it prohibits discrimination on the basis of race, national origin, color, or

sex; including the failure to take appropriate action to overcome language barriers that impede equal

participation in instructional programs.

(q) Elementary and Secondary Education Act of 1965, 20 U.S.C. sec. 6301 et seq. This Act

provides federal aid to elementary and secondary schools, reinforcing the civil rights protections

included in the 1964 Civil Rights Act. In particular, it provides for services to meet the special

education needs of educationally deprived children, especially those children from low-income

families.

(r) Federal Family Education Loan Program, 20 U.S.C. sec. 1087-1(e)(3). This Act provides

special allowance payments for loans financed by proceeds of tax-exempt obligations. It prohibits
28

denial of a borrower's access to loans under this part because of the borrower's race, sex, color,

religion, national origin, age, handicapped status, income, attendance at a particular eligible

institution, length of the borrower's educational program, or the borrower's academic year in school.

(s) Improving America’s Schools Act of 1994, 20 U.S.C. sec. 7502(b)(4). This Act applies

to any federally assisted education program. It prohibits exclusion of students on the bases of

surname or language-minority status. This Act also made far-reaching changes in the Elementary

and Secondary Education Act to enable schools to provide opportunities for children to meet

challenging State content and performance standards.

(t) Alaska Natural Gas Transportation Act of 1976, 15 U.S.C. sec. 719o. This Act provides

funding for delivery of Alaska natural gas. It requires implementation of affirmative action policies

to prevent discrimination on the basis of race, color, national origin, sex or religion in the issuance

of certificates, permits, rights-of-way, leases, or other authorizations under this Act.

(u) Federal Energy Administration Act of 1974, 15 U.S.C. sec. 775. This Act also addresses

funding for the delivery of Alaska natural gas. It requires implementation of affirmative action

policies to prevent discrimination in programs given certificates, permits, right-of-ways, lease, or

other authorizations under this Act. It prohibits discrimination based on race, color, national origin,

sex, or religion.

(v) Federal Nonnuclear Energy Research and Development Act of 1974, 42 U.S.C. sec.

5919(v). This Act provides funds for developing new non-nuclear energy options. It prohibits

discrimination based on race, color, national origin, sex, or religion.

(w) Energy Conservation in Existing Buildings Act of 1976, 42 U.S.C. sec. 6870. This Act

provides weatherization assistance for low-income persons. It prohibits discrimination based on

race, color, national origin, sex, or any other factor specified in any federal law prohibiting

discrimination.

(x) Violent Crime Control and Law Enforcement Act of 1994, 31 U.S.C. sec. 6711. This Act

provides funding for crime prevention through education treatment, substance abuse or job programs.

 It prohibits discrimination based on race, color, national origin, sex, religion, age, and disability.

(y) Housing and Community Development Act of 1974 (Title I), 42 U.S.C. sec. 5309. This

Act authorizes the Community Development Block Grant. It prohibits discrimination based on race,

color, national origin, sex, religion, age, and disability.

(z) HOME Investment Partnerships Act / National Affordable Housing Act of 1975, 42

U.S.C. sec. 12832. This Act provides funding to increase affordable housing (including rental

housing) for very low-income Americans. It prohibits discrimination based on race, color, national

origin, sex, religion, age, and disability.

(aa) Mining and Mineral Resources Institutes Act of 1984, 30 U.S.C. sec. 1222. This Act

sets out recommendations regarding funding for mining and mineral resources research institutes.
29

 The Act stipulates that funding is to be provided without regard to, or on the basis of, race, sex or

religion.

(bb) Trans-Alaska Pipeline Authorization Act of 1973, 43 U.S.C. sec. 1651(note). This Act

provided funds for the construction of the Trans-Alaska Pipeline. It requires the implementation of

affirmative action policies to prevent discrimination on the bases of race, color, national origin, sex,

and religion in the issuance of certificates, permits, rights-of-way, leases or other authorizations

under the Act.

(cc) Federal Land Policy and Management Act of 1976, 43 U.S.C. sec. 1747(10). This Act

provides loans to states to relieve social/economic impacts from certain mining. It prohibits

discrimination on the bases of race, color, national origin, sex, and religion.

(dd) Outer Continental Shelf Lands Act Amendments, 43 U.S.C. sec. 1863. This Act

provides funds under the Outer Continental Shelf Lands Act and prohibits discrimination on the

bases of race, color, national origin, sex, and religion.

(ee) 48 U.S.C. sec. 1708. This section addresses conveyances of certain submerged land of

U.S. territories and prohibits discrimination on the bases of race, color, national origin, sex, religion

and ancestry in making such conveyances.

(ff) Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. sec. 3789d. This Act

provides funding for state and local justice system improvements. It prohibits discrimination on the

bases of race, color, national origin, sex, and religion.

(gg) Juvenile Justice and Delinquency Prevention Act of 1974, 42 U.S.C. sec. 5672. This

Act, enacted to provide federal assistance to juvenile justice programs nationwide, incorporates the

non-discrimination provisions of 42 U.S.C. sec. 3789d, which prohibit discrimination on the bases

of race, color, national origin, sex, and religion.

(hh) Justice Assistance Act of 1984, 42 U.S.C. sec. 10504. This Act provides assistance for

emergency law enforcement and incorporates non-discrimination provisions at 42 U.S.C. sec. 3789d,

which prohibit discrimination on the bases of race, color, national origin, sex, and religion.

(ii) Victims of Crime Act of 1984, 42 U.S.C. sec. 10604. This Act provides assistance for

emergency law enforcement and incorporates non-discrimination provisions at 42 U.S.C. sec. 3789d

which prohibit discrimination on the bases of race, color, national origin, sex, and religion.

(jj) Workforce Investment Act of 1998, 29 U.S.C. sec. 2938. This Act provides funding for

employment, training, literacy, and vocational rehabilitation programs. It prohibits discrimination

on the bases of race, color, national origin, sex, religion, age, disability, and political affiliation or

belief.

(kk) Foreign Assistance Act of 1961, 22 U.S.C. sec. 2314(g). This Act provides for foreign

assistance. It prohibits discrimination on the basis of race, national origin, sex, or religion against
30

U.S. persons participating in the furnishing of this assistance.

(ll) Federal-Aid Highway Act of 1968, 23 U.S.C. sec. 140. This Act provides employment

assurances for the receipt of funds for the federal-aid highway systems. It prohibits discrimination

on the basis of race, color, national origin, sex, or religion.

(mm) Federal Transit Act, 49 U.S.C. sec. 5332. This Act provides funds for mass

transportation programs and prohibits discrimination on the basis of race, color, national origin, sex,

religion, or age.

(nn) Airport and Airway Improvement Act, 49 U.S.C. sec. 47123. This Act provides funds

for airport and airway improvements and prohibits discrimination on the basis of race, color, national

origin, sex, or religion.

(oo) Domestic Volunteer Service/Volunteers in Service to America Act of 1973, 42 U.S.C.

sec. 5057. This Act provides funds to foster and expand voluntary citizen service in communities

throughout the nation in activities to help the disadvantaged. It prohibits discrimination on the basis

of race, color, national origin, sex, religion, age, political affiliation, or disability.

(pp) National and Community Service Act of 1990, 42 U.S.C. sec. 12635. This Act provides

federal assistance for national service as job or education training and prohibits discrimination on

the basis of race, color, national origin, sex, religion, age, disability, or political affiliation.

(qq) General Education Provisions Act, 20 U.S.C. sec. 1228a. This statute directs the

Secretary of Education to require an applicant for assistance under an applicable program

administered by the Department to describe in the application the steps the applicant proposes to take

to ensure equitable access to, and equitable participation in, the project or activity to be conducted

with such assistance by addressing the special needs of students, teachers, and other program

beneficiaries in order to overcome barriers to equitable participation, including barriers based on

gender, race, color, national origin, disability and age.

3. Federal Executive Action

The President has executive authority to direct the activities of federal agencies in furtherance

of the Constitution and laws of the United States. In exercise of this authority, the President has

issued executive orders that prohibit discrimination in federal programs and that encourage diversity

in the federal workplace to the extent that such actions are consistent with federal law. For example:

-- Executive Order 11246, signed on September 24, 1965, prohibits federal contractors and

subcontractors from discriminating in employment, and requires that they undertake affirmative

action to ensure equal employment opportunity without regard to race, color, sex, religion or national

origin. Generally, all contractors and subcontractors holding non-exempt federal and federally

assisted contracts and subcontracts worth more than $10,000 must comply with this Order.

-- To ensure that federal funding agencies effectively and consistently enforce their
31

responsibilities for ensuring their recipients do not discriminate, in 1980 President Carter issued

Executive Order 12250. Among other things, this order delegates to the Attorney General the

President’s authority to approve regulations under Title VI of the 1964 Civil Rights Act (prohibiting

discrimination on the basis of race, color, and national origin by recipients of federal financial

assistance). In addition, the Executive Order charges the Attorney General with leadership to

provide for the consistent and effective implementation of various laws prohibiting discriminatory

practices in federal programs and programs receiving federal financial assistance.

-- On January 17, 1994, in Executive Order 12892, President Clinton introduced new Fair

Housing initiatives in federal programs to ensure that all federal policies and programs across all

agencies support the fair housing and equal opportunity goals of the Fair Housing Act. The purpose

of this order was to remove all barriers to housing for lower income and minority Americans. The

Secretary of Housing and Urban Development and the Attorney General, the officials with primary

responsibility for the enforcement of federal fair housing laws, were assigned the task of developing

and coordinating measures to carry out the purposes of the Order. In addition, the Order established

an advisory council entitled the "President's Fair Housing and Urban Development Council" chaired

by the Secretary of Housing and Urban Development to review the design and delivery of federal

programs and activities and ensure that they support a coordinated strategy to affirmatively further

fair housing.

-- On February 11, 1994, in Executive Order 12898, President Clinton directed every federal

agency to identify and consider adverse human health or environmental effects of its programs,

policies, and activities on minority and low-income populations. The Order also established a

working group on environmental justice comprising the heads of the major executive agencies. The

working group's task was to coordinate, provide guidance and serve as a clearinghouse for the

Federal agencies on their environmental justice strategies.

-- On May 24, 1996, Executive Order 13007 was issued, calling upon federal agencies to

accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners and

to avoid adversely affecting the physical integrity of such sacred sites.

-- Executive Order 13021, issued on October 21, 1996, calls upon the federal government to

ensure that tribal colleges and universities are more fully recognized as accredited institutions, have

access to the opportunities afforded other institutions and have federal resources committed to them

on a continuing basis. The order also, among other objectives, calls on the federal government to

promote access to high quality education opportunity for economically disadvantaged students and the

preservation and revitalization of American Indian and Alaska Native languages and cultural traditions.

-- On August 6, 1998, President Clinton issued Executive Order 13096 on American Indian and

Alaska Native Education affirming the political and legal relationship of the Federal government with

tribal governments and recognizing the educational and culturally related academic needs of American

Indians and Alaska Native students. This Order established six goals, consistent with tribal traditions

and cultures, for improving educational achievement and academic progress for American Indians and

Alaska Natives. In order to achieve these goals, the Order also established, among other initiatives, an

interagency task force, which was tasked with developing a comprehensive interagency plan, research
32

agenda and policy for improving American Indian and Alaska Native educational achievement and an

interagency resource guide on federal education-related programs.

-- Executive Order 13084, Consultation and Coordination with Indian Tribal Governments, was

issued on May 14, 1998, requiring federal agencies to consult with tribes when developing regulatory

practices, policies, or regulations that significantly affect tribal interests. Among other things,

consultation with tribes helps to ensure that federal policymakers account for the often unique interests

and perspectives of tribes and their members. By doing so, it will help avoid developing policies that

might discriminate against Native American interests. In addition, by affirming the federal

government's commitment to Indian tribal rights, including treaty hunting and fishing rights, the

Executive Order serves an educational function that may, in turn, lessen racial tensions that sometimes

confront tribal members as they seek to exercise those rights.

-- Executive Order 13125 was signed by President Clinton on June 7, 1999 to improve the quality

of life of Asian Americans and Pacific Islanders (AAPIs) through increased participation in federal

programs where they are under-served. The Executive Order establishes the President’s Advisory

Commission on AAPIs and the White House Initiative on AAPIs. It mandates the development of an

integrated federal plan to respond to the needs of this population.

-- On June 9, 1999, President Clinton issued an Executive Memorandum requiring that the

Departments of Justice, Treasury and Interior design and implement systems for collecting data by race,

ethnicity, and gender relating to certain actions taken by law enforcement agents employed by these

Departments. The purpose of this data collection effort is to allow the federal government to determine

whether any of its law enforcement agencies is engaged in so-called “racial profiling.”

Federal agencies also have authority to adopt regulations to implement the programs they are

charged with administering. In many cases, these regulations include provisions prohibiting

discrimination by government agents and individuals and entities who receive services from the agency.

For example, all federal assistance agencies have regulations prohibiting race discrimination by

recipients of their assistance. A comprehensive listing of these regulations can be found on the web site

of the Coordination and Review Section of the Civil Rights Division found at

<http://www.usdoj.gov/crt/cor>.

4. State Anti-Discrimination Measures

Most states, and many large cities, have adopted their own statutory and administrative

schemes for protecting individuals from discrimination in fields actively regulated by state and local

governments. For example, state constitutions and statutes typically protect individuals from

discrimination in housing, employment, public accommodations, government contracting, credit

transactions and education. As a result, a particular discriminatory act might well violate federal,

state and local law – each having its own sanctions. States may also provide protections which differ

from or exceed the minimum requirements of federal law. Where such protections exist, state or

municipal law also provides judicial or administrative remedies for victims of discrimination.

This re-enactment of similar or expanded protections at the state and local level serves
33

several important purposes. First, this process involves a broad range of legislators at all levels of

government taking positive steps toward the elimination of racial discrimination. This is important

both for the specific legislative action that results, and for the increased local participation in the

effort to eradicate race-based inequalities and racial intolerance. Thus, the effort to eliminate racial

discrimination occurs at the most basic political level. Second, the process usually involves the

creation of a state or local agency for the administrative enforcement of the protections involved.

This frequently involves the appointment of a local commission with the power to investigate

complaints and to enforce the legislation in question. Accordingly, enforcement offices are made

available at locations closer to, and more accessible by, the affected individuals. Since local officials

may more fully understand underlying issues and complexities in individual cases, adjudication of

cases by them may yield better public understanding.

For example, the Florida Commission on Human Relations was established in 1969, with the

enactment of the Florida Human Rights Act, for the purpose of enforcing Florida’s antidiscrimination laws. The Commission is both a policy-making and community organization and an

enforcer of anti-discrimination laws. The Commission is authorized to investigate and seek the

resolution of discrimination complaints – in housing, employment, public accommodations and

private club membership – through administrative and legal proceedings.

In Alaska, the State Commission for Human Rights, is responsible for enforcing the Alaska

Human Rights law, which makes it unlawful to discriminate in employment, housing, public

accommodations, finance and credit, and state political practices in all cases on the basis of race,

national origin, religion, sex, color, and physical or mental disability, and in some cases, on the basis

of age, pregnancy, marital status, parenthood, and changes in marital status.

Moreover, many municipalities have established agencies to monitor and enforce antidiscrimination legislation. In San Francisco, the Employment, Housing and Public Accommodations

Division of that city’s Human Rights Commission implements the San Francisco Charter and

Administrative Code, which prohibits discrimination in employment, housing, and public

accommodations. Division staff investigate and mediate complaints involving allegations of

discrimination and non-compliance, as well as prepare and promote community programs aimed at

reducing or eliminating inequalities and educate the community regarding the principles of equal

opportunity.

With regard to equal employment, there are 121 designated Fair Employment Practice

agencies created by state and local jurisdictions which investigate charges of race discrimination

under work-sharing agreements with the EEOC pursuant to Section 706 of the Civil Rights Act of

1964. These are identified at 29 Code of Federal Regulations Part 1601.74. There are also a number

of Tribal Employment Rights organizations which investigate charges of discrimination on or near

Indian reservations pursuant to work-sharing agreements with the EEOC. Examples of state laws

prohibiting race discrimination in employment are: the California Fair Employment and Housing

Act, Cal. Gov. Code § 12940; the New York Human Rights Law, N.Y. Exec. Law § 296; and the

Texas Commission on Human Rights Act, Tex. CA Labor § 21.051.

In subsequent reports to the Committee, the United States intends to discuss in greater detail
34

state and local measures taken to prevent racism and racial discrimination. As with protections at

the federal level, these measures are complex and comprehensive, therefore requiring a more detailed

discussion than was possible here.

B. U.S. Reservations, Understandings and Declarations

To ensure that U.S. law and policy were consonant with the obligations that it would assume

under the Convention, the United States entered certain reservations, understandings and declarations

to the Convention at the time of ratification. These related, inter alia, to: (a) the Convention's

prohibitions concerning advocacy and incitement, which to a certain extent are more restrictive than

U.S. constitutional guarantees of free expression and association, (b) the Convention's requirements

to restrict the activities of private persons and non-governmental entities, which in some instances

lie beyond the reach of existing U.S. law, and (c) the express extension of the Convention's

restrictions to all levels of political organization, which implicates the delicate relationship between

the state and federal governments in the U.S. political system. While these differences were

primarily ones of approach rather than substance, each nonetheless required clarification in the

context of U.S. ratification of the Convention.

In making these clarifications, the United States took particular note of Article 20, which

precludes reservations which are "incompatible with the object and purpose of the Convention" or

"the effect of which would inhibit the operation of any of the bodies established by the Convention."

The United States believes its reservations, understandings and declarations, which are an essential

element of its consent to be bound by this instrument, are compatible with its object and purpose;

they also do not inhibit the operation of any bodies established by the Convention. The United States

fully supports the goals of the Convention. In any event, paragraph 2 of Article 20 provides an

authoritative method of determining whether any reservation is incompatible or inhibitive in relation

to this Convention; namely, formal objection thereto by at least two-thirds of the States Parties to

the Convention . None of the conditions imposed upon U.S. ratification of this Convention have

been objected to in that manner.

1. Freedom of Speech, Expression and Association

Article 4 of the Convention expressly requires States Parties to condemn all propaganda and

all organizations based on ideas or theories of superiority of one race or group of persons of one

color or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any

form. States Parties are further required to take immediate and positive measures to “eradicate all

incitement to, or acts of, such discrimination,” inter alia, by (a) punishing the dissemination of ideas

based on racial superiority or hatred, incitement to racial discrimination, and acts of violence or

incitement to acts of violence, as well as the provision of assistance to racist activities, including

financing; (b) prohibiting organizations and activities which promote and incite racial discrimination,

including participation in such organizations and activities; and (c) preventing public authorities or

institutions, whether national or local, from promoting or inciting racial discrimination.

Article 7 imposes an undertaking on States Parties to take measures to combat prejudice and

promote tolerance in the fields of teaching, education, culture and information. These provisions
35

reflect a widely held view that penalizing and prohibiting the dissemination of ideas based on racial

superiority are central elements in the international struggle against racial discrimination. The

Committee itself has given a broad interpretation to Article 4, in particular emphasizing in General

Recommendations I (1972) and VII (1985) that the mandatory requirements of Article 4(a) and (b),

are compatible with the rights of freedom of opinion and expression. Many other States Parties to

the Convention have enacted and enforced measures to give effect to these requirements.

As a matter of national policy, the U.S. Government has long condemned racial

discrimination, and it engages in many activities both to combat prejudices leading to racial

discrimination and to promote tolerance, understanding and friendship among national, racial and

ethnic groups. Such programs include those under the authority of Title VI of the Civil Rights Act,

the Fair Housing Act, the Bilingual Education Act, the Mutual Educational and Cultural Exchange

Act of 1961, the International Education Act (Title VI of the HEA of 1965), and the National

Foundation on the Arts and the Humanities Act of 1965. Also, under U.S. law, federal tax money

cannot be used to support private entities (such as schools) that practice racial or ethnic

discrimination. Further, the Hate Crimes Statistics Act of 1990 mandates collection by the Justice

Department of data on crimes motivated by, inter alia, race.

However, American citizens applaud the fact that the First Amendment to the U.S.

Constitution sharply curtails the government's ability to restrict or prohibit the expression or

advocacy of certain ideas, however objectionable. Under the First Amendment, opinions and speech

are protected without regard to content. This is a cornerstone of American society that has as much

resonance with regard to modern forms of communication like the internet as with more traditional

modes of communication. Certain types of speech, intended and likely to cause imminent violence,

may constitutionally be restricted, so long as the restriction is not undertaken with regard to the

speech's content. For example, several federal statutes punish "hate crimes," i.e., acts of violence

or intimidation motivated by racial, ethnic or religious hatred and intended to interfere with the

participation of individuals in certain activities such as employment, housing, public

accommodation, use of public facilities, and the free exercise of religion. See, e.g., 18 U.S.C. sec.

241, 245, 247; 42 U.S.C. sec. 3631. An increasing number of state statutes are similarly addressed

to hate crimes, and while they too are constrained by constitutional protections, the U.S. Supreme

Court has recently determined that bias-inspired criminal conduct may be singled out for especially

severe punishment under state law. In two recent cases, the U.S. Supreme Court has addressed first

amendment issues in the context of hate crimes legislation. In R.A.V. v. City of St. Paul, 505 U.S.

377 (1992), the municipal ordinance in question made it a misdemeanor to “place on public or

private property a symbol, object, appellation, characterization, or graffiti, including, but not limited

to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses

anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” The Court

held that the statute unconstitutionally restricted freedom of speech on the basis of its content.

Notably, the Court did not find it unconstitutional to criminalize “hate speech” per se. Instead, a

majority of the Court held that a jurisdiction may not select only some kinds of hate speech to

criminalize while leaving other kinds unrestricted.
36

Then, in Wisconsin v. Mitchell, 508 U.S. 476 (1993), the Court addressed the issue of

enhanced penalties for crimes motivated by prejudice. Under the relevant state law, an individual

who was convicted of aggravated assault (an offense which normally carried a penalty of 2 years

imprisonment) was sentenced to an additional four years imprisonment because his crime had been

racially motivated.

The Wisconsin Supreme Court had found the statute to be in violation of the First

Amendment, as interpreted by the U.S. Supreme Court in R.A.V. v. City of St. Paul, because it

singled out the defendant’s biased thoughts and penalized him based on the content of those

thoughts. On appeal, the U.S. Supreme Court reversed the judgment and upheld the statute as

Constitutional. In a unanimous opinion, the Court held that while the St. Paul ordinance had

(impermissibly) targeted expression, the Wisconsin enhanced-penalty statute was aimed at

unprotected (indeed, criminal) conduct.

In subsequent decisions, federal and state courts have followed this distinction, generally

upholding statutes which punish specific behavior motivated by bias. For example, a federal

appellate court sustained the criminal prosecution under federal civil rights laws of a defendant who

had burned a cross on a Black family’s lawn, distinguishing that act done with intent to intimidate

from similar acts meant to make a political statement. United States v. Stewart, 65 F.3d 918 (11th

Cir. 1995), cert. denied sub nom. Daniel v. United States, 516 U.S. 1134. In T.B.D. v. Florida, 656

So.2d 479 (Fla. 1995), cert. denied, 516 U.S. 1145 (1996), Florida’s highest court upheld a statute

making it a misdemeanor to place a “a burning or flaming cross, real or simulated” on the property

of another without permission.

During the drafting of Article 4, the U.S. delegation expressly noted that it posed First

Amendment difficulties, and upon signing the Convention in 1966, the United States made a

declaration to the effect that it would not accept any requirement thereunder to adopt legislation or

take other actions incompatible with the U.S. Constitution. A number of other States Parties have

conditioned their acceptance of Article 4 by reference to the need to protect the freedoms of opinion,

expression, association and assembly recognized in the Universal Declaration of Human Rights.

In becoming a party to the International Covenant on Civil and Political Rights in 1992, the

United States faced a similar problem with respect to Article 20 of that treaty. In part because the

Human Rights Committee had adopted a similarly broad interpretation of that article in its General

Comment 11 (1983), the United States entered a reservation intended to make clear that the United

States cannot and will not accept obligations which are inconsistent with its own Constitutional

protections for free speech, expression and association. A similar reservation was therefore adopted

with respect to the current Convention. It reads:

[T]he 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.

2. Private Conduct
37

Given the breadth of the definition of "racial discrimination" under Article 1(1), the

obligation imposed on States Parties in Article 2(1)(d) to bring to an end all racial discrimination "by

any persons, group or organization," and the specific requirements of paragraphs 2(1)(c) and (d) as

well as Articles 3 and 5, the Convention may be viewed as imposing a requirement on a State Party

to take action to prohibit and punish purely private conduct of a nature generally held to lie beyond

the proper scope of governmental regulation under current U.S. law.

a. Fourteenth Amendment

Since the time of the Civil Rights Cases, 109 U.S. 3 (1883), the U.S. Supreme Court has

consistently held that the Fourteenth Amendment does not reach purely private conduct. Thus, the

Fourteenth Amendment can only be invoked to protect against conduct that is the result of “state

action.” The state action requirement of the Equal Protection Clause reflects a traditional recognition

of the need to preserve personal freedom by circumscribing the reach of governmental intervention

and regulation, even in situations where that personal freedom is exercised in a discriminatory

manner.

In determining whether “state action” is present in a given case, the critical inquiry under

U.S. domestic law is whether the conduct of a private party is "fairly attributable" to the state. Lugar

v. Edmonson, 457 U.S. 922, 937 (1982). Under that test, mere governmental involvement with

private parties is often insufficient to trigger a finding of state action. For example, in and of itself,

government licensing and regulation of private entities is not state action. Moose Lodge No. 107

v. Irvins, 407 U.S. 163 (1972) (licensing); Jackson v. Metropolitan Edison, 419 U.S. 345 (1974)

(regulation). The same is true for government contracting. Blum v. Yaretsky, 457 U.S. 991 (1982).

However, state employees acting under color of law are generally considered "state actors." West

v. Atkins, 487 U.S. 42 (1988). In addition, the Supreme Court has held that the following constitute

state action: the private performance of "public functions," Marsh v. Alabama, 326 U.S. 501 (1946);

judicial enforcement of private discriminatory arrangements such as restrictive covenants on

property, Shelley v. Kraemer, 334 U.S. 1 (1948); certain forms of governmental assistance or

subsidies to private parties, Norwood v. Harrison, 413 U.S. 455 (1973); and state encouragement of

discrimination by private parties, Reitman v. Mulkey, 387 U.S. 369 (1967).

b. Thirteenth Amendment

On the other hand, the Thirteenth Amendment's prohibition against slavery and involuntary

servitude encompasses both governmental and private action. Civil Rights Cases, 109 U.S. 3, 20

(1883). The U.S. Supreme Court has held that Congress may regulate private conduct under sec. 2

of the Thirteenth Amendment, which provides that "Congress shall have the power to enforce this

article by appropriate legislation." Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). Such power

includes determining what constitutes the "badges and incidents of slavery and the authority to

translate that determination into effective legislation." See also United States v. Kozminski, 487

U.S. 931, 942 (1988) (discussing Thirteenth Amendment right to be free from involuntary servitude).

Although Jones could be read as authorizing Congress to regulate a broad array of harms on
38

the ground that they were a form of servitude and slavery, the Court has not had the opportunity to

define the outer limits of Jones. The Court has intimated, however, that "some private

discrimination ... in certain circumstances" is subject to legislation under Section 2 of the Thirteenth

Amendment. See Norwood v. Harrison, 413 U.S. 455, 470 (1973). For instance, the Reconstruction

Era civil rights statutes discussed above (42 U.S.C. sec. 1981, 1982 and 1983, which create a cause

of action against any person who, acting under color of state law, abridges rights created by the

Constitution), have been used to prohibit private actors from engaging in racial discrimination in a

variety of activities, including the sale or rental of private property, see Jones, 392 U.S. at 413; the

assignment of a lease, see Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969); and the grant

of membership in a community swimming pool, see Tillman v. Wheaton-Haven Recreation Ass'n.

Inc., 410 U.S. 431 (1973); the making and enforcement of private contracts, see Patterson v. McLean

Credit Union, 491 U.S. 164, 272 (1989); see also Runyon v. McCrary, 427 U.S. 160 (1976) (reaching

refusal of private school to admit Black students). Finally, section 1985(3) has been applied to some

private conspiracies. Compare Bray v. Alexandria Women's Health Clinic, 506 U.S. 263 (1993)

(demonstration against abortions clinics was not within the scope of statute) with Griffin v.

Breckenridge, 403 U.S. 88 (1971) (conspiracy to deprive Blacks of right of interstate travel was

within the reach of statute).

c. Commerce and Spending Powers

In addition to the Thirteenth Amendment, Congress may regulate private conduct through

the Commerce and Spending powers it possesses under Article I of the Constitution. For example,

it was under the Commerce Clause that Congress passed Title II and Title VII of the 1964 Civil

Rights Act, which prohibit private entities from discriminating in public accommodations and

employment. See Katzenbach v. McClung, 379 U.S. 294 (1964). The Fair Housing Act is similarly

grounded in the Commerce Clause. Further, it was under Congress’ Spending Power as well as

under its authority under Section 5 of the Fourteenth Amendment, that Congress passed Title VI of

the 1964 Civil Rights Act, which prohibits discrimination by public and private institutions that

receive federal funds. Lau v. Nichols, 414 U.S. 563 (1974). 

Arguably, the reference to "public life" in the definition of "racial discrimination" in Article

1(1) of the present Convention might be read to limit the reach of its prohibitions to actions and

conduct involving some measure of governmental involvement or "state action." The negotiating

history of the Convention is far from clear on this point, however, and it is not possible to say with

certainty that the term "public life" as contemplated by the drafters is synonymous with the

permissible sphere of governmental regulation under U.S. law. Moreover, the Committee appears

to have taken an expansive view in this regard, finding in the Convention a prohibition against racial

discrimination perpetuated by any person or group against another. Accordingly, some forms of

private individual or organizational conduct that are not now subject to governmental regulation

under U.S. law could well be found within the sphere of "public life" as that term is interpreted under

the Convention.

Accordingly, it was appropriate to indicate clearly, through a formal reservation, that U.S.

undertakings in this regard are limited by the reach of constitutional and statutory protections under

U.S. law as they may exist at any given time:
39

[T]he 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.

3. Dispute Settlement

In accordance with its long-standing policy, the United States also conditioned its adherence

to the Convention upon a reservation requiring its consent to the exercise of the jurisdiction of the

International Court of Justice over any dispute that might arise between it and another State Party.

The text of this reservation is identical to those recently taken upon ratification of other treaties,

including the ICCPR:

[W]ith 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.

4. Federalism

Given its Constitutional roots and its embodiment in the extensive statutory provisions

enacted by Congress over the decades, federal anti-discrimination law is pervasive and reaches

federal, state and local levels of government. Where Constitutionally permissible, it provides the

basis for broad regulation of racially-discriminatory conduct at the private level. Nonetheless,

because the Congress is a legislature of limited jurisdiction, it must find authority for its statutes

somewhere in the U.S. Constitution, e.g., through Section 5 of the Fourteenth Amendment, the

Commerce Clause or the Spending Clauses. In those limited circumstances where the Constitution

does not permit the application of federal anti-discrimination laws, state and local governments have

some authority to act. Under the Tenth Amendment to the Constitution, “[t]he powers not delegated

to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States

respectively, or to the people.” Thus, the state and local governments retain a fairly substantial range

of actions within which to regulate or prohibit discriminatory actions. In some instances, state and

local governments have exercised their inherent authority by adopting statutes and administrative

regulations providing powerful and effective protections against, and remedies for, private

discrimination based on race, color, ethnicity and national origin. Indeed, in some states, courts have

interpreted their state constitutions to provide even broader protections against discrimination than

under federal law.

Because the fundamental requirements of the Convention are respected and complied with
40

at all levels of government, the United States concluded there was no need to preempt these state and

local initiatives or to federalize the entire range of anti-discriminatory actions through the exercise

of the Constitutional treaty power. Indeed, there is no need for implementing legislation providing

the Federal Government with a cause of action against the constituent states to ensure that states

fulfill the obligations of the Convention. Subject to the constraints imposed by our federal system,

the Federal Government already has the authority under the Constitution and the federal civil rights

laws to take action against states to enforce the matters covered by the Convention.

It is important to stress that this understanding is not a reservation. It does not condition or

limit the international obligations of the United States. Nor can it serve as an excuse for any failure

to comply with those obligations as a matter of domestic or international law. Instead, it addresses

a specific and sensitive aspect of the fundamental governmental structure of the United States. As

an aspect of the modality of implementation in domestic law, this understanding is entirely within

the discretion of the United States as a State Party and contravenes no provision of the Convention.

In ratifying the International Covenant on Civil and Political Rights in 1992, the United

States addressed this issue through adoption of an interpretive understanding, the effect of which was

to clarify that the United States will carry out its obligations in a manner consistent with the federal

nature of its form of government. A similar understanding was adopted for the Torture Convention

as well as for the current Convention:

[T]he 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 fulfillment of this Convention.

5. Non-Self-Executing Treaty

In ratifying the Convention, the United States made the following declaration:

[T]he United States declares that the provisions of the Convention are not self-executing.

This declaration has no effect on the international obligations of the United States or on its

relations with States Parties. However, it does have the effect of precluding the assertion of rights

by private parties based on the Convention in litigation in U.S. courts. In considering ratification

of previous human rights treaties, in particular the U.N. Convention Against Torture and Other

Cruel, Inhuman and Degrading Treatment or Punishment (1994) and the International Covenant on

Civil and Political Rights (1992), both the Executive Branch and the Senate have considered it

prudent to declare that those treaties do not create new or independently enforceable private rights

in U.S. courts. However, this declaration does not affect the authority of the Federal government to

enforce the obligations that the United States has assumed under the Convention through

administrative or judicial action.

As was the case with prior human rights treaties, existing U.S. law provides protections and

remedies sufficient to satisfy the requirements of the present Convention. Moreover, federal, state
41

and local laws already provide a comprehensive basis for challenging discriminatory statutes,

regulations and other governmental actions in court, as well as certain forms of discriminatory

conduct by private actors. Given the adequacy of the provisions already present in U.S. law, there

was no discernible need for the establishment of additional causes of action or new avenues of

litigation in order to guarantee compliance with the essential obligations assumed by the United

States under the Convention.

This declaration has frequently been misconstrued and misinterpreted. Declaring the

Convention to be non-self-executing in no way lessens the obligation of the United States to comply

with its provisions as a matter of international law. Neither does it contravene any provision of the

treaty or restrict the enjoyment of any right guaranteed by U.S. obligations under the Convention.

 There is, of course, no requirement in the Convention that States Parties make it “self executing”

in their domestic law, or that private parties be afforded a specific cause of action in domestic courts

on the basis of the Convention itself. The drafters quite properly left the question of implementation

to the domestic laws of each State Party. 

The United States is aware of the Committee’s preference for the direct inclusion of the

Convention into the domestic law of States Parties. Some non-governmental advocacy groups in the

United States would also prefer that human rights treaties be made “self-executing” in order to serve

as vehicles for litigation. The declaration reflects a different choice, one in favor of retaining

existing remedies for private parties.

C. Specific Articles

Against this background, the specific provisions of U.S. law that give effect to the

requirements of the Convention are indicated below.

ARTICLE 1

 A preliminary word is necessary about the Convention’s definition of “racial

discrimination.” Although the definition included in Article 1(1) contains two specific terms

("descent" and "ethnic origin") not typically used in federal civil rights legislation and practice, there

is no indication in the negotiating history of the Convention or in the Committee's subsequent

interpretation that those terms encompass characteristics which are not already subsumed in the

terms "race," "color," and "national origin" as these terms are used in existing U.S. law. See, e.g.,

Saint Frances College v. Al-Khazraji, 481 U.S. 604 (1987); Shaare Tefila Congregation v. Cobb, 481

U.S. 615 (1987); Roach v. Dresser Industrial Valve, 494 F. Supp. 215 (W.D. La. 1980). The United

States thus interprets its undertakings, and intends to carry out its obligations, under the Convention

on that basis.

ARTICLE 2

Under Article 2(1), States Parties to the Convention condemn and undertake to eliminate
42

racial discrimination in all its forms and by all appropriate means. To this end, this article specifies

a number of specific undertakings.

 (a) As required by Article 2(1)(a), racial discrimination by the government is prohibited

throughout the United States. The Fifth and Fourteenth Amendments guarantee that no public

authority may engage in an act or practice of racial discrimination against persons, groups of persons

or institutions. These prohibitions apply with equal force at the federal, state and local levels, and

all public authorities and institutions must comply. As indicated above, U.S. law extends this

prohibition to private organizations, institutions and employers under many circumstances. 

(b) Under Article 2(1)(b), States Parties undertake not to sponsor, defend or support racial

discrimination by any person. Such conduct is strictly prohibited in the United States. The U.S.

Constitution prohibits discrimination on the basis of race or other personal characteristics at every

level of government (federal, state, and local). Several federal statutes, including Title VI of the

Civil Rights Act of 1964, prohibit discrimination by state or local governments, or private entities,

that receive federal financial assistance. Not only does the U.S. government not sponsor, defend,

or support discrimination, but the Federal government is actively engaged in the enforcement of antidiscrimination statutes against public and private entities in the areas of discrimination in

employment, voting, housing and education.

 (c) Article 2(1)(c) requires States Parties to "take effective measures to review

governmental, national and local policies. . .which have the effect of creating or perpetuating racial

discrimination." Article 2(1)(c) also requires States Parties to "amend, rescind or nullify any laws

and regulations" that have such effects.

The United States satisfies the policy review obligation of Article 2(1)(c) through this

nation's legislative and administrative process, as well as through court challenges brought by

governmental and private litigants. U.S. law is under continuous legislative and administrative

revision and judicial review.

Executive and Administrative Review

White House. As previously discussed, on June 13, 1997, President Clinton launched the

President’s Initiative on Race through which he asked all Americans to join him in a national effort

to deal openly and honestly with racial differences. This year-long effort combined thoughtful study

of government policies, constructive dialogue, and positive action to address the continuing

challenge of how residents of the United States will live and work more productively as “One

America” in the 21st Century.

The President convened an Advisory Board of seven distinguished Americans to assist him

with the Initiative. The Advisory Board worked with the President to engage the many diverse

groups, communities, regions, and various industries in this country. The President asked the

Advisory Board to join him in reaching out to local communities and listen to Americans from all

different races and backgrounds, to achieve a better understanding of the state of race relations in

the United States. The Advisory Board also studied critical substantive areas in which racial
43

disparities are significant, including education, economic opportunity, housing, health care and the

administration of justice. Once the year-long effort was completed, the Advisory Board submitted

a report to President Clinton concerning its findings and recommendations for creative ways to

resolve racial disparities.

Based on the foundation laid by the Race Initiative and the Advisory Board’s Report,

President Clinton created the White House Office on the President’s Initiative for One America in

February 1999. The Initiative for One America is the first free-standing office in the White House

dedicated to the ongoing mission of ethnic, racial and religious reconciliation. The Office’s director

is an Assistant to the President, the highest staff-level position in the White House. The Initiative

for One America promotes the President’s goals of educating the American public about race,

encouraging racial reconciliation through opening a national dialogue on race, identifying and

advancing policies that can expand opportunities for racial and ethnic minorities, and coordinating

the work of the White House and federal agencies to carry out the President’s vision of One

America.

Department of Housing and Urban Development. The Department’s Office of Fair Housing

and Equal Opportunity is responsible for enforcing the Fair Housing Act, which prohibits

discrimination on the basis of race, color, religion, national origin, sex, handicap and familial status.

With a view toward increasing the effectiveness of its enforcement activities, the Department is

presently conducting a national housing discrimination study. Building upon previous studies

conducted in 1977 and 1989, this is the most sophisticated and comprehensive study of its kind. This

new study is a three-year project designed to examine housing practices in twenty urban and rural

localities per year (up to sixty localities in total). Through the use of paired testers (people of

different racial or ethnic backgrounds, matched for every other characteristic, such as income) HUD

will examine and evaluate patterns and trends in housing sales and rentals, and in mortgage lending.

Congress appropriated $7.5 million for the study in 1999 and $6.0 million in 2000. The results of

this study will enable the Department more effectively to focus its enforcement efforts, building upon

an existing aggressive enforcement program.

Department of Energy. In an effort to ensure equal and fair treatment for all of its employees,

the Department of Energy (DOE) has recently undergone a significant restructuring of its Office of

Civil Rights and a substantial reevaluation of security and practice policies which have been

criticized as discriminatory against Asian-Americans.

First, in response to numerous long-standing complaints that the Energy Department’s Office

of Civil Rights was unresponsive and hopelessly backlogged, and that it failed to address adequately

the needs of its employees, the Department embarked upon a wide-reaching reform project under the

endorsement of President Clinton’s Management Council.

Midway through the reform process, the Office of Civil Rights is rapidly becoming a case

study in recovery. The backlog of cases has been reduced by one-third, alternative dispute resolution

has been introduced to good result, and the morale of the office has been lifted substantially. 

Second, in the summer of 1999, the Secretary of Energy established the DOE Task Force
44

Against Racial Profiling. This 19 member body, which includes senior federal and contractor

officials, and a Civil Rights Commissioner, was chartered to (1) provide the Secretary with accurate

observations and assessments of workplaces within the Department nationwide and (2) provide the

Secretary with recommendations to ensure that policies against racial profiling within the DOE are

strengthened and carried out effectively. 

Including preliminary fact-finding delegations to the three nuclear labs, the Task Force

conducted nine site visits to a variety of DOE facilities from June through November. In addition,

four on-site consultations were made to corporations in the private sector that have been rated best

by their employees for diversity management and workplace excellence.

Department of Defense. Although the military is one of the most racially and ethnically

integrated institutions in the United States, inequities nevertheless persist. For this reason, policies

and practices are under continual review and revision to ensure conformance with the institution’s

long-standing commitment to equal opportunity and non-discrimination.

Over the years, Department of Defense leadership has remained vigilant in order to sustain

and improve the environment in which U.S. military members live and work. Unlike non-military

equal opportunity programs that are based in law, Department of Defense military equal opportunity

programs are based in Secretary of Defense policy. These programs are monitored internally through

a process of Service reports and a system of compliance investigations. Accountability is stressed

throughout the highest and lowest levels of the chain of command. Commanders at the unit level

use assessment surveys to measure the effectiveness of equal opportunity guidance, practices and

programs.

On November 22, 1999, the Secretary of Defense released two reports assessing equal

opportunity progress from a Department of Defense perspective: a report on the Career Progression

of Minority and Women Officers and a report on the Armed Forces Equal Opportunity Survey. Both

reports are available on the World Wide Web at <http://www.defenselink.mil/pubs/>.

The report on the Career Progression of Minority and Women Officers study affirms equal

opportunity successes while identifying areas that require continuing attention and effort. The study

addressed in part the perceptions of service members, but its main thrust was to examine

performance in providing equal opportunity in the military Services. The study determined that:

• From 1977 to 1997, representation of racial minorities and women among active duty

commissioned officers more than doubled, from 7 percent to 15.3 percent for minority

officers and from 5.9 percent to 14.1 percent for women officers. These patterns of

increasing minority and female representation were true for all four Services.

• Even during the post-Cold War force reduction, representation of women officers increased,

as did the representation of Blacks, Hispanics, and other minorities.

• Women and minorities tend to be concentrated in administrative and supply areas and

underrepresented in tactical operations, the area that yields two-thirds of the general and flag
45

officers of the Services. Women and minorities are very much underrepresented in some

fields such as aviation, although the trend is upwards.

• Compared to White men, promotion rates for White women are about the same. But

promotion rates for Black men and women are lower at some rank levels. Potential factors

contributing to the different promotion rates for minorities and women are: educational/precommissioning preparation, initial assignments contributing to a “slow start,” and limited

access to peer and mentor networks.

• Some minority and female members believe they are held to a higher standard than majority

race and male colleagues and feel they must pass “tests” to demonstrate their worth on the

job.

• Officers who felt they had been discriminated against generally believed that an individual,

rather than the military institution, committed the act.

• Many women and minority officers felt that, overall, they had been treated fairly and that the

equal opportunity climate was not better, but probably worse, in the private sector.

The report on the Armed Forces Equal Opportunity Survey provided similar and

corroborating information. The survey is the first of its kind and was administered to 76,000 military

members from the enlisted to the officer ranks. The survey results reflected areas where the

Department's actions have been successful and areas where the Department's actions require

attention. Some of the key findings were:

• There are differences in the way service members of different races and ethnic groups

perceived the state of equal opportunity. Black service members tended to be more

pessimistic about the degree of progress in equal opportunity than were members of other

race or ethnic groups.

• Many service members of all races and ethnic groups reported negative experiences they felt

were based on their race or ethnicity. Service members reported having had such experiences

both on military installations and in surrounding communities.

• Minority service members were more likely than Whites to report being unfairly punished.

Some 9 percent of Blacks, 6 percent of Hispanics, 5 percent of American Indian/Alaska

Natives, and 4 percent of Asian/Pacific Islanders reported being unfairly punished in

comparison to only 2 percent of Whites.

• Relatively small percentages of members in each racial/ethnic group said they experienced

an incident of harassment or discrimination related to the military personnel system.

• Service members perceived that there had been greater improvement in race and ethnic

relations in the military than in civilian society and that opportunities and conditions were

better in the military than in civilian society.
46

In the memorandum transmitting the Armed Forces Equal Opportunity Survey report to the

Secretaries of the Military Departments and the Chairman of the Joint Chiefs of Staff, Secretary of

Defense William Cohen wrote: "I am convinced that this important survey can inform our actions

as we work to improve our processes and practices that are designed to ensure equal opportunity for

fair treatment of all men and women in uniform. To this end, a complete electronic file of the survey

data is being provided to each Service to assist in their review and in the assessment of modifications

and improvements of Service programs and procedures that may be warranted." Secretary Cohen

followed this guidance with a call for a meeting of the Department's senior leadership to review the

survey results and the career progression report. 

The Department of Defense plans to use both the report on the Career Progression of

Minority and Women Officers and the report on the Armed Forces Equal Opportunity Survey to

evaluate the effectiveness of its efforts in equal opportunity into the next millenium.

Department of Education. The Department of Education regularly prepares reports on the

nation’s education system, which helps guide U.S. education policy and how it should address

disparities among students of different races, ethnicity and national origin. Most recently, the

Department’s “Condition of Education and the National Assessment of Educational Progress”

(NAEP) reflects progress in narrowing the education gap in the United States and provides insight

into how policy might be crafted to address existing disparities in education.

For instance, the 2000 Condition of Education report indicates that long-term NAEP trend

data show that the achievement gap between White and Black students has decreased over the past

30 years in reading.5 Despite such gains in the achievement of Black students, the average scores

of Black students remain lower than those of Whites at all ages tested. This gap exists when children

first enter school. The U.S. Department of Education’s Early Childhood Longitudinal Study found

that, in fall 1998, White kindergartners more likely than their Black peers to demonstrate proficiency

in reading and mathematical skills. Significantly, the rates of high school completion of Blacks have

risen more than those of Whites since the early 1970s. This advance substantially closed the gap

between the Black and White rates. Unfortunately, the gap between Hispanic and White rates of

completion has persisted and remains a continuing challenge. 

The rates of college completion for Black and Hispanic high school completers rose between

1971 and 1998. However, because the college completion rate for young White adults increased

faster, the gaps in higher education attainment between Whites and Hispanics and Whites and Blacks

have actually grown. Furthermore, Whites still enroll in college at higher rates than Blacks and

Hispanics.

In mathematics, the latest NAEP report reflects general progress. Overall, students’ scores

on the NAEP 1996 mathematics assessment increased for all three grades assessed (4, 8, and 12).

Scores were higher in 1996 than in 1992 for all three grades. Black and Hispanic students recorded

increases in their average mathematics scale scores for grades 4 and 12 over the period 1990 to 1996,

 

5 Both the NAEP and the 2000 Condition of Education Reports are available on the Department of Education web

site, <http://www.ed.gov>.
47

although the gaps between scores for these subgroups did not change in 1996.

Students also have demonstrated progress in reading. The NAEP 1998 Reading Report Card

indicated increases in average reading scores for grades 4, 8 and 12. At the fourth and twelfth

grades, the national average score was higher in 1998 than in 1994. At the eighth grade, the national

average score was higher in 1998 than in 1994 and 1992. At grade 4, for Black students, the average

reading score was higher in 1998 than in 1994. At grade 8, increases were evident for both White

and Black students. At grade 12, increases were evident for both White and Hispanic students.

The Department of Education uses studies like this to craft policy initiatives to address

educational disparities in the United States. Some examples include, inter alia, its support and

promotion of magnet schools, the elimination of segregation of English language learners, the

promotion of equity in testing, the identification of gifted and talented minority students, and

initiatives to increase minority enrollment in and graduation from institutions of higher learning.

Legislative Review

Employment. The statutory centerpiece of the nation’s effort to eliminate race discrimination

in employment is Title VII of the Civil Rights Act of 1964. This Act was the first piece of

legislation targeting race discrimination in employment since the post-Civil War era Civil Rights Act

of 1866. Passage of this Act was the product of the civil rights movement and the gradual process

of bringing race issues into the national conscience in the 1950s and 1960s. The original civil rights

bill proposed in 1963 primarily addressed voting rights, denial of public accommodations, and denial

of educational opportunities, but did not address employment discrimination. Employment

discrimination was excluded because at the time it was considered to be an explosive issue that

might defeat passage of the bill into law, just as many similar proposals had been defeated in the

past.

Notwithstanding the immense controversy over whether the bill should prohibit

discrimination in employment, the bill ultimately was amended to include Title VII. This title

prohibits discrimination in employment on the basis of race, color, national origin, religion and sex.

The types of prohibited employment discrimination include hiring, discharging, compensation, all

terms, benefits and conditions of employment, and any limits, segregation, or classifications that

would tend to deprive an individual of employment opportunities. 42 U.S.C. sec. 2000e-2(a).

Moreover, the statute covers not only employers, but also employment agencies and unions. 42

U.S.C. sec. 2000e-2(b) and (c). Title VII also created a new, independent, bi-partisan executive

agency, the Equal Employment Opportunity Commission (EEOC). Under Title VII, the EEOC was

charged with enforcing Title VII by investigating charges of discrimination and attempting to resolve

meritorious charges through conciliation. 

Under the original enactment of Title VII, the EEOC lacked the authority to enforce the law

in cases where the EEOC was unable to secure voluntary compliance. Between 1966 and 1971,

numerous bills were introduced in Congress to amend Title VII. Some of these proposals would

have granted cease and desist authority to the EEOC and expanded the scope of Title VII to include

all employers, while others would have eliminated the EEOC altogether. During this period,
48

statistics revealed a continuing high unemployment rate for racial minorities and a significant wage

gap between Blacks and Whites. By 1971, it was evident that the voluntary approach in Title VII

was inadequate to the task of eliminating employment discrimination.

In 1972, Congress enacted the Equal Employment Opportunity Act, substantially increasing

the scope of Title VII and strengthening its enforcement mechanisms. Coverage of the act was

expanded to include state and local governments, and the minimum number of employees or union

members necessary to subject an employer or a union to Title VII was reduced from 25 to 15. In

addition, the 1972 amendments created the first statutory mechanism for federal employees to pursue

employment discrimination claims against the federal government. Perhaps the most significant

change in the 1972 amendments was the granting of litigation authority to the EEOC. Under this

authority, the EEOC was empowered to file civil lawsuits in federal court after conducting an

investigation and finding reasonable cause to believe discrimination had occurred. The amendments

reserved for the Department of Justice the authority to file suit against state and local governments.

In 1990, a bill was introduced in Congress for the purpose of negating several decisions of

the Supreme Court that had diluted the protections of Title VII. At the same time, civil rights

advocates were proposing to expand the remedies available to victims of discrimination in the

workplace. Although controversial, the bill was ultimately enacted into law as the Civil Rights Act

of 1991. The Act contains many important provisions restoring protections eroded over time and

creating new remedies. For example, the Act authorized jury trials and compensatory and punitive

damages in cases of intentional discrimination. Previously, all trials were before judges, and

monetary remedies were limited to lost past and future salary. In addition, the Act recognized

“mixed motives” cases, whereby an employer violates Title VII if race was a motivating factor for

any employment practice, even though other factors also motivated the employment decision. While

the Act provided important substantive rights for victims of race discrimination, it did not resolve

certain important questions. For example, the Act did not define the “business necessity” defense

applicable to adverse impact claims, even though it was the subject of extended debate in Congress.

As the above example indicates, anti-discrimination laws undergo continuous revision in the

United States. State anti-discrimination legislation receives similar treatment in each individual state

legislature. The United States is committed – at all levels of government – to continue to review and

revise existing legislation to adapt to a changing environment and to further more effectively the

goals of the Convention.

Voting. By 1965, concerted efforts to break the grip of state-sponsored disfranchisement of

Black voters had been under way for some time, but had achieved only modest success overall and

in some areas had proved almost entirely ineffectual. The murder of voting-rights activists in

Philadelphia, Mississippi gained national attention, along with numerous other acts of violence and

terrorism. The conflicts culminated with the March 7, 1965 attack by Alabama state troopers on

peaceful voting rights marchers who were crossing the Edmund Pettus Bridge in Selma, Alabama

en route to the state capitol in Montgomery. This unprovoked act of violence persuaded the

President and Congress to overcome Southern legislators’ resistance to effective voting rights

legislation. President Johnson issued a call for a strong voting rights law and hearings began soon

thereafter on the bill that would become the Voting Rights Act.
49

Congress determined that the existing federal anti- discrimination laws were not sufficient

to overcome the resistance by state officials to enforcement of the 15th Amendment. The legislative

hearings showed that efforts by the Department of Justice to eliminate discriminatory election

practices through case-by-case litigation had been unsuccessful: as soon as one discriminatory

practice or procedure was proven to be unconstitutional and enjoined, a new one would be

substituted in its place and litigation would have to commence anew.

The resulting legislation, which President Johnson signed into law on August 6, 1965,

temporarily suspended literacy tests, and provided for the appointment of federal examiners (with

the power to register qualified citizens to vote), in those jurisdiction that were “covered” according

to a formula provided in the statute (now all or part of 16 states). In addition, under Section 5 of the

Act certain “covered” jurisdictions were required to obtain prior approval, or “pre-clearance,” from

the federal government (either the U.S. District Court in Washington, D.C. or the Attorney General

of the United States) before they were permitted to implement any new voting practices or

procedures. Section 2 of the Act, which closely followed the language of the Fifteenth Amendment,

applied a nationwide prohibition of denial or abridgment of the right to vote on account of race or

color.

Congress extended Section 5 for five years in 1970 and for seven years in 1975. With these

extensions Congress validated the Supreme Court’s broad interpretation of the scope of Section 5

pre-clearance. During the hearings on these extensions Congress heard extensive testimony

concerning the ways in which voting electorates were manipulated through gerrymandering,

annexations, adoption of at-large elections and other structural changes to prevent newly-registered

black voters from effectively using the ballot. Congress also heard extensive testimony about voting

discrimination that had been suffered by Hispanic, Asian and Native American citizens. In response

to this latter concern, the 1975 amendments added protections against discrimination in voting for

minority-language citizens.

In 1982, in response to the Supreme Court’s decision in Mobile v. Bolden (holding that the

Voting Rights Act prohibited only purposeful discrimination), and after extensive hearings, Congress

amended Section 2 of the Voting Rights Act to prohibit expressly state practices or procedures that

had the effect of discriminating against minority voters. This change has greatly strengthened the

enforcement efforts of both the Department of Justice and private parties. In addition, in 1982

Congress also renewed Section 5 of the Act for twenty-five years. 

Housing. For over 100 years after Reconstruction, governmental practices in the U.S.

contributed to segregated housing in the United States. For many years, the federal government itself

was responsible for promoting racial discrimination in housing and residential segregation. This

changed with the passage of the Fair Housing Act in 1968. Passage of this Act provided a sign of

hope that the terrible racial divisions within the country, reflected in the violence that enveloped the

Nation following the assassination of Dr. Martin Luther King Jr., could be healed. Declaring that

it is “the policy of the United States to provide, within constitutional limitations, for fair housing

throughout the United States,” the Act prohibited discrimination in housing on the basis of race,

color, religion, or national origin. At the time, the Act was hailed as “a detailed housing law,
50

applicable to a broad range of discriminatory housing practices and enforceable by a complete

arsenal of Federal authority.” Jones v. Alfred H. Mayer Co., 392 U.S. 409, 417 (1968). However,

this characterization of the 1968 Act was true only when contrasting the Act with prior existing law.

The “arsenal of Federal authority” provided by the 1968 Act was far from powerful or

complete. Indeed, the Supreme Court noted only a few years after Jones that “the Housing Section

of the Civil Rights Division had less than two dozen lawyers,” and concluded that “complaints by

private persons [were] the primary method of obtaining compliance with the Act.” Though the

Attorney General had brought some important cases, the authority to initiate enforcement actions

was limited to situations where there was a pattern or practice of discrimination or where a group

of persons had been denied rights granted by the Act, and such denial “raise[d] an issue of general

public importance.” In addition, the Act limited the Attorney General to seeking “preventive relief,”

which the courts construed as limited to equitable relief. Although the 1968 Act empowered HUD

to receive and investigate individual complaints of discrimination, neither HUD nor DOJ had

authority to initiate enforcement actions based on such complaints. The Act required individuals to

bring their own lawsuits if they desired judicial resolution of their claims.

In time, Congress recognized the impediments to effective Governmental enforcement of the

1968 Fair Housing Act and addressed them by passing the Fair Housing Amendments Act (FHAA)

of 1988. The 1988 Amendments expanded the Act to cover discrimination against persons with

disabilities and families with children and greatly expanded the Federal Government’s role in

enforcing the Fair Housing Act: the amendments gave both HUD and DOJ the authority to address

discriminatory complaints from individuals and gave DOJ specific authority to seek compensatory

and punitive damages for persons aggrieved by discrimination in both individual and

pattern-or-practice cases. In pattern-or-practice cases, the amended Act allows DOJ to seek civil

penalties of up to $50,000 for a first violation and up to $100,000 for subsequent violations of the

statute. This ability to obtain monetary relief greatly enhances DOJ’s authority. Defendants now

know that a suit by DOJ (or an administrative enforcement action by HUD) can mean costly damage

awards and civil penalties in addition to litigation expenses.

After the amended Act went into effect, the number of civil fair housing cases brought by

DOJ increased from approximately 15 to 20 in the years prior to the 1988 amendments to a peak of

194 cases in 1994.

Judicial Review

Both the federal and state judiciary provide extensive avenues for judicial review of both

anti-discrimination law and discriminatory practices in the United States. In the years since the

seminal case of Brown v. Board of Education, 347 U.S. 483 (1954), U.S. courts have played a key

role in the review of governmental, national and local policies that may have the effect of creating

or perpetuating racial discrimination. Four areas in which U.S. courts have been particularly active

in reviewing and shaping anti-discrimination law have been in employment, voting, housing and

education.

Employment. In the early years after the enactment of Title VII, many cases of race
51

discrimination were proven with direct evidence of a racial bias. Direct evidence is generally

understood as biased statements made or adopted by an employer’s decision-makers. However, as

employers became more aware of the prohibitions in the new law, race discrimination increasingly

took on more subtle forms. In 1973, the Supreme Court held in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973), that discrimination may also be proven by indirect, or circumstantial, evidence,

and it established the disparate treatment theory of proving discrimination. Specifically, McDonnell

Douglas established the elements of a prima facie case of race discrimination; the defendant’s burden

to articulate a legitimate, non-discriminatory reason for its actions; and the plaintiff’s burden to show

that the defendant’s articulated reason is a mere pretext for a discriminatory motive. This paradigm

continues to function, with only minor modifications, as the most common theory for proving race

discrimination. 

In 1971, the Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424 (1971), examined

the issue of whether race discrimination prohibited by Title VII includes cases where the employer

lacks a discriminatory motive. The Griggs decision established the adverse impact theory of proving

discrimination, holding that a plaintiff may prove race discrimination where an employer’s policy

or practice is neutral on its face, yet is discriminatory in operation and is not justified by business

necessity. The Supreme Court later established a more stringent test for establishing adverse impact

claims, but Congress restored and clarified the Griggs standard in the Civil Rights Act of 1991. 

Another commonly used method of proving race discrimination is the harassment theory.

Over the years, appellate courts have consistently held that Title VII prohibits racial harassment,

even where it entails no tangible job detriment. See, e.g., Daniels v. Essex Group, 937 F.2d 1264

(7th Cir. 1991); Vance v. Southwestern Bell Tel. & Tel. Co., 863 F.2d 1503 (11th Cir. 1989); Rogers

v. EEOC, 454 F.2d 234 (5th Cir. 1971). Under this theory of discrimination, an employer may

violate Title VII where it subjects employees to severe or pervasive unwelcome conduct because of

their race. Under certain circumstances, employers can even be vicariously liable for harassment by

co-workers.

Voting. The Voting Rights Act, enacted in 1965, did not include a provision prohibiting the

imposition of poll taxes, but instead, it directed the Attorney General to challenge its use. In Harper

v. Virginia State Board of Elections, 383 U.S. 663 (1966), the Supreme Court held Virginia's poll

tax to be unconstitutional under the 14th Amendment. Between 1965 and 1969 the Supreme Court

also issued several key decisions upholding the constitutionality of Section 5 and affirming the broad

range of voting practices for which prior federal approval (“preclearance”) was required. As the

Supreme Court stated in its 1966 decision upholding the constitutionality of the Act:

Congress had found that case-by-case litigation was inadequate to combat

wide-spread and persistent discrimination in voting, because of the inordinate

amount of time and energy required to overcome the obstructionist tactics invariably

encountered in these lawsuits. After enduring nearly a century of systematic

resistance to the Fifteenth Amendment, Congress might well decide to shift the

advantage of time and inertia from the perpetrators of the evil to its victims.

South Carolina v. Katzenbach, 383 U.S. 301, 327-28 (1966). See also Allen v. State Board of
52

Elections, 393 U.S. 544 (1969) (recognizing that gerrymandered district boundaries or at-large

elections could be used to dilute minority voting strength).

Some years later, in 1973 the Supreme Court held certain legislative multi-member districts

unconstitutional under the 14th Amendment on the ground that they systematically diluted the voting

strength of minority citizens in Bexar County, Texas. This decision in White v. Regester, 412 U.S.

755 (1973), strongly shaped litigation through the 1970's against at-large systems and gerrymandered

redistricting plans. However, in Mobile v. Bolden, 446 U.S. 55 (1980), the Supreme Court held that

any constitutional claim of minority vote dilution must include proof of a racially discriminatory

purpose. This requirement was widely seen as making such claims far more difficult to prove. As

noted above, Congress amended the Voting Rights Act in response to Mobile v. Bolden to prohibit

procedures or practices that have the effect of discrimination against minority voters.

In Shaw v. Reno (1993), the Supreme Court for the first time recognized an “analytically

distinct” equal protection claim for challenging a redistricting plan that allegedly constitutes a racial

classification. In Shaw, the Court held that five North Carolina voters had stated a claim under the

Equal Protection Clause in alleging that the state's congressional redistricting plan contained districts

shaped so dramatically irregular that they could only be viewed as having been drawn along racial

lines. In a series of subsequent cases, chief among them Miller v. Johnson in 1995 and Bush v. Vera

in 1996, the Court developed an elaborate framework for the adjudication of these Shaw claims.

Under that framework, the plaintiff’s initial burden is to show that the state used race as the

“predominant factor” in the design of the challenged district, “subordinat[ing] traditional race-neutral

districting principles . . . to racial considerations.” If the plaintiff makes this showing, the plan is

subject to strict scrutiny and will be held unconstitutional unless the state demonstrates that its use

of race was narrowly tailored to achieve a compelling state interest.

The appropriate application of this new constitutional cause of action — and its interaction

with the Voting Rights Act — has been the subject of great debate and the law in this area is still

evolve.

Housing. In the years since the enactment of the Fair Housing Act, there have been many

important decisions by the federal courts that have shaped housing discrimination law. See e.g.,

United States v.West Peachtree Tenth Corp., 437 F.2d 221, 228 (5th Cir. 1971) (setting forth a model

remedial decree for fair housing cases); United States v. City of Black Jack, 508 F.2d 1179 (8th Cir.

1974) (United States successfully challenged racially discriminatory zoning practices that had

precluded development of racially integrated, low-income housing in a St. Louis suburb); United

States v. Hunter, 459 F.2d 205 (4th Cir.), cert. denied, 409 U.S. 934 (1972) (holding that Section

804(c), 42 U.S.C. sec. 3604(c), prohibited the publication of an advertisement for an apartment in

a “White home” without violating the First Amendment).

Two of the most important Supreme Court cases in this area are Trafficante v. Metropolitan

Life Insurance Co., 409 U.S. 205, 209, 211 (1972) and Havens v. Coleman, 455 U.S. 365 (1982).

In Trafficante, the Supreme Court held that existing tenants in an all-White housing complex have

standing to sue under the Fair Housing Act to redress the landlord’s discrimination against Blacks

who desired to become tenants. In Havens, the Court held that fair housing “testers” (matched pairs
53

of Blacks and Whites who pose as homeseekers in order to detect whether the housing provider is

unlawfully discriminating) and fair housing organizations have a right to sue in federal court under

certain circumstances. After these two important Supreme Court decisions, standing under the Fair

Housing Act is as broad as Congress could have made it.

Education. The establishment of a judicial framework for eliminating race discrimination

in education began to evolve in the 1930s with challenges to the legalized denial of equal protection

of the laws. In San Diego, California, for example, children of Mexican descent challenged

segregation successfully in state court in Alvarez v. The Board of Trustees of the Lemon Grove

School District. (Superior Court of the State of California, San Diego, Petition for Writ of Mandate

No. 66625, February 13, 1931). Local school officials in Lemon Grove, California barred Mexican

students from the local school, instead directing them to a separate, inferior building. The children

refused to attend, and they challenged the school board. The state court ruled that the school board

had no legal right to segregate the children.

The assault in the federal courts began with an attack on the absence of professional and

graduate schools for Blacks. These efforts bore initial fruit in 1938 when the Supreme Court ruled

in Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938), that each state had a legal responsibility

to provide an equal education within its borders and ordered the admission of a Black student to the

School of Law at the State University of Missouri . In 1950, the Court also ruled in Sweatt v.

Painter, 339 U.S. 629 (1950), that the state of Texas violated the Fourteenth Amendment’s Equal

Protection Clause when it refused to admit the petitioner to the University of Texas Law School.

Led by future Supreme Court Justice Thurgood Marshall, Blacks directly challenged the

separation of the races in education in the seminal case of Brown v. Board of Education of Topeka

(Brown I). 347 U.S. 483 (1954). The Court noted the importance of education as “perhaps the most

important function of state and local governments,” and concluded, “in the field of public education

the doctrine of `separate but equal’ has no place. Separate educational facilities are inherently

unequal.”

Later, in concert with congressional action on the issue of equal educational opportunity, the

Supreme Court repeatedly required school districts to take action that achieved integration, rather

than merely removed legal barriers. The Supreme Court supported these requirements in Green v.

County School Board of New Kent County, 391 U.S. 430 (1968). Alexander v. Holmes County

Board of Education, 396 U.S. 19 (1969) and Swann v. Charlotte-Mecklenburg Board of Education,

402 US. 1, 30-31 (1971).

Then, in Keyes v. School District No. 1413 U.S. 189 (1973), the Court made clear that the

North and West were required to comply with the Court’s desegregation mandates. In Keyes, the

Court required the City of Denver to dismantle a school system that its school districts had

purposefully segregated. 

To deal with discrimination on the basis of race and ethnicity as complicated by language

differences, the Supreme Court determined in Lau v. Nichols, 414 U.S. 563 (1974), that the failure

of a school system to provide appropriate services to Chinese students who were no proficient in
54

English to allow meaningful participation in the educational process. It therefore constituted

discrimination under Title VI of the Civil Rights Act.

The Supreme Court has also dealt some blows to desegregation and equality in education.

 In San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 12-14, 55 (1973), the Court

held that the vastly unequal expenditures between different school districts did not violate the Equal

Protection Clause despite the concentration of minority students in districts with drastically lower

expenditures. In Milliken v. Bradley, 418 U.S. 717, 745 (1974), the Court excluded many suburban

districts from desegregation plans by limiting desegregation remedies to the school district in which

the constitutional violation occurred. As Whites rushed to the suburbs, this decision limited options

for desegregation in many cities that had large concentrations of minority students and few Whites.

Disparate Impact. With respect to the second obligation of Article 2(1)(c), practices that have

discriminatory effects are prohibited by certain federal civil rights statutes, even in the absence of

any discriminatory intent underlying those practices. Thus, such practices may be nullified under

the force of those statutes, consistent with Article 2(1)(c). This is true of the Voting Rights Act of

1965, which Congress amended in 1982 to make clear that practices that have a discriminatory effect

on minority voters violate Section 2 of that statute. The same is true under Title VII of the 1964

Civil Rights Act, the federal regulations implementing Title VI of the 1964 Civil Rights Act, and the

Fair Housing Act, as those statutes have been interpreted by the Supreme Court and lower courts.

 Griggs v. Duke Power Co., 401 U.S. 424 (1971) (Title VII); Guardians Ass'n v. Civil Serv. Comm'n,

463 U.S. 582 (1983) (Title VI implementing regulations); R. Schwemm, Housing Discrimination

Law and Litigation § 10.04 (1990) (noting that although the Supreme Court has yet to address the

issue, lower courts have uniformly held that disparate impact claims may be brought under the Fair

Housing Act, even in the absence of discriminatory intent). 

While evidence of a disparate impact alone can establish a violation of the Voting Rights

Act, the Fair Housing Act and Titles VI and VII of the 1964 Civil Rights Act, it is not sufficient to

demonstrate a Constitutional violation of equal protection (under the Fifth or Fourteenth

Amendments). In such cases, the plaintiff must establish that the challenged act was done with

discriminatory intent. See Washington v. Davis, 426 U.S. 229 (1976) (Equal Protection Clause);

General Building Contractors Ass'n, Inc. v. Pennsylvania, 458 U.S. 375 (1982) (18 U.S.C. sec.

1981); R. Schwemm, Housing Discrimination Law and Litigation § 10.04 (1990). This is not to say

that disparate impact is irrelevant in equal protection or Sections 1981 or 1982 litigation, however.

 Determining whether discriminatory purpose exists "demands a sensitive inquiry into such

circumstantial and direct evidence of intent as may be available." Arlington Heights v. Metropolitan

Housing Development Corp., 429 U.S. 252, 266 (1977). As the Supreme Court noted in Arlington

Heights, disparate impact "may provide an important starting point" for that inquiry. Id. Indeed,

where racial disparities arising out of a seemingly race-neutral practice are especially stark, and there

is no credible justification for the imbalance, discriminatory intent may be inferred. Casteneda v.

Partida, 430 U.S. 482 (1977). In most cases, however, adverse effect alone is not determinative, and

courts will analyze statistical disparities in conjunction with other evidence that may be probative

of discriminatory intent. Arlington Heights, 429 U.S. at 266-67. If the totality of the evidence

suggests that discriminatory intent underpins the race-neutral practice, the burden shifts to the

defendant to justify that practice. See Mt. Healthy City School Bd. of Education v. Doyle, 429 U.S.
55

274 (1977).

In its recently adopted General Recommendation XIV, the Committee declared that "in

seeking to determine whether an action has an effect contrary to the Convention, it will look to see

whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour,

descent, or ethnic origin." The Committee's use of the term "unjustifiable disparate impact" indicates

its view that the Convention reaches only those race-neutral practices that both create statistically

significant racial disparities and are unnecessary, i.e., unjustifiable. This reading of Article 2(1)(c)

tracks the standards for litigating disparate impact claims under Title VII, the Title VI implementing

regulations, and the Fair Housing Act. It is also consistent with equal protection and Sections 1981

and 1982 standards, to the extent that statistical proof of racial disparity – particularly when

combined with other circumstantial evidence – is probative of the discriminatory intent necessary

to make out a claim under those provisions. In the view of the United States, Article 2(1)(c) does

not impose obligations contrary to existing U.S. law.

(d) Article 2(1)(d) requires each State Party to “prohibit and bring to an end, by all

appropriate means, including legislation as required by the circumstances, racial discrimination by

any persons, group or organization." As indicated above, governmental policy at all levels reflects

this undertaking, and there are many different mechanisms, including litigation and legislation,

through which this important goal is being achieved by the United States.

As discussed in the context of the United States’ reservations, understandings and

declarations above, there are important constitutional limits on the permissible reach of

governmental regulation in the United States. For the reasons articulated in that discussion above,

the United States conditioned its ratification on a formal reservation stating that, to the extent the

Convention calls for a broader regulation of private conduct than permissible under U.S. law, 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.

(e) Under Article 2(1)(e), each State Party undertakes “to encourage, when appropriate,

integrationist multi-racial organizations and movements and other means of eliminating barriers

between races, and to discourage anything which tends to strengthen racial division.”

As part of his Initiative on Race, President Clinton has taken important steps to encourage

various sectors of United States society to celebrate diversity and work toward the goal of building

One America by promoting racial reconciliation and encouraging racial equal opportunity for all.

For example, on July 20, 1999, President Clinton issued a call to action to the legal

community to enlist their support in the fight for equal justice. Leading organizations in the United

States, including the American Bar Association, the American Corporate Counsel Association, the

Association of American Law Schools and the Lawyers Committee for Civil Rights, responded by

forming the “Lawyers for One America.” Lawyers for One America is a unique collaboration with

a mission to promote racial justice through increased pro bono legal service and diversity initiatives
56

within the legal community.

On March 9, 2000, President Clinton met with a broad group of American religious leaders

to highlight new commitments and programs they have pledged to undertake within the faith

community to ensure that the nation’s religious organizations are doing their part to expand diversity,

end racism and promote racial reconciliation. At the meeting, the National Conference for

Community and Justice (NCCJ) pledged to hold a national forum of faith leaders to share

information on their efforts and to seek commitments from other faith leaders to address race issues.

On April 6, 2000, President Clinton met with the leaders of the nation’s largest corporations

to challenge them to promote diversity and make commitments to expand economic opportunities

to racial minorities and close the opportunity gap that exists in the United States. At the meeting,

several corporate leaders pledged to convene dialogues on racial issues, workplace diversity and

employment equity during the next year. In addition, twenty-five leading companies pledged to

spend $250 million, $1 million per year for the next ten years, to expand diversity in the high

technology workforce.

Also inspired by President Clinton’s leadership on race relations, numerous cities in the

United States, like Indianapolis, Indiana and Grand Rapids, Michigan, have held or are planning to

hold day-long “race summits” that bring together people of diverse backgrounds to hold dialogues

on racial reconciliation.

The Department of Justice promotes the goals of Article 2(1)(e) through active involvement

in communities beset by either actual or potential destructive racial conflict. The Department’s

Community Relations Service sends experienced mediators to assist local communities in resolving

and preventing racial and ethic conflict, violence or civil disorder. For over thirty years, the

Department has played an enormously positive role in conflict prevention at the local level.

The Equal Employment Opportunity Commission (EEOC) seeks to eliminate racial

discrimination through education and prevention, and by publishing policy guidance statements,

compliance manuals and other educational materials. The EEOC also regularly sponsors nationwide

technical assistance program seminars, and makes presentations to employee and employer interest

groups. Within the past two years, the EEOC has developed a comprehensive website

<http://www.eeoc.gov> and launched a mediation program in each of its district offices, with the

goal of resolving charges of discrimination while preserving working relationships.

Special Measures. Article 2(2) provides that, when circumstances so warrant, States Parties

shall take "special and concrete measures" for the "adequate development and protection of certain

racial groups or persons belonging to them for the purpose of guaranteeing to them the full and equal

enjoyment of human rights and fundamental freedoms." Article 1(4) specifically excludes from the

definition of "racial discrimination" "[s]pecial measures taken for the sole purpose of securing

adequate advancement of certain racial or ethnic groups or individuals requiring such protection" in

order to provide equal enjoyment of human rights and fundamental freedoms. Such measures may

not, however, lead to the maintenance of "unequal or separate rights for different racial groups" or

"be continued after the objectives for which they were taken have been achieved." 
57

Together, Article 1(4) and Article 2(2) permit, but do not require, States Parties to adopt

race-based affirmative action programs without violating the Convention. Deciding when such

measures are in fact warranted is left to the discretion of each State Party.

At the federal level, the United States has been pursuing such “special measures” for many

years. For much of this century, racial and ethnic minorities and women have confronted a variety

of legal and social barriers to equal opportunity in the United States. Segregated, inferior schooling

combined with historic economic disadvantage left many effectively barred from participating in the

benefits of a growing national economy. Even after the legal barriers to equal treatment were

removed, the residual economic and social effects remained.

 In 1961, President John F. Kennedy issued an Executive Order (No. 10925) which used the

term “affirmative action” to refer to measures designed to achieve non-discrimination in

employment. Four years later, President Lyndon Johnson signed Executive Order 11246, requiring

federal contractors to take affirmative action to ensure equality of employment opportunity without

regard to race, religion and national origin. In 1967, the Executive Order was amended to add gender

as a prohibited basis of discrimination. The most far-reaching expansion of the affirmative action

approach at the federal level took place in 1969 in connection with the so-called “Philadelphia

Order” concerning construction trades in Philadelphia, PA.

The concept of using affirmative action to ensure equality of opportunity was initially

incorporated into federal statutory law through Title VII of the Civil Rights Act of 1964, which

aimed at ending discrimination by large private employers whether or not they had government

contracts.

A substantial number of existing federal ameliorative measures could be considered "special

and concrete measures" for the purposes of Article 2(2). These include the array of efforts designed

to promote fair employment, statutory programs requiring affirmative action in federal contracting,

including sheltered corporations, race-conscious educational scholarships, and direct support for

historically Black colleges and universities, Hispanic-serving institutions and Tribal colleges. Some

are hortatory, such as those based in statutes encouraging recipients of federal funds to use minorityowned and women-owned banks. Others are mandatory; for instance, the Community Reinvestment

Act requires federally chartered financial institutions to conduct and record efforts to reach out to

under-served communities, including, but not limited to, minority communities. Still others focus

on targeted outreach and training efforts; for instance, the U.S. Department of State maintains the

Foreign Affairs Fellowship Program, an initiative designed to increase minority participation in the

Foreign Service.

The Small Business Act requires each federal agency to set goals for contracting with “small

and disadvantaged businesses.” Under its so-called “Section 1207" authority, the Defense

Department is permitted to provide a ten percent bid price preference and to employ reducedcompetition systems when necessary to meet its “small and disadvantaged businesses” contracting

goals. The Omnibus Diplomatic Security and Anti-Terrorism Act requires that a minimum of ten

percent of funds appropriated for diplomatic security projects be allocated to minority business
58

enterprises. Certain small education grant programs (e.g., those under the Patricia Roberts Harris

Fellowship, 20 U.S.C. sec. 1134d-g, and the Women and Minorities in Graduate Education Program,

20 U.S.C. sec. 1134a) target minorities in graduate education. The Department of Agriculture gives

preferences to “socially disadvantaged” persons in the sale of farm properties and sets aside loan

funds for farmers in this group. The Department of the Treasury administers a “minority-owned

bank deposit” program in which designated banks receive special consideration to act as depositary

institutions holding cash for federal agencies, so long as no increased cost or risk results to the

government. The Department of Transportation gives preferences to small businesses owned and

controlled by socially and economically disadvantaged individuals in Department of Transportationassisted contracts.

The Clinton Administration has placed substantial emphasis on increasing educational

opportunities for minorities in the United States. For instance, the Hispanic Education Action Plan

is designed to provide targeted assistance to raise the educational achievement of Hispanic students

and to close the achievement gap. The Plan incorporates a number of other programs, such as the

State Agency Migrant Program and “GEAR UP.”

 Enacted in 1998 and administered by the Department of Education, GEAR UP funds

partnerships of high-poverty middle schools, colleges and universities, community organizations,

and businesses. The partnerships provide tutoring, mentoring, information on college preparation

and financial aid, an emphasis on core academic preparation, and, in some cases, scholarships. In

its first year, GEAR UP is serving nearly 450,000 students nationwide. Over 1,000 organizations

are GEAR UP partners, including colleges and universities, libraries, arts organizations, local

chambers of commerce, the YMCA, Boys and Girls Clubs, Wal-Mart, Unisys, and the New York

Times Education Program. In the upcoming year, GEAR UP is expected to serve over 750,000

students.

The U.S. Small Business Administration (SBA) administers several programs that could be

considered “special measures’ under article 2(2):

The 8(a) Business Development Program and the Small Disadvantaged Business

Certification and Eligibility Program (SDB Certification Program) assist small businesses owned and

controlled by one or more individuals determined by SBA to be socially and economically

disadvantaged. Socially disadvantaged individuals are those who have suffered chronic and

substantial discrimination during their education, employment or business operation as a result of

their membership in a particular group of people, rather than as a result of their individual

characteristics. While people in certain minority ethnic groups are presumed to be socially

disadvantaged, others who individually prove their social disadvantage also meet this criterion. The

reasons cited for discrimination against individuals not in presumed groups include, in part, gender,

age and disabilities. A finding of individual social disadvantage must also be related to unequal

business opportunities as a result of discrimination suffered.

Another criterion the SBA reviews is the economic net worth of the disadvantaged owners.

Net worth, after exclusion of an individual’s equity in his or her primary residence and the applicant

business, may not exceed $250,000 and $750,000, respectively, for the 8(a) Business Development
59

Program and the Small Disadvantaged Business (SDB) Certification Program.

The 8(a) Program offers a broad scope of assistance to the socially and economically

disadvantaged firms, including both business development assistance and eligibility for set-aside

federal contracts. The 8(a) Program, which has been in existence since 1969, has become an

essential instrument in helping socially and economically disadvantaged entrepreneurs gain access

to the economic mainstream of American society. SBA has helped thousands of aspiring

entrepreneurs over the years gain a foothold in government contracting. Participation is divided into

two phases over nine years: a four-year developmental stage and a five-year transition stage. In fiscal

year 1998, more than 6,100 firms participated in the 8(a) Program and were awarded $6.4 billion in

Federal contracts.

While the 8(a) and the SDB Certification Programs are, perhaps, SBA’s most recognized

programs, additional agency initiatives have been developed making business opportunities and

economic independence a reality to minorities heretofore denied access to the mainstream economy.

 In 1997, the SBA began its Welfare to Work Initiative to link small business owners looking for jobready workers with organizations that train welfare recipients and provide entrepreneurial training

to those who wish to start their own businesses. The goal was 200,000 pledges to hire job-ready

welfare recipients and/or provide entrepreneurial training. The Initiative has been very successful,

with the latest number of pledges and training reaching more than 215,000. Most of the recipients

were either socially or economically disadvantaged or both, with minorities overwhelmingly

represented.

Another SBA Initiative reaches out to the Native American community to help combat a

history of being discriminated against as a result of maintaining ties to a traditional lifestyle. One

of the primary responsibilities of SBA’s Office of Native Affairs, in partnership with SBA’s Office

of Business Initiatives, is to support and manage seventeen Tribal Business Information Centers

(TBICs). TBICs are partnerships between SBA and Native American Tribes or Tribal Colleges and

are located in seven states (Arizona, California, Montana, Minnesota, North Carolina, North Dakota

and South Dakota). They offer access to up-to-date technology and resources libraries as well as

practical, culturally appropriate guidance at accessible reservation locations. In 1999, the TBICs

provided entrepreneurial development assistance to 3,951 clients, provided 8,433 hours of

counseling, held 291 workshops, assisted in the completion of 196 business plans and 136 loan

applications, and were instrumental in the start-up of 212 new businesses. 

Individuals experiencing racial discrimination or social and economic discrimination are

often located in distressed areas. SBA’s One Stop Capital Shops target these areas of high

unemployment and pervasive poverty whose inhabitants are usually members of minority groups.

 SBA’s One Stop Capital Shops provide a broad range of services to these highly underutilized

business zones (HUB Zones) and Empowerment Zones including credit counseling and business

development assistance. In 1999, One Stop Capital Shops served over 53,000 clients, including

18,000 Hispanic and 12,000 Black clients. Government assistance through the use of incentives to

revitalize these “New Markets” areas is essential to break down continuing decay and offer hope for

economic growth and prosperity for residents of these communities.
60

The elimination of racism and discrimination takes more than outreach to those experiencing

this form of prejudice. There must also be outreach to the established institutions to assist in

bringing about change. The SBA Office of Capital Access has been working with lenders

participating in the 7(j) Small Business Loan Guaranty Program and the Microloan Program. By

targeting non-bank lenders who have a more accommodating posture towards the small business

market, particularly lenders who are located in or near economically distressed areas, SBA expects

to facilitate an increase in the number of minority, low-income, and women small business

borrowers. In addition, this effort will promote further economic revitalization and development in

low and moderate-income communities and rural area across the United States.

Illustrative proof is the Microloan program, where nonprofit organizations have been making

SBA-guaranteed micro-loans from under $100 to $25,000 to women, low income individuals,

minority entrepreneurs and other small businesses that need small amounts of financial assistance.

Nonprofit organizations have also served as intermediaries to assist women borrowers in developing

viable loan application packages and securing loans.

In general, the proper goal of affirmative action programs – such as those described above

– is to promote equal opportunity by ensuring every person a fair chance to achieve success.

Affirmative action measures recognize that existing patterns of discrimination, disadvantage and

exclusion that are the remains of a race-conscious system of exclusion may require race-conscious

measures to achieve real equality of opportunity. As a matter of law and policy, they may not create

any form of “quotas” or “numerical straightjackets,” nor may affirmative action policies give

preference to unqualified individuals, place undue burdens on persons not beneficiaries of the

affirmative action programs or continue to exist or operate after its purposes have been achieved.

The exact line between permissible and impermissible affirmative action measures has been

one of the most difficult issues in U.S. law, and it has not been static. See, e.g., Adarand

Constructors, Inc. v. Peña, 515 U.S. 200 (1995); Metro Broadcasting, Inc. v. FCC, 497 U.S. 647

(1990); City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989); Regents of University of

California v. Bakke, 438 U.S. 265 (1978). In Croson, the Supreme Court held that state affirmative

action plans challenged under the Constitution would be held to strict judicial scrutiny, i.e., courts

would evaluate the program to determine whether there was a compelling governmental interest in

the program’s use of race and whether that use was narrowly tailored to meet this interest. Six years

later, in Adarand, the Court held that that same standard of “strict scrutiny” would apply to federal

affirmative action plans. This is a more demanding test than had previously been applied to federal

affirmative action programs, and it has prompted a searching analysis and re-evaluation of many

such programs.

Affirmative action in elementary and secondary school admissions as well as in college and

university admissions has been a subject of contention; especially where the use of race is in the nonremedial context. However, language in several Supreme Court cases supports a school district's

compelling interest in ensuring that children of different races attend school together. See, e.g.,

Brown v. Board of Education, 347 U.S. 483, 493 (1954); Washington v. Seattle School District No.

1, 458 U.S. 457, 472 (1982); Swann v. Board of Education, 402 U.S. 1, 16 (1971); North Carolina

Board of Education v. Swann, 402 U.S. 43, 45 (1971). In the higher education context, a majority
61

of the Court in Regents of the University of California v. Bakke, 438 U.S. 265, 320 (1978), reversed

a lower court decision and found that a university could employ race-conscious measures even

though it had not engaged in prior de jure segregation. Indeed, it is the government’s position that

the educational benefits that flow from a diverse student body can be achieved through the narrowly

tailored consideration of race in admissions. Some critics argue that such practices violate the

Fourteenth amendment’s guarantee of equal protection and have called for an end to the

consideration of race in university admissions. In 1995, the University of California’s Board of

Regents voted to prohibit universities within its state-wide system from considering race in

admissions. The California Civil Rights Initiative, known as Proposition 209, prohibits the State

from considering race or gender in State employment, public contracting or education program. Also

in Texas v. Hopwood, 78 F.3d 932 (5th Cir.), cert. denied, 518 U.S. 1033 (1996), the Fifth Circuit

Court of Appeals held that race could not be used as a factor in the admissions process for the

University of Texas Law School.

Dspite Proposition 209 and the Fifth Circuit’s decision in Hopwood, the United States

government has consistently argued that the Constitution and Title VII allows for the narrowly

tailored consideration of race in elementary and secondary school and university admissions, either

to support a state’s compelling interest in diversity or in remedying past discrimination. Ultimately,

the U.S. Supreme Court will resolve this issue.

Moreover, the responsibility of states and local school districts to provide appropriate

services to children with limited English proficiency is now well established in the law.

The landmark decision in Lau v. Nichols, 414 U.S. 563 (1974), which is based on Title VI

of the Civil Rights Act of 1964, requires that school officials take action to provide limited English

proficient students appropriate services to permit meaningful participation in the district’s

educational program. The Equal Educational Opportunities Act of 1974 also requires that states and

school districts take appropriate action to overcome language barriers that impede equal participation

in the instructional program. However, no particular educational methodology is mandated to come

into compliance with these laws. For example, transitional bilingual education is one model that is

employed by some school districts, other districts rely on English as a Second Language techniques.

This flexible approach, is supported by the United States: school districts should employ

methodology that is supported by educational research, implement fully their programs, and evaluate

them in practice. Recently, however, California has restricted to some extent the flexibility of school

districts to make determinations regarding the methodology they wish to employ. Proposition 227,

enacted in 1998, requires that limited English proficient students be placed in an English immersion

program, unless parents seek waivers and seek a transitional bilingual program. A referendum

initiative in Colorado also seeks to limit transitional bilingual education.

The Department of Justice recently intervened in a lawsuit in Denver, Colorado in which the

adequacy of the school district’s English language acquisition program was at issue. A settlement

was reached under which a flexible program was approved by the court that relies on both foreign

language instruction and English language development techniques.
62

With regard to Native Americans, in Morton v. Mancari, 417 U.S. 535 (1974), the U.S.

Supreme Court upheld a statutory Indian preference for hiring by the Bureau of Indian Affairs. The

Court relied upon the statute’s purpose in aiding Indian self-government and rejected the claim of

unconstitutional discrimination stating that “[t]he preference is not directed towards a racial group

consisting of Indians; instead, it applies only to members of federally recognized tribes . . . [and i]n

this sense, the preference is political rather than racial in nature.” This distinction between a

preference based on the political nature of Indian tribes, as opposed to race, has been and remains

a fundamental legal principle supporting the unique relationship between the federal government and

Indian tribes.

In recent years, there has been extensive public debate over the concept of so-called “reverse

discrimination,” focusing on whether affirmative action programs are unfair to persons who do not

benefit from those programs. There have been a number of legislative proposals and state referenda

designed to limit the use of affirmative action programs to remedy past discrimination and achieve

diversity in employment and education, as well as several judicial challenges. Examples include

Maryland Troopers Ass’n v. Evans, 993 F.3d 1072 (4th Cir. 1993) (holding that Maryland State

Police discriminated against non-Blacks by complying with the terms of a court-ordered consent

decree which was held to violate 14th Amendment and Title VII) and Hopwood v. Texas, 84 F.3d

720 (5th Cir. 1996), cert. denied, 518 U.S. 1033 (1996) (holding that University of Texas School

of Law could not use race as a factor in its admissions decisions when White applicants with higher

test scores than minority applicants were denied admission).

In 1995, following the Supreme Court’s decision in Adarand, the President ordered a

thorough Executive Branch review of the Federal government’s affirmative action programs to

ensure that these programs satisfied the Court’s newly articulated legal standard. While finding

“undeniable progress in many areas,” the report concluded, not surprisingly, that “widespread

discrimination and exclusion - and their ripple effects - continue to exist” and that the various

affirmative action programs should therefore be continued and improved. As a result, some

programs were discontinued, and the method of implementation of others was changed.

The federal government, in fact, made substantial changes in the way all agencies use

affirmative action in federal contracting. Those changes ensure that race-conscious action in federal

contracting is used only where there is demonstrable proof that the effects of racial discrimination

continue to hinder minority-owned businesses.

The United States is hopeful that the changes made to federal affirmative action programs

will demonstrate not only to federal courts, but also to state and local governments that choose to

use these programs, how they can be developed in a manner that satisfies Constitutional scrutiny.

Indeed, in reviewing the first challenge to changes to federal contracting provisions, a court held that

the program satisfied the Constitution. The United States continues to believe that affirmative action

plays an essential role in ensuring that economic and educational benefits are offered equally to all

people in the United States, and that those programs can be developed in a way that is fair to all.

 This debate will continue. It is the United States' view that its obligations under the

Convention do not preclude adoption and implementation of appropriately-formulated affirmative
63

action measures consistent with U.S. constitutional and statutory provisions.

ARTICLE 3

 Article 3 requires States Parties to condemn racial segregation and apartheid and to

undertake to prevent, prohibit and eradicate “all practices of this nature” in territories under their

jurisdiction.

State-sponsored segregation and de jure discrimination has been prohibited in the United

States since the enactment of the Thirteenth, Fourteenth, and Fifteenth Amendments a few years after

the end of the Civil War. However, the federal courts interpreted those provisions to permit statesponsored and private racial discrimination (so-called “separate but equal” treatment of the races)

through the first half of the Twentieth Century. This interpretation was authoritatively overruled by

the Supreme Court in 1954 in Brown v. Board of Education, which outlawed racial segregation in

public schools and set the foundation for the elimination of segregation in all forms of public life.

 As discussed above, a series of Civil Rights Acts following that decision has extended the reach of

this prohibition to many private relationships and activities. The United States emphatically

condemns racial segregation and apartheid and prohibits any such practice in all territories under its

jurisdiction.

Prior to the removal of the racist regimes in southern Africa, the United States condemned

the policies and practices of those regimes and imposed economic and related sanctions in

accordance with the decisions of the United Nations. Independent of the federal government’s

actions, many state and local governments as well as private institutions also acted to divest or

otherwise dissociate themselves economically and politically from governments and institutions

supporting or tolerating apartheid. Non-governmental groups supported economic boycotts and

lobbied and pressured government at all levels to exert political and economic influence to end the

racist policies in South Africa.

ARTICLE 4

As a nation, the American people reject all theories of the superiority of one race or group

of persons of one color or ethnic origin or theories which attempt to justify or promote racial hatred

and discrimination. It is government policy to condemn such theories, and none is espoused at any

level of government.

The Convention requires more however. States Parties must “undertake to adopt immediate

and positive measures designed to eradicate all incitement to, or acts of, such discrimination.” More

specifically, Article 4(a) obliges States Parties to penalize four categories of misconduct:

 (i) all dissemination of ideas based on racial superiority or hatred,

 (ii) incitement to racial hatred,

 (iii) all acts of violence or incitement to violence against any race or group of 

 persons of another color or ethnic origin, and

 (iv) the provision of any assistance to racist activities, including the financing 
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 thereof.

The Committee has stressed the importance with which it views these obligations, as

reflected, for example, in General Recommendation VII adopted in 1985 in which the Committee

stressed the mandatory character of Article 4, and General Recommendation XV of 1993 in which

the Committee stated its opinion that “the prohibition of the dissemination of all ideas based on

racial superiority or hatred is compatible with the right to freedom of opinion and expression.”

Article 4(b) requires States Parties to declare illegal and prohibit organizations which promote and

incite racial discrimination, to prohibit their propaganda activities, and to make participation in such

organizations and activities an offense punishable by law. Article 4(c) imposes an obligation to

forbid public authorities and institutions from promoting or inciting racial discrimination.

Constitutional Limitations. For the reasons described earlier, the ability of the United States

to give effect to these requirements is circumscribed by Constitutional protections of individual

freedom of speech, expression and association. Accordingly, the United States took a reservation

to this article, and to the corresponding provisions of Article 7, to make clear that it cannot accept

any obligation 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. 

Nonetheless, there remains a substantial area in which the United States can, and does, give

effect to this article.

Hate Crimes (Federal Law). U.S. law has long provided criminal penalties for certain

violations of civil rights, including in particular acts of violence motivated by racism. See, e.g., 18

U.S.C. sec. 245(b)(2); 18 U.S.C. sec. 247(c); 42 U.S.C. sec. 3631. Federal “hate crimes” law makes

"an offense punishable by law" acts of violence or incitement to such acts, including the provision

of assistance for such acts, including financing. In some instances, harsher penalties have been

available when ordinary crimes are committed with racist intent. The Clinton Administration

strongly supports legislation to expand the protections under federal hate crimes statutes.

In recent years, the federal government has undertaken a number of initiatives to combat hate

crimes and violence. Central to these efforts has been the undertaking to gather information. The

Hate Crimes Statistics Act of 1990, Pub. L. 101-275, 28 U.S.C. sec. 534, directs the Attorney

General to collect data from state and local law enforcement agencies about crimes that “manifest

evidence of prejudice based upon race, religion, sexual orientation, or ethnicity.” The Federal

Bureau of Investigation’s Uniform Crime Report Program is the central repository for hate crime

statistics. Subsequent efforts have been directed at youth who commit hate crimes, including the

development of a school-based curriculum to address prevention and treatment of hate crimes by

juveniles.

Despite these efforts, it is a disturbing element of life in the United States that hate crimes

are prevalent and wide-spread. In 1998, a total of 7,755 bias-motivated criminal incidents were

reported to the Federal Bureau of Investigation’s Uniform Crime Reporting Program by 10,730 law

enforcement agencies in 46 states and the District of Columbia. Of these incidents, racial bias

motivated 4,321; religious bias accounted for 1,390; sexual-orientation bias was the cause of 1,260;
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ethnicity/national origin bias represented 754; disability bias was associated with 25; and the

remaining 5 incidents were the result of multiple biases. Sixty-eight percent of the offenses reported

were crimes against persons. Indeed, thirteen persons were murdered in incidents motivated by hate.

The United States continually reevaluates its laws, policies and practices in light of statistics like

these in its efforts both to punish and to prevent bias-motivated crimes.

Hate Crimes (State and Local Action). Forty-seven jurisdictions in the United States have

enacted some form of legislation designed to combat hate crimes. A number of states, including

California, Florida and Ohio, have adopted laws prohibiting specific activities at specific places, for

example, vandalism and intentional disturbances at places of worship. Florida and the District of

Columbia have prohibited such acts as burning a cross or placing a swastika or other symbol on

another’s property with intent to intimidate. Thirty-nine states have enacted laws against biasmotivated violence and intimidation; for example, a New York statute prohibits bias-motivated

discrimination or harassment. Other states (e.g., Wisconsin) provide for enhanced penalties when

the motivation for an otherwise criminal act is bias. Nineteen states mandate the collection of hate

crime statistics.

Racial and Ethnic Conflict and Violence. The Community Relations Service (CRS), created

by the Civil Rights Act of 1964, is a specialized federal conciliation service available to State and

local officials to help resolve and prevent racial and ethnic conflict, violence and civil disorder. It

sends experienced mediators to assist local communities’ efforts to settle destructive conflicts and

disturbances relating to race, color or national origin. 

CRS lends its services when requested or when it believes peaceful community relations may

be threatened. It relies solely on impartial mediation practices and established conflict resolution

procedures to help local leaders resolve problems and restore community stability. CRS has no law

enforcement authority and does not impose solutions, investigate or prosecute cases, or assign blame

or fault. CRS mediators are required by law to conduct their activities in confidence and without

publicity; and are prohibited from disclosing confidential information. Working in partnership with

the Civil Rights Division, local United States Attorneys’ offices, and the Federal Bureau of

Investigation, CRS plays a critical role in easing tensions in the aftermath of hate crimes and

allegations of misconduct by law enforcement officers, especially where the race of the victim is

alleged to have played a role in the officers’ misconduct.

CRS race relations skills were called upon to restore stability and order in the civil unrest in

Los Angeles following the Rodney King case (where four White Los Angeles police officers were

caught on videotape beating Mr. King, a Black motorist), and countless other civil disturbances

across the country. In response to President Clinton’s call for a comprehensive response by federal

agencies to address church burnings, CRS staff worked directly with more than 180 rural, suburban

and urban governments in seventeen states to help eliminate racial distrust and polarization, promote

multiracial construction of new buildings, conduct race relations training for community leaders and

law enforcement officers, and provide technical assistance in ways to bring together law enforcement

agencies and minority neighborhoods.

Other areas of CRS involvement include the prevention and resolution of racial conflicts
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arising from the integration of public and private housing. CRS works with community leaders and

local law enforcement officials to coordinate responses to issues raised by integration activities. 

CRS also assists in disputes between tribal nations and outside communities and addresses federal,

state and local government concerns over tribal jurisdiction, housing, schools, environmental,

gaming, and tax issues.

Racism on the Internet. The Supreme Court has made it clear that communications on the

Internet receive the same constitutional protections under the First Amendment that communications

in other media enjoy. Reno v. ACLU, 521 U.S. 844 (1997). Thus, material that can be proscribed

or punished in print and voice media can be proscribed or punished if published on the Internet. In

the past several years, the United States has investigated and prosecuted allegations of raciallymotivated threats over the Internet. For example, in 1996, a California man sent death threats by email to numerous Asian-American students at the University of California at Irvine indicating his

hatred of Asians, accusing Asians of being responsible for all crime on campus, and threatening to

“hunt down” and “kill” the individuals if they did not leave the school. The sender of these

messages was federally prosecuted and convicted by a jury of using racially-motivated threats of

force to interfere with the victims’ rights to attend public college in violation of 18 U.S.C. section

245. Similarly, in February of 1999, another California defendant pleaded guilty to violating the

same statute by sending racially-threatening e-mails through the Internet to numerous Hispanic

individuals at various governmental and educational institutions across the country.

ARTICLE 5

Article 5 obliges States Parties to prohibit and eliminate racial discrimination in all its forms

and to guarantee the right of everyone to equality before the law, without distinction as to race, color,

or national or ethnic origin. The protections of the U.S. Constitution meet this fundamental

requirement. The policy and objectives of government at all levels are also consistent with its

provisions. 

Importantly, Article 5 goes even further, requiring States Parties to guarantee equality and

non-discrimination on this basis "notably in the enjoyment" of a list of specifically enumerated

rights. Some of these enumerated rights, which may be characterized as economic, social and

cultural rights, are not explicitly recognized as legally enforceable “rights” under U.S. law. However,

Article 5 does not affirmatively require States Parties to provide or to ensure observance of each of

the listed rights themselves, but rather to prohibit discrimination in the enjoyment of those rights to

the extent they are provided by domestic law. In this respect, U.S. law fully complies with the

requirements of the Convention. In many of the areas covered by this article, however, serious

problems exist.

Equality Before Tribunals. The right to equal treatment before tribunals and all other

organs administering justice, as guaranteed by Article 5(a), is provided by U.S. law through the

operation of the Equal Protection Clause of the U.S. Constitution, which is binding on all

governmental entities at all levels throughout the United States. This right has been reinforced by

a number of constitutional decisions. For example, race may not be a criterion in the selection of

jurors in criminal or civil cases. See Hernandez v. Texas, 347 U.S. 475 (1954); Batson v. Kentucky,
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476 U.S. 79 (1986). Nonetheless, the perception of unequal treatment in the criminal justice system

is widespread among Blacks and Hispanics, and in many respects that perception is supported by

data.

Some have raised concerns about the use of so-called “secret evidence” in legal proceedings

against immigrants. Particularly, critics of the 1996 Anti-Terrorism and Effective Death Penalty Act,

which has been interpreted to permit use of this evidence, cite the disproportionate effect on ArabAmericans and American Muslims. The United States has taken the position that the limited use of

such evidence, in the context of a system that includes procedural protections, does not violate due

process or equal protection guarantees.

Discrimination by Law Enforcement. The U.S. Constitution and federal statutes prohibit

racially discriminatory actions by law enforcement agencies. The Department of Justice has

authority under 42 U.S.C. section 14141 to investigate allegations that a law enforcement agency is

engaged in a pattern or practice of conduct by law enforcement officers, including racial

discrimination, that deprives persons of their federal constitutional or statutory rights. If the law

enforcement agency at issue receives funding from the federal government, which most agencies do,

the Department of Justice can also investigate such allegations under the Omnibus Crime Control

and Safe Streets Act, 42 U.S.C. 3789d, and Title VI of the Civil Rights Act of 1964, 42 U.S.C.

2000d. If the investigation supports the allegations of illegal racial discrimination, the Department

negotiates with the law enforcement agency in an effort to achieve an agreement that the agency will

eradicate the discriminatory policies and practices. If no agreement can be reached, the Department

of Justice has authority to bring a lawsuit in federal court under each of the statutes listed above. 

Relief in such a suit can include a judicially enforceable order that requires the agency to change its

practices or policies to come into compliance with constitutional protections.

Since 1994, the Civil Rights Division at the Department of Justice has conducted more than

fifteen investigations into allegations of a pattern or practice of law enforcement misconduct. Several

of these civil investigations have involved “racial profiling,” i.e., allegations of discriminatory

highway traffic stops and discriminatory stops of persons traveling in urban areas.

The Civil Rights Division investigation of discriminatory traffic enforcement by the New

Jersey state police led to a lawsuit resolved through a December 1999 consent decree that

emphasizes non-discrimination in policy and practices as well as improved data collection, training,

supervision, and monitoring of officers. The Department of Justice reached a similar agreement with

the Montgomery County, Maryland Police Department. The Civil Rights Division also has a handful

of ongoing investigations into alleged practices of discriminatory traffics stops and searches.

To help ensure that federal law enforcement officers act in accordance with policies against

racial profiling, in June 1999 President Clinton issued an Executive Memorandum to federal

agencies to gather data to determine whether racial profiling is occurring. Pursuant to the President’s

directive, the Departments of Justice, Treasury and Interior have started to collect data on the race,

ethnicity, and gender of individuals stopped or inspected by federal law enforcement officers. This

data will provide the federal government with the information necessary to combat this problem. In

the meantime, the Deputy Attorney General is leading a working group to examine any changes and
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reforms in federal law enforcement practice or policy that could be undertaken immediately.

In addition to the above, there are several ongoing lawsuits in which private litigants have

sued law enforcement agencies based on allegations of racially discriminatory police activities. See,

e.g., National Congress for Puerto Rican Rights v. City of New York (Oct. 20, 1999, S.D.N.Y.);

Farm Labor Organizing Committee v. Ohio State Highway Patrol, 184 F.R.D. 583 (N.D. Ohio 1998).

The Department of Justice currently provides training to state and local law enforcement

regarding the use of traffic stops in drug interdiction, emphasizing that enforcement must be carried

out in a nondiscriminatory manner. The Department of Justice is also in the process of expanding

the training it provides with regard to this issue.

Overrepresentation in the criminal justice system. The majority of all federal, state and local

prison and jail inmates in the United States today are members of minority racial or ethnic groups.

The incarceration rate for Blacks is 7.66 times that for Whites and approximately four times

their proportion in society at large. While Blacks make up approximately 12.5percent of the U.S.

population, in 1997 approximately 47percent of state prison inmates were non-Hispanic Blacks. 

While approximately 11.5 percent of the U.S. population is Hispanic, 16percent of the state prison

population is Hispanic. As of December 31, 1998, 57.8percent of the total Federal inmate population

was White (including White Hispanics), 38.9percent Black, 1.7percent Asian/Pacific Islander, and

1/6percent Native American. Additionally, 30.3percent of federal prisoners were identified as

Hispanic (who can be of any race, though the overwhelming majority of Hispanics in the U.S. are

classified as White for racial purposes). The reasons for these disparities are complex and disputed.

Disparities in Sentencing. In recent years, there has been increased focus on the issue of

racial disparities in sentencing at the state and federal levels. Some studies suggest that the national

“war on drugs” has further exacerbated existing disparities in sentencing within the federal and state

criminal justice systems. Within the federal system, concern has been raised, in particular, in relation

to (1) the use of mandatory minimum sentences generally; and (2) the disparity in mandatory

minimum sentences between “crack” and “powder” cocaine.

In 1984, after more than two decades of debate and study, Congress enacted a substantial

reform of federal sentencing, the Sentencing Reform Act. The central features of that legislation

included a comprehensive statement of federal sentencing laws; appellate review of sentences;

abolition of parole; and the creation of the U.S. Sentencing Commission to develop a detailed system

of guidelines that would structure and direct the previously unfettered sentencing discretion of

federal judges. Congress established the Sentencing Commission as an independent, permanent

agency in the judicial branch of government. The Commission’s mandate was to develop guidelines

for federal criminal offenses that would bring greater certainty, honesty, and uniformity to

sentencing, ensure just punishment, and promote crime control. One of the important goals of this

reform was to reduce unwarranted sentence disparity.

At the same time the Sentencing Commission was developing, promulgating, and amending

guidelines, Congress enacted a number of mandatory minimum penalty statutes, largely for drug and
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weapons offenses and for recidivist offenders. There has been much debate in the United States

about the fairness and efficacy of the mandatory minimum sentencing scheme. Some commentators

argue that the imposition of this “mandatory minimum” scheme unduly restricts the ability of federal

judges to impose sentences that are particular to the defendant’s case and promotes racial disparities

in sentencing and incarceration, while others support it as necessary to ensure appropriate levels of

punishment for serious offenses.

As noted above, in mandating minimum terms of imprisonment, one of Congress’s goals was

to eliminate unwarranted sentencing disparity for certain categories of defendants. To accomplish

this, Congress identified these categories and designated appropriate penalties below which

defendants were not to be sentenced. However, a recent report by the Sentencing Commission found

that approximately 40 percent of defendants determined to exhibit behavior warranting mandatory

minimum terms were sentenced below those indicated terms. Also, the Commission’s study

concluded that a greater proportion of Black defendants received sentences at or above the indicated

mandatory minimum (67 percent), followed by Hispanics (57.1percent) and Whites (54.0 percent).

The U.S. Justice Department has worked vigorously to ensure that neither racial nor ethnic

nor other improper discrimination occurs within the criminal justice system that might lead to racial

disparities in sentencing and corrections. With respect to the federal criminal justice system in

particular, the U.S. Deputy Attorney General has convened an internal Justice Department working

group to examine racial disparities in the federal system, including questionable disparities in

sentencing policies.

Mandatory minimum sentences have generated extensive litigation at the state and federal

level, especially in recent years as Congress and state legislatures have increased the severity of

mandatory penalties for drug and firearm offenses. Among the principal challenges to mandatory

minimum provisions are contentions that they offend the Eighth Amendment’s prohibition against

cruel and unusual punishment and the Due Process Clause of the Fifth and Fourteenth Amendments.

 Criminal defendants have also challenged mandatory minimum sentencing schemes on equal

protection, double jeopardy, and separation of powers grounds. Generally, these challenges have not

succeeded.

Among the mandatory minimum penalties enacted by Congress in the late 1980s were those

related to sentencing federal cocaine offenses. In establishing these mandatory minimum penalties,

Congress differentiated between two forms of cocaine -- powder and crack (the commonly consumed

form of cocaine base). Under current federal law, it takes one hundred times as much powder

cocaine as crack cocaine to trigger the same mandatory minimum penalty. Thus, a person convicted

of selling 500 grams of powder cocaine is subject to the same five-year mandatory minimum

sentence as a person selling 5 grams of crack cocaine. This so-called “100-to-1 ratio” (five

grams/500 grams) between crack and powder cocaine sentencing has been widely criticized -- in a

recent report by the Leadership Conference for Civil Rights, by both Republicans and Democrats in

Congress, and elsewhere -- as unfair and unjustified. Concern in this area is heightened in light of

the fact nearly 90percent of the offenders convicted in federal court for crack cocaine distribution

are African-American while the majority of crack cocaine users is White.
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In September 1994, the United States Sentencing Commission was directed to study and

report to Congress on the 100-to-1 cocaine sentencing ratio. In 1995, the Commission issued a

report criticizing the law and subsequently sent to Congress a recommendation to equalize the

penalties for crack and powder at the lower, powder cocaine sentencing levels. The recommendation

was accompanied by a proposed change in the federal sentencing guidelines that would have, for the

purposes of the sentencing guidelines, equalized the penalties for crack and powder cocaine offenses.

 Because of concern about the devastating and disproportionate impact that crack cocaine trafficking

was having on inner city communities, the Clinton Administration urged Congress to reject the

recommendation of the Sentencing Commission. Congress agreed and invalidated the proposed new

sentencing guideline. The legislation that rejected the proposed guideline also directed the

Sentencing Commission to develop a second recommendation that would reduce but not eliminate

the existing sentencing disparity.

In 1997, the Sentencing Commission issued a second report that again criticized current law

and that recommended reducing the disparity between crack and powder cocaine sentencing policy.

 After an extensive study of the Commission’s reports and recommendations, the Administration

took the position that the 100-to-1 ratio should be changed; that existing law inappropriately targets

lower-level crack offenders with significant mandatory minimum sentences and that such sentences

fall disproportionately on African-Americans. The Administration proposed revising federal cocaine

sentencing policy so that a conviction for distributing 25 grams (rather than five grams) of crack

cocaine or 250 grams (rather than 500 grams) of powder cocaine would trigger the five year

mandatory minimum prison sentence.

Others have suggested different solutions. Some have suggested equalizing penalties by

raising powder cocaine penalties to the current level for crack (i.e., 5 grams = 5 years) or by reducing

crack cocaine penalties as first suggested by the U.S. Sentencing Commission. However, to date,

only one proposal has been the subject of legislative action. A proposal by Senator Spencer

Abraham of Michigan to reduce the disparity between crack and powder cocaine sentencing by

increasing the penalties for powder offenses was approved by the Senate earlier this year. There has

been no legislative

Capital Punishment. The U.S. Supreme Court has held that the U.S. Constitution does not

prohibit capital punishment, so long as adequate substantive and procedural protections are in place.

 Gregg v. Georgia, 428 U.S. 153 (1976). Accordingly, each state may decide whether to authorize

the death penalty, so long as their statutes meet the constitutional standard set out in Gregg and

subsequent cases. At the end of 1998, thirty-eight of the fifty states and the federal government

provided for capital punishment. Capital punishment is currently not provided for in twelve states

(Alaska, Hawaii, Iowa, Maine, Massachusetts, North Dakota, Rhode Island, Vermont, West Virginia,

and Wisconsin) and the District of Columbia.

A sentence of capital punishment can be sought and imposed only for the most egregious

crimes. In the first instance, these crimes, and the applicable procedures, must be specified by the

legislature in an appropriate statute. That statute is subject to judicial review for compliance with

the constitutional guarantees of due process, equal protection, and protection against cruel and

unusual punishment. In 1972, the Supreme Court set aside sentences of death imposed under Texas
71

and Georgia statutes holding that the imposition of death in the cases at issue constituted cruel and

unusual punishment in violation of the Eighth and Fourteenth Amendments to the U.S. Constitution.

Furman v. Georgia, 408 U.S. 238 (1972). Subsequently, the states and the federal government

revised their capital punishment statutes to meet the substantive and procedural criteria required by

the Court’s analysis. In 1976, in upholding such a revised statute in Gregg, the U.S. Supreme Court

effectively ended a four year moratorium on the imposition of death sentences. Nonetheless, judicial

challenges to sentences and statutes remain commonplace.

Generally, the death penalty cannot be imposed unless a serious crime resulted in the death

of the victim. Coker v. Georgia, 433 U.S. 584 (1977); Enmund v. Florida, 458 U.S. 782 (1982);

Eberheart v. Georgia, 433 U.S. 917 (1977). Moreover, the fact that the crime resulted in death is not

sufficient to trigger the sanction of capital punishment; the crime must also have attendant

aggravating circumstances. These restrictions upon the imposition of the death penalty arise out of

the constitutional requirement that the punishment not be disproportionate to the personal culpability

of the wrongdoer, Tison v. Arizona, 481 U.S. 137 (1987), and the severity of the offense, Coker v.

Georgia, 433 U.S. 584 (1977).

The public debate over capital punishment in the United States includes claims about the

incidence of racial and ethnic bias and discrimination. Blacks are disproportionately more likely to

be sentenced to death and executed than other racial or ethnic groups. From 1977 (the year after the

Supreme Court upheld the constitutionality of revised State capital punishment laws) to 1998, a total

of 5,709 persons entered prison under a sentence of death. During this period, the U.S. general

population was approximately 10-12percent Black; however, among those entering prison under a

death sentence during this period, 2,347 (41 percent) were Black. Of the 500 persons executed

during these 22 years, 178 (36 percent) were Black.

As of the end of 1998, 3,452 prisoners were under sentence of death in the States or Federal

system. California held the largest number on death row (512), followed by Texas (451), Florida

(372), and Pennsylvania (224). Nineteen prisoners were under a federal sentence of death. During

1998, 30 states and the Federal prison system received 285 prisoners under sentence of death. Of

the 285 new admissions, 132 (46 percent) were Black and 38 (13 percent) were Hispanic. During

1998, 66 men and 2 women were executed. Of those executed, 40 (60 percent) were White; 18 (27

percent) were Black; 8 (12 percent) were Hispanic; 1 was American Indian and 1 was Asian.

In McClesky v. Kemp, 481 U.S. 279 (1987), the U.S. Supreme Court considered the

implications of a study indicating that the death penalty in Georgia was imposed more often on black

defendants and killers of White victims than on White defendants and killers of Black victims. The

Supreme Court held that this study failed to establish that any of decision makers in the defendant’s

case acted with discriminatory purpose in violation of the Equal Protection Clause. The Court

further held that, at most, the study indicated a discrepancy that appeared to correlate with race, not

a constitutionally significant risk of racial bias affecting Georgia's capital-sentencing process;

therefore, it did not establish a violation of the Eighth Amendment’s prohibition against cruel and

unusual punishment.

While capital punishment continues to be supported by a majority of the citizens in a majority
72

of states in the United States, a significant number do not support it. Some opponents believe capital

punishment is not only unfairly applied but also ineffective as a deterrent to criminal activity. 

Throughout the country, many remain concerned about racial and geographic disparities in the

application of the death sentence.. Other stated causes for concern include inadequate representation

of counsel, lack of a fair hearing at which exculpatory evidence can be submitted, and the

unavailability of exonerating evidence until long after the trial. Despite these concerns, the U.S.

government remains confident that the death penalty is imposed only in the most egregious cases and

only in the context of the heightened procedural safeguards required by our state and federal

constitutions and statues.

Security of Person. Under Article 5(b) the State Party must provide equal protection against

violence and bodily harm, whether inflicted by governmental officials or by individuals, groups or

institutions.

As discussed above, U.S. law prohibits discrimination on the basis of race, color, ethnicity

or national origin. Notably, the Fifth and Fourteenth Amendments to the U.S. Constitution guarantee

equal protection of the laws to all persons. This guarantee extends to equal protection against

violence and bodily harm. Moreover, several statutes have been enacted at both the state and federal

level which create criminal and civil liability for violence or threats of violence on the basis of race,

color, ethnicity or national origin. See, e.g., Violent Crime Control and Law Enforcement Act of

1994; Civil Rights Act of 1968.

U.S. law has long provided criminal penalties for certain violations of civil rights, including

particular acts of violence motivated by racism. See, e.g., 18 U.S.C. sec. 245(b)(2); 18 U.S.C. sec.

247(c); 42 U.S.C. sec. 3631. Federal “hate crimes” law prohibits any person from using force or

willful threats to injure, intimidate, or interfere with, or attempt to injure, intimidate or interfere with

any person because of his or her race, color, religion, or national origin and because he or she is

engaging in certain federally protected rights, including rights related to education, employment and

the use of public facilities and establishments which serve the public. In some instances, harsher

penalties have been available when ordinary crimes are committed with racist intent. In addition,

many states also protect equal rights to security of person through state hate crime laws.

Prisons. Title 28, C.F.R. Part 551.90 provides that federal inmates “may not be discriminated

against on the basis of race, religion, nationality, sex, disability, or political belief. Each Warden

shall ensure that administrative decisions and work, housing, and program assignments are nondiscriminatory.” In addition, the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C.

sec. 1997 et seq., gives the Department of Justice jurisdiction to investigate institutional conditions

and to sue state and local governments for a pattern or practice of egregious or flagrant unlawful

conditions. Since CRIPA was enacted, the Civil Rights Division has investigated more than three

hundred facilities in thirty-nine states, the District of Columbia, the Commonwealth of Puerto Rico,

and the Territories of Guam and the U.S. Virgin Islands. As a result of the Department of Justice’s

CRIPA efforts, tens of thousands of institutionalized persons who were living in dire, often lifethreatening conditions now receive adequate care and services. Additionally, the Department of

Justice has obtained orders prohibiting the segregation of prisoners by race.
73

Federal Bureau of Prisons staff receive diversity management training during the Introduction

to Correctional Techniques at the Federal Law Enforcement Training Center which is required for

all new primary law enforcement employees. Diversity management principles are again emphasized

during annual refresher training, which is required for all employees. Finally, a large number of

national Bureau training seminars also have a session on diversity management.

The Bureau of Prisons maintains two separate databases of discrimination complaints filed

by inmates. Inmates may seek formal review of an issue which relates to virtually any aspect of their

confinement, if informal procedures have not resolved the matter. See 28 C.F.R. Part 542,

Administrative Remedy. This program applies to all inmates confined in institutions operated by

the Bureau of Prisons, inmates designated to contract Community Corrections Centers under Bureau

of Prisons responsibility, and former inmates for issues that arose during their confinement.

Inmates must first attempt informal resolution of grievances before filing a formal request

for administrative remedy. The initial request is filed at the institution level. If the inmate is not

satisfied with the Warden’s response, he or she may appeal to the Regional Office. If the inmate is

not satisfied with the Regional Director’s response, he or she may file a Central Office

Administrative Remedy Appeal. After receiving the response from the Administrator, National

Inmate Appeals, the inmate has exhausted the Bureau’s administrative remedy program.

The records regarding allegations of discrimination in the administrative remedy program,

however, do not distinguish between the various forms of discrimination. Thus, the general category

of “discrimination” includes allegations of racial or ethnic discrimination, as well as discrimination

based on gender, disability, religious belief, or national origin. Accordingly, it is not possible to

provide statistics specifically on the number of allegations regarding racial or ethnic discrimination.

The second database that the Bureau of Prisons uses to monitor complaints is through the

Office of Internal Affairs. All allegations of staff misconduct are required to be referred to the

Bureau of Prisons Office of Internal Affairs which has the responsibility within the Bureau to ensure

that allegations and appearances of staff misconduct and impropriety, including criminal matters, are

reported to the U.S. Department of Justice Office of the Inspector General. The Inspector General

has the authority to investigate serious incidents itself or defer the case to the Bureau of Prisons for

an administrative investigation. The Inspector General may also refer criminal matters, e.g., physical

or sexual abuse of an inmate, to the Department of Justice Civil Rights Division for prosecutorial

consideration under applicable statutes.

Political Rights. As required by Article 5(c), U.S. law guarantees the right to participate

equally in elections, to vote and 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, and to have equal access to

public service.

These guarantees arose in the mid-1960s in response to the continued discrimination against

Blacks in the electoral process despite the ratification in 1870 of the Fifteenth Amendment, which

was intended to protect the right to vote from denial or abridgement on account of race, color, or

previous condition of servitude. With the enactment of the Voting Rights Act of 1965, the political
74

process started to become open to Blacks. As interpreted, this statute also reaches discrimination

on the basis of ethnic or national origin. It also requires that bilingual voting information be made

available where more than 5percent of the population or 10,000 individuals within a jurisdiction

speak a language other than English. The statute was amended in 1982 to prohibit practices that

result in the denial or abridgement of the right to vote.

The Department of Justice is responsible, along with private plaintiffs, for the enforcement

of the Voting Rights Act. The Department brings suits in federal court under Section 2 of the Act

to challenge voting practices or procedures that have the purpose or effect of denying equal

opportunity to minority voters to elect their candidates of choice.

By operation of Section 5 of the Voting Rights Act, any change with respect to voting that

occurs in a specially covered jurisdiction (applies to nine states in their entirety and to parts of seven

additional states) must obtain federal pre-approval before it can be put into affect. The federal

review is designed to ensure that the voting change in question will not have the purpose or effect

of making minority voters worse off. The Civil Rights Division reviews approximately 20,000

voting changes per year. In recent years, the Attorney General has blocked implementation of a wide

variety of discriminatory changes, including annexations and at-large election systems that dilute

minority voting strength, discriminatory local and statewide redistricting plans, discriminatory

redistricting guidelines, and discriminatory voter assistance procedures.

In recent years, the Supreme Court has recognized a new cause of action that permits White

voters to challenge redistricting plans enacted by state or local governments as unconstitutional. This

cause of action requires that if a state or local government uses race as the “predominant factor” in

redistricting, that use will be subject to strict judicial scrutiny. Under that standard, the action will

only be upheld if there is compelling governmental interest in the use of race and if the use is

narrowly tailored to meet that interest. 

As of August 1, 2000, of the total 1,218 judges on the federal bench, 106 are Black (8.7

percent), 51 are Hispanic (4.2 percent), and 3 are Native American (0. Percent). Of the nine justices

on the U.S. Supreme Court, one is of a racial minority (Black). Of the 159 judges on the U.S. Courts

of Appeal, 10 are Black (6.3 percent), 10 are Hispanic (6.3 percent), 2 are Native American (0.6

percent), and 1 is Asian (0.6 percent).

According to the Directory of Minority of Judges of the United States published by the

American Bar Association, of the approximately 60,000 state court judges, 3,610 are of racial

minorities (approximately 6 percent). Of this number, 1,680 are Black, 1,310 are Hispanic, 254 are

Asian, and 42 are Native American.

With respect to the 535 members of the 106th Congress, 37 are Black (6.9 percent), 18 are

Hispanic (3.4 percent), 3 are Asian (0.6 percent), and one is Native American (0.2 percent). Of the

50 state governors, only two are of racial minorities – both are Asian. Finally, of the mayors of the

25 largest cities in the United States, 8 are Black (32 percent) and 2 are Hispanic (8 percent).

In 1992 the Census Bureau collected data regarding minority participation in local elected

office through the 1992 Census of Governments. The Census collected data regarding general
75

purpose government officials (e.g., municipal mayors and city councilors) and special purpose

government officials (e.g., school board members). Among the 419,761 officials for whom race or

Hispanic origin was reported, 405, 905 were White (96.7 percent); 11,542 were Black (2.7 percent);

1,800 were American Indian, Eskimo and Aleut (0.4 percent); and 514 were Asian or Pacific Islander

(0.1 percent). There were 5,859 local elected officials who identified themselves as Hispanic (1.4

percent). This data reflected a notable increase in minority representation since the last time the

Census of Governments was conducted in 1987.

Other Civil Rights. Article 5(d) obliges States Parties to ensure equality of enjoyment of a

number of human rights and fundamental freedoms, including freedom of movement and residence,

the right to leave one’s country and return, the right to a nationality, the right to marriage and choice

of spouse, the right to own property alone as well as in association with others, the right to inherit,

the right to freedom of thought, conscience and religion, the right to freedom of opinion and

expression, the right to freedom of peaceful assembly and association.

These rights are guaranteed to all persons in the United States in accordance with various

Constitutional and statutory provisions. The right to freedom of movement and residence in the

United States is guaranteed to all citizens by the “right to travel.” Crandall v. Nevada, 73 U.S. 35

(1868). The right of a citizen to enter and leave the United States is recognized by law. The right

to marriage and choice of a spouse is one of the “fundamental rights” protected by the privacy

provisions of the U.S. Constitution. Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v. Virginia,

388 U.S. 1 (1967). The right to non-discrimination in the ownership of property is protected by the

Fifth and Fourteenth Amendments to the Constitution. See 42 U.S.C. sec. 1982; Shelly v. Kramer,

334 U.S. 1 (1948) (finding state action in the state court’s enforcement of racially restrictive

covenants unconstitutional). Freedom of thought, conscience, religion, opinion, expression and

assembly are protected by the First Amendment. One of the purposes of the Fourteenth Amendment

to the U.S. Constitution was to protect these ordinary rights of citizens against encroachment by state

and local governments. These “privileges and immunities” of national citizenship cannot be

abridged by state or local legislation.

Specific intent to interfere with these rights may be criminally prosecutable under a number

of statutes. See, e.g., 18 U.S.C. sec. 241 (for conspiracy to deprive persons of such rights), 242 (for

deprivation of rights under “color of law”), 245 (for violence or threatened interference with

specified federal rights motivated in part by racial animus), 247 (for violent or threatening

interference with right to exercise one’s religious beliefs), and 42 U.S.C. sec. 3631 (for violent or

threatening interference with rights to own or occupy property and to associate therein with persons

of another race).

Economic, Social and Cultural Rights. Article 5(e)(i) guarantees equality and nondiscrimination with regard to the right to work, to free choice of employment, to just and favorable

conditions of work, to protection against unemployment, to equal pay for equal work, and to just and

favorable remuneration. As a matter of law and regulation, this obligation is met; in practice,

however, significant disparities continue. The sources or causes of socio-economic differences are

complex and depend on a combination of societal conditions, such as the state of the national and

local economies, continued racial and ethnic discrimination in education and employment, and
76

individual characteristics, such as educational background, occupational experiences, and family

background.

Although some narrowing of economic status among various racial and ethnic groups has

occurred in recent years, substantial gaps persist. For example, in 1998 the median incomes of

White non-Hispanic households and of Asian and Pacific Islander households ($42,400 and $46,600,

respectively) were much higher than those of Black and Hispanic households ($25,400 and $28,300,

respectively). By one 1993 measure, the median wealth (net worth) of White households was nearly

10 times that of Black and Hispanic households. In 1998, the poverty rate among Blacks (26.1

percent) was more than triple the poverty rate of White non-Hispanics (8.2 percent). The poverty

rate among Hispanics (25.6 percent) was not statistically different from that of Blacks. According

to data from the 1990 decennial census, the poverty rate for American Indians, Eskimos and Aleuts

was 30.9 percent in 1989. In the same year, the poverty rate was 9.8 percent for Whites, 29.5

percent for Blacks, and 14.1 percent for Asians and Pacific Islanders.

The pervasiveness of child poverty is of particular concern. Since 1993, poverty rates for

children under 18 years within the United States have fallen, but differences among racial and ethnic

groups remain high. Between 1993 and 1998, the poverty rate for White children fell 2.7 percentage

points to 15.1 percent. The rate for Black children fell even more, from 46.1 percent to 36.7 percent,

but was still twice as high as the rate for White children. The rate for Hispanic children fell from

40.9 percent in 1993 to 34.4 percent in 1998, but was not statistically different from the rate for

Black children in 1998. By comparison, the rate for Asian and Pacific Islander children in 1998 was

18.0 percent, not statistically different from the rate for White children, and the same as in 1993

(18.2 percent).

In 1989, the poverty rate for American Indian, Eskimo and Aleut children was 38.3 percent.6

In the same year, the poverty rate was 12.1 percent for White children, 39.5 percent for Black

children, and 16.7 percent for Asian and Pacific Islander children.

Although there has been an unmistakable increase in inequality both overall and among

racial and economic groups in the United States since the mid-1970's, some trends indicate

movement toward greater economic equality. As a result of fiscal discipline, investments in the

American people, and increased trade, the United States is in the midst of the longest economic

expansion in its history. The unemployment rate for Blacks has fallen from an average of 14.2

percent in 1992 to an average of 7.7 percent in 2000 – the lowest rate on record. Since 1993, the

poverty rate for Blacks has dropped from 33.1 percent to 26.1 percent in 1998 – another record low.

Also, the unemployment rate for Hispanics has dropped from an average of 11.6 percent in 1992 to

an average of 5.8 percent in 2000; and the poverty rate for Hispanics as fallen to 25.6 percent, the

lowest since 1979.

With regard to other social and cultural rights, as the percentage of immigrants living in the

United States has increased in recent years, larger numbers of individuals primarily speak languages

 6

 Poverty data for children for 1989, which are from the 1990 census, exclude the small number of children in

households who are not related to the householder.
77

other than English. While the number of individuals who speak or understand English and another

language is also increasing, this diversity in languages has been met with calls for official language

policies or legislation that requires that only English be spoken in the workplace. The present

administration has taken the position that an “Official English” law would effectively exclude

Americans who are not fully proficient in English from employment, voting, and equal participation

in society and be subject to serious constitutional challenge. (Statement of Administration Policy,

H.R. 123, 104th Congress).

Employment Discrimination. Improvements in economic conditions have recently reduced

the national unemployment rate to its lowest level in 30 years. According to the Bureau of Labor

Statistics, the unemployment rate for Black Americans was 8.0 percent in 1999, compared to a

national rate of 4.2 percent. Both figures have declined from the previous year (the national rate was

4.5 percent in 1998, the rate for Blacks was 8.9 percent). By comparison, the estimated

unemployment rate for Hispanics in 1999 was 6.4 percent. The highest rate of unemployment is

found among Native Americans on reservations (in some cases over 50 percent).

Despite strong legal protections safeguarding the right to free choice of employment and to

just and fair conditions of employment, the exclusion of people from employment opportunities on

racial and ethnic grounds remains a significant problem in the United States. Besides hiring,

discrimination persists in the areas of training, promotion, tenure, layoff policies, and the work

environment. Approximately 80,000 complaints of employment discrimination are filed annually

with the EEOC; an additional 60,000 discrimination complaints are filed with state fair employment

practices agencies. In recent years, the government has settled numerous cases involving allegations

of racial discrimination in employment. 

Some recent examples of EEOC cases that have resulted in significant settlements for

plaintiffs are:

-- A $1.25 million settlement of a class action lawsuit against American Seafoods Company,

a Seattle-based, major participant in the U.S. fishing industry. The suit charged the employer with

subjecting eighteen Vietnamese-American workers to discriminatory working conditions based on

their national origin.

-- A $2.1 million settlement of a class employment discrimination lawsuit against Woodbine

Healthcare Center, a nursing home in Missouri. The suit alleged that the employer discriminated

against sixty-two Filipino registered nurses in wages, assignments, and other terms and conditions

of employment based on national origin.

-- A consent decree settling a lawsuit against American National Can Company. The suit

alleged that the employer subjected Black employees to racial harassment, including racially

offensive graffiti, name-calling and jokes. The employer is providing $275,000 to a class of ninety

employees and is establishing a $100,000 Partnership Training Program, designed to improve

employee relations and help employees enhance their problem solving skills.
78

The Department of Labor promotes quality workplaces that are free of discrimination

through a multi-faceted strategy that includes civil rights enforcement, public education and

communication, and strategic partnerships and cooperation. The Department of Labor enforces laws

that ban discrimination by federal contractors and subcontractors in all aspects of employment,

including compensation. The laws also require that federal contractors take pro-active steps to

ensure that all individuals have equal employment opportunities. These laws help prevent pay

discrimination by requiring contractors to conduct self-audits, which may bring to light otherwise

unrecognized pay inequities.

Protection of foreign workers, especially migrants, seasonal and transient workers. In April

1998, the Attorney General announced the creation of an inter-agency Worker Exploitation Task

Force, co-chaired by the Assistant Attorney General for Civil Rights at the Department of Justice and

the Solicitor of the Department of Labor. Using existing federal criminal laws, including 18 U.S.C.

sec. 1584 (Involuntary Servitude), sec. 1581 (Peonage), sec. 894 (Extortionate Collection of Debt),

sec. 1951 (Extortionate Interference with Commerce), and several other statutes governing labor

practices, smuggling and related offenses, the Task Force coordinates the investigation and

prosecution of worker exploitation cases throughout the United States. These cases often involve

the recruitment and smuggling of foreign nationals into the United States for forced labor and

prostitution, and the exploitation of migrant farm workers, sweatshop laborers and other workers.

The Task Force also promotes outreach and public education on the subject to increase awareness.

Some examples of recent cases include:

In United States v. Miguel Flores, et al. (D. S.C. 1997), four defendants were successfully

prosecuted for smuggling farm laborers into South Carolina and Florida from Guatemala and Mexico

and exploiting them through the use of fear and intimidation. While working in labor camps, the

victim workers were threatened, subjected to occasional beatings, and told that if they attempted to

leave before paying off their smuggling fees they would be killed.

In United States v. Carrie Mae Bonds, et al. (E.D. N.C. 1993), Black homeless men in

Atlanta were recruited by the defendant, a farm labor contractor, to work as migrant farm laborers

in North and South Carolina. When the victims arrived at the labor camps they were told that they

were already indebted to the defendant for their transportation and meals. The workers were also

held at gunpoint and told that they could not leave the camps. The matter was resolved through a

successful prosecution by the Department of Justice.

The Civil Rights Division of the Department of Justice was involved in the successful

prosecution of eight Thai nationals who enticed citizens from Thailand to travel to the United States

by promising the victims high wages, good hours and freedom. Upon arrival in the United States,

the Thai laborers were transported to a work compound where they were confined and forced to work

up to twenty hours at a time. The victims were housed in an apartment complex in El Monte,

California, surrounded by razor wire and spiked fences and guarded by full-time guards. Threats

were used against the victims and their families to force the workers to remain in the El Monte

compound.

News reports of an extensive, multi-state slavery ring of Mexican nationals, who are both
79

deaf and unable to speak, resulted in charges brought by the United States against twenty defendants

for recruiting and smuggling approximately sixty Mexican nationals to the United States with the

promises of good jobs and for the purposes of exploiting and abusing them for profit. The Mexican

nationals were forced to work under conditions of servitude peddling key chain trinkets on the streets

and subways of New York City. All of the defendants pleaded guilty.

The Department of Justice’s Office of Special Counsel for Immigration Related Unfair

Employment Practices (OSC) is the only office in the federal government whose sole mission is to

protect against workplace discrimination associated with citizenship status. OSC investigates

allegations of national origin discrimination involving small employers (defined as having fewer than

fifteen employees). OSC vigorously investigates and prosecutes charges of discrimination to ensure

that legally authorized workers, often immigrants and refugees, are not discriminated against by

employers. OSC works in partnership with state, local and federal civil rights enforcement agencies

and with non-governmental entities around the nation to educate workers, employers and the general

public about their rights and responsibilities under the immigration laws. It has obtained almost $2

million in back pay for victimized workers and fined violators over $1.4 million since 1987. OSC

has obtained relief, for example, for a United States citizen who was denied the opportunity to apply

for a clerk-typist position at a New York City law firm because of her Spanish accent; for a

native-born Hispanic U.S. citizen poultry plant worker in Arkansas, who was denied a job because

the employer thought she was not a U.S. citizen because she spoke Spanish and had received medical

treatment in Mexico; for immigrant workers retaliated against by their employers for filing unfair

employment practice charges; and for a Puerto Rican woman who was asked to show her green card

to obtain a job at a New York manufacturing company despite the fact that Puerto Ricans are U.S.

citizens at birth. OSC cases have been brought successfully against Fortune 100 companies as well

as small employers in all industries, including airlines, apparel, agriculture, food and restaurants, and

high-skilled professions. 

The United Nations and some human rights advocates have raised concerns about

enforcement of federal laws against unauthorized migrants entering the United States. In particular,

some argue that increased enforcement efforts along traditional border-crossing routes at the U.S.-

Mexico border have resulted in illegal crossing attempts at more dangerous points. This, they allege,

has resulted in increased injury and fatalities at the southern border of the United States. In an effort

to reduce migrant deaths and make the border safer for migrants, the Immigration and Naturalization

Service (INS), in conjunction with the Government of Mexico, implemented the Border Safety

Initiative in June 1998. Through deploying more agents and mobile units at the most hazardous

crossing points, providing agents with safety equipment and training, deploying search and rescue

teams, and expanding public outreach programs, the INS has significantly enhanced border safety.

Other complaints have focused upon the high percentage of removals of individuals to

Mexico as compared to the home countries of other individuals who enter the United States illegally

or overstay their visas. Also, detention conditions and mandatory detention policies enacted in 1996

have been the focus of concerns. 

 Unions. U.S. law guarantees all persons equal rights to form and join trade unions, as

required by Article 5(e)(ii). A private sector union, which is the exclusive bargaining representative
80

under the National Labor Relations Act (NLRA), 29 U.S.C. sec. 151, has the responsibility to fairly

represent each of the employees for whom it is the bargaining agent. Although unions have broad

bargaining discretion, they must exercise that discretion fairly and in good faith. Unions are not

barred from making contracts that negatively affect a segment of the bargaining unit, but they are

prohibited from making discriminatory contracts based on irrelevant or invidious considerations

(such as race or ethnicity). Similar protections are provided to railway and airline employees under

the Railway Labor Act, 29 U.S.C. sec. 152, and to federal employees under the Civil Service Reform

Act of 1978, 5 U.S.C. sec. 7101.

Enforcement of the NLRA’s prohibitions is entrusted to the National Labor Relations Board,

its independent General Counsel, private employees, and the judicial system. Enforcement of the

Railway Labor Act is provided by arbitration through the National Mediation Board. Under the Civil

Service Reform Act, hearings are held by the Federal Labor Relations Authority and appeals of its

decisions are made directly to the Federal appellate courts. 5 U.S.C. sec. 7123.

Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the

basis of race, color, sex, religion, or national origin, also covers workers within their unions.

Enforcement of Title VII is by private individuals and or by the Federal Equal Employment

Opportunity Commission. 

Housing. Both federal and state laws guarantee equal rights to housing, as mandated by

Article 5(e)(iii), and they prohibit discriminatory practices in the sale and rental of housing as well

as in the mortgage lending and insurance markets related to housing. The Departments of Justice

and Housing and Urban Development have vigorously prosecuted violations of the federal civil

rights statutes in an effort to reduce housing discrimination.

The Fair Housing Act, originally enacted as Title VIII of the Civil Rights Act of 1968 and

amended by the Fair Housing Amendments Act of 1988 (42 U.S.C. sec. 3601-19) prohibits

discrimination on the grounds of race, color, religion, or national origin in the sale or rental of

housing, as well as in other real estate related transactions (i.e., lending, insurance, and appraisal

practices), with some limited exceptions. The Act also includes a criminal provision, 42 U.S.C. sec.

3631, which, as discussed in more detail above, is used to prosecute cross-burnings and other

racially-motivated threats and violence directed at people in their homes.

The Fair Housing Act applies not only to actions by direct providers such as landlords and

real estate companies, but also to actions by municipalities, banks, insurance companies, and other

entities whose discriminatory practices make housing unavailable to persons because of their race,

color, religion, sex, national origin, disability, or familial status. In addition, the Equal Credit

Opportunity Act, 15 U.S.C. sec. 1691, prohibits creditors from discriminating against any applicant

for credit on the basis of race, color, religion, national origin, sex or marital status, or age. This

extends to mortgage applications, and therefore protects minority applicants from being

discriminated against in the purchase of homes. This statute is enforced through litigation initiated

by private parties and by the federal government.

The Department of Justice actively enforces laws against discrimination in housing. Most
81

recently, in 1999, the Justice Department resolved a case, Unites States v. Vernon, against an

apartment complex for refusing to rent apartments in Albuquerque, New Mexico to Blacks. The case

was resolved by a consent decree that required the owner to pay monetary damages to victims of the

discrimination. Similar settlements were reached in cases brought against landlords in Richmond,

Virginia and Jackson, Mississippi.

In United States v. Big D Enterprises, the Department successfully tried a case against an

Arkansas landlord who discriminated against African American apartment-seekers. The court's

decision awarding compensatory and punitive damages was affirmed on appeal.

In United States v. Boston Housing Authority, the Department alleged that the landlord was

responsible for failing to respond to and take corrective actions to protect Black and Hispanic

families who were who were subjected to racial and ethnic harassment from other tenants, including

racial and ethnic epithets, threats, graffiti, vandalism, and assaults. The case was settled with an

agreement for the landlord to pay damages to the victims and institute corrective policies and

procedures to prevent future problems.

Also, in a case alleging discrimination in lending, the Department of Justice brought an

enforcement action against a bank in Jackson, Mississippi alleging race discrimination. The

complaint alleged that the bank, Deposit Guaranty, used different underwriting criteria for Black

applicants than for White applicants. As a result, Black applicants for credit were three times more

likely to be rejected than similarly situated White applicants. The case was resolved and the bank

was required to pay $3 million in monetary damages and to institute uniform and centralized policies

and procedures. Enforcement actions have been brought on behalf of Blacks, Native Americans,

Hispanics and others throughout the United States.

In 2000, the Department of Justice, along with the Federal Trade Commission and HUD,

filed and settled a suit in United States v. Delta Funding Corporation, alleging violations of fair

housing, fair lending, and consumer protection laws in making its loans. This lawsuit marks the first

such combined action was taken by the federal agencies. The complaint alleged that Delta, which

 made loans with the assistance of mortgage brokers, violated the Fair Housing and Equal Credit

Opportunity Acts by granting home mortgage loans with higher broker fees to African American

females than those provided to white males, that it violated the Real Estate Settlement Practices Act

by allowing unreasonable broker fees, and that it violated the Home Ownership and Equity

Protection Act by engaging in asset-based lending. The settlement provides for injunctive and

monetary relief.

Health and Health Care. Although the U.S. health care system provides the finest overall

care in the world, the data show significant disparities with regard to certain health measures. For

example:

• Infant mortality rates are 2.5 times higher for Blacks than for Whites, and 1.5 times

higher for Native Americans. In 1997, the infant mortality rates for Whites was 6.0

deaths per 1000 live births, compared to 13.7 deaths per 1000 live births for Blacks.
82

• Black men under age 65 have prostate cancer at nearly twice the rate of White men;

• The death rate from heart disease for Blacks is 41percent higher than for Whites (147

deaths per 100,000, compared with 105 deaths).

• Diabetes is twice as likely to affect Hispanics and Native Americans as the general

population. Diabetes rates are 70 percent higher for Blacks than for Whites.

• Black children are three times more likely than White children to be hospitalized for

asthma.

• The maternal mortality rate for Hispanic women is 23 percent higher than the rate for

non-Hispanic women. Black women have a five percent higher death rate in childbirth

than non-Hispanic White women.

• Blacks experience disproportionately high mortality rates from certain causes, including

heart disease and stroke, homicide and accidents, cancer, infant mortality, cirrhosis and

diabetes.

• Native Americans are 579 percent more likely to die from alcoholism, 475 percent more

likely to die from tuberculosis and 231 percent more likely to die from diabetes than

Americans as a whole.

• Individuals from minority racial and ethnic groups account for more than 50 percent of

all AIDS cases, although they represent only 25 percent of the U.S. population.

• The rate of AIDS cases was 30.2 per 100,000 for Whites in 1993. It fell to 9.9 in 1998.

The rate for Blacks in 1993 was 162.2; 84.7 in 1998. The rate for Hispanics fell from

89.5 in 1993 to 37.8 in 1998.

Health Care Professionals. In 1996, about 740,000 medical doctors practiced in the United

States (280 per 100,000 population). Minorities are likely to live in areas under-served by these and

other medical professionals. Poor urban communities with high proportions of Blacks and Hispanics

averaged only 24 physicians per 100,000. Poor communities with low proportions of Blacks and

Hispanics averaged 69 doctors. This shortage is exacerbated by data that show Black physicians are

five times more likely than other doctors to treat Black patients, and Hispanic doctors are 2.5 times

more likely than other doctors to treat Hispanic patients. Minority doctors are also more likely to

treat Medicaid or uninsured patients than White doctors from the same area.

Health Care Facilities. There are about 6,200 hospitals in the United States providing more

than one million beds. Before the 1960s, hospitals were voluntary organizations and did not face

the same legal requirements as public institutions. In addition, hospital medical staffs were selfgoverning, which gave them freedom to select members, choose patients, and adopt their own

payment policies. In many parts of the country, health care services and providers were segregated
83

by race. Since passage of civil rights laws in the 1960s, these practices are no longer legal.

Health Care Financing. It is primarily through health insurance that Americans pay for their

health care. Employer-provided health plans cover some of the costs of health care; others rely on

private health insurers or managed care organizations, such as health maintenance organizations.

Those without insurance must rely on financial assistance to obtain health coverage, and may qualify

for public assistance, such as supplementary security insurance.

Public assistance for health care includes Medicare (for the elderly) and Medicaid (for the

non-elderly poor). Medicare provides health insurance coverage for persons aged 65 years and older,

and individuals with disabilities. Medicare provides health care coverage for more than 38 million

people at a cost of about $200 billion. Medicaid provides coverage for low-income persons. It is

administered by the states with matching funds from the Federal government. Medicaid covers 37

million people at a cost of about $164 billion. While Medicaid rules and policies are set and

monitored by federal and state agencies, the administration of the programs is run by insurance

companies. 

Although Medicare and Medicaid provide more than 70 million people with health coverage,

a large number of Americans remain uninsured and unable to access quality health care. Most of the

uninsured are minorities and women with children, resulting in unequal access to health care. Almost

30 percent of Hispanic children, and 18 percent of Black children are estimated to be without health

insurance. Moreover, immigrants, those who are unemployed, work part-time, or are retired often

have inadequate insurance. 

Eliminating Disparities in Health Care Access. The U.S. government has long sought to

address the need for equal access to quality health care. During the past 35 years in particular,

federal civil rights laws and policies have addressed the need to ensure equal access to health care

and nondiscrimination in health care programs for racial and ethnic minorities. Congress has created

several federal statutes designed to achieve equal protection of the laws through an emphasis on

equality of access to institutions, including the nation’s health care system. These statutes have

helped establish the framework for the federal government’s efforts to eliminate discrimination in

the health care delivery system.

Two statutes are particularly relevant to health care: (1) the Hill-Burton Act, formally

Title VI and XVI of the Public Health Service Act of 1964, Public Law No. 79-725, 60 Stat. 1040

(1946), codified as amended at 42 U.S.C. sec. 291-291-o (1994) and Pub. L. No. 93-641, 88 Stat.

2225 (1974); and (2) Title VI of the Civil Rights Act of 1964, Pub. L. No. 88-352, Title VI, 78 Stat.

252 (codified as amended at 42 U.S.C. sec. 2000d-2000d-7 (1994)).

When it was first enacted in 1946, the Hill-Burton Act was designed as a means for

facilitating hospital construction, especially in rural communities. In 1964, however, Congress

reformulated Hill-Burton as a key provision in the Public Health Service Act to include the

modernization of existing hospital facilities. In 1974 the Act was amended yet again, this time

requiring that hospitals receiving funds provide a specified amount of service to those unable to pay.

Additionally, a facility receiving funds was to be made available to all members of the community
84

in which it was located, regardless of race, color, national origin or creed.

The Department of Health and Human Services (HHS) is the federal agency with primary

responsibility for enforcing Title VI in the health care context, as well as other civil rights statutes

and provisions addressing equal access to quality health care. HHS seeks to ensure compliance with

the nondiscrimination provisions of these laws by relying on implementing regulations, policy

guidance, comprehensive full-scope compliance reviews, complaints investigations, mediation,

settlement agreements, technical assistance, outreach and education programs, as well as through

enforcement actions.

The impact of Medicare and Medicaid, originally passed by Congress in 1965, has been

enormous. In 1964, Whites were almost 50 percent more likely than Blacks to see a physician. By

1994 this ratio had been reversed: Blacks were about 12 percent more likely than Whites to have

seen a doctor in the preceding two years. However, Blacks continue to be twice as likely to use

hospital outpatient services, while Whites are substantially more likely to visit a private physician.

President Clinton has committed the nation to an ambitious goal of eliminating by 2010

disparities in health status experienced by racial and ethnic groups in the United States. President

Clinton targeted six health priority areas: infant mortality, breast and cervical cancer screening and

management, cardiovascular disease, diabetes, child and adult immunization levels, and HIV/AIDS.

As part of this effort, for example, the Center for Disease Control recently awarded $9.4 million to

thirty-two community coalitions in eighteen States to reduce the level of disparities in one or more

of the priority areas.

Furthermore, in response to studies showing that language barriers in health care present

serious problems for a large percentage of Americans with limited English proficiency (LEP), on

August 11, 2000, President William J. Clinton issued Executive Order 13166, “Improving access

to services for persons with limited English proficiency.” The President ordered that “each Federal

agency shall examine the services it provides and develop and implement a system by which LEP

persons can meaningfully access those services consistent with, and without unduly burdening, the

fundamental mission of the agency. Each Federal agency shall also work to ensure that recipients

of Federal financial assistance (recipients) provide meaningful access to their LEP applicants and

beneficiaries. To assist the agencies with this endeavor, the Department of Justice has today issued

a general guidance document (LEP Guidance), which sets forth the compliance standards that

recipients must follow to ensure that the programs and activities they normally provide in English

are accessible to LEP persons and thus do not discriminate on the basis of national origin in violation

of title VI of the Civil Rights Act of 1964, as amended, and its implementing regulations. As

described in the LEP Guidance, recipients “must take reasonable steps to ensure meaningful access

to their programs and activities by LEP persons.”

Environmental Justice. The United States recognizes that low-income and minority

communities frequently bear a disproportionate share of adverse environmental burdens and is

working to implement existing laws that better protect all communities. “Environmental justice”

is the fair treatment and meaningful involvement of all people regardless or race, color, national

origin, culture or income with respect to the development, implementation, enforcement and
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compliance of environmental laws, regulations and policies. Fair treatment means that no group of

people, including racial, ethnic, or socio-economic groups, should bear a disproportionate share of

negative environmental consequences resulting from industrial, municipal and commercial

operations or the execution of federal, state, local and tribal programs and policies.

On February 11, 1994, President Clinton issued Executive Order 12898 to all departments

and agencies of the Federal Government directing them to take action to address environmental

justice with respect to minority populations and low-income populations. Agencies were directed,

among other things, to address disproportionate human health or environmental effects of programs

on such populations, to collect additional data on these subjects, and to coordinate their efforts

through a newly-established, interagency working group.

While most environmental laws do not expressly address potential impacts on low income

and minority communities, Executive Order 12898 directs the Environmental Protection Agency

(EPA) “[t]o the greatest extent practicable and permitted by law . . . [to] make achieving

environmental justice part of its mission by identifying and addressing, as appropriate,

disproportionately high and adverse human health or environmental effects of its programs, policies,

and activities on minority populations and low-income populations.” Detailed information about

the EPA’s environmental justice program, the environmental justice federal advisory committee, and

related financial assistance programs is available on the internet at

<http://es.epa.gov/oeca/main/ej/index.html>.

Recently, American Indian and Alaska Natives argued successfully to the EPA that Indian

tribes had suffered environmental injustice because the federal government had not provided them

equitable funding and other agency resources necessary to develop environmental programs.

Federally recognized Indian tribes generally have the authority to regulate activities on their

reservations that affect their environment. Thus, such Indian tribes are in the process of developing

comprehensive tribal environmental laws and regulations. However, unlike the states of the United

States, Indian tribes had not, until recently, been provided the federal resources to assist them in the

development of their environmental programs. Today, the EPA has significantly increased its

funding and technical assistance to Indian tribes. As a result many tribes are now developing and

enacting their own tribal environmental codes and beginning to take charge of their own

environments through the enforcement of these codes and through an improved partnership with

EPA.

Many groups and advocates are concerned that existing civil rights legal remedies may

provide insufficient protection from environmental hazards for minority groups. In R.I.S.E., Inc.

v. Kay, 768 F. Supp. 1144 (E.D. Va. 1991), aff'd, 977 F.2d 573 (4th Cir. 1992), for example, a

Fourteenth Amendment challenge to the siting of county-run regional landfills in predominantly

Black neighborhoods was rejected because the plaintiff had not provided sufficient evidence of

intentional discrimination. The District Court stated that the Equal Protection Clause does not

impose an affirmative duty to equalize the impact of official duties on different racial groups, but

merely prohibits government officials from intentionally discriminating on the basis of race.

Advocates have also asserted violations of Title VI of the Civil Rights Act of 1964 in environmental

justice cases, but there have been no authoritative court decisions on this issue. In December 1997,
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the Third Circuit in Chester Residents Concerned for Quality Living v. Seif, 32 F.3d 925 (3d Cir.

1997), held that plaintiffs, Black residents of the predominantly Black city of Chester, Pennsylvania,

had a private right of action under EPA’s Title VI disparate impact regulations to bring a lawsuit

challenging alleged discriminatory effects of the state’s environmental permitting practices. The

Supreme Court granted certiorari review, but then dismissed the case and vacated the opinion as

moot when the permit at issue in the case was withdrawn in August 1998. 524 U.S. 974 (1998).

Some have argued that the U.S. Navy’s use of Vieques Island in Puerto Rico as a bombing

range has had negative environmental consequences for Puerto Ricans living on or near the island.

In 1999, the death of a civilian security guard (the first in over sixty years of the Navy’s use of the

range) sparked extensive protests against the U.S. Navy’s use of the range. 

Federal agencies have addressed environmental justice issues in several contexts. For

example, the White House Council on Environmental Quality (CEQ) issued guidance to agencies

on addressing environmental justice concerns under the National Environmental Policy Act, 42

U.S.C. 4321-4370d, which requires agencies to analyze the environmental and related

socio-economic, cultural and other impacts of their decisions. The EPA has established a formal

advisory council made up of representatives from community organizations, academia, NGOs,

industry, and state and local governments to advise the agency of environmental justice policy

matters. Agencies have also conducted outreach to affected communities to hear about

environmental justice concerns in a variety of contexts, ranging from siting of transportation projects

to hazardous waste cleanup remedies to selecting supplemental environmental projects in

environmental enforcement actions. Moreover, the Agency’s Environmental Appeals Board and

other administrative tribunals review agency decisions for compliance with Executive Order 12898,

described above.

Education and Training. Racial segregation in education has been illegal in the United States

since the U.S. Supreme Court’s landmark decision in Brown v. Board of Education, 349 U.S. 483

(1954). As a result of that decision, the Civil Rights Act of 1964, and Swann v. Board of Education,

402 U.S. 1 (1971), schools became increasingly integrated. Subsequently enacted statutes provide

additional protections. Many enforcement actions have been brought by the government. The

Department of Justice has brought more than 200 cases involving more than 500 school districts that

practiced de jure discrimination. The U.S. Department of Education administers a number of

significant laws and programs many of which are replicated at the state and local level. In their

totality, these measures create a legal and policy framework aimed at the elimination of race-based

disparities in educational quality and opportunity. Today, the American public educational system

is open and accessible to all, regardless of race, ethnicity, immigration status, or socio-economic

status.

The Office for Civil Rights (OCR) within the U.S. Department of Education (Department)

bears the primary federal responsibility for eliminating barriers to equal educational opportunity.

This office enforces a number of laws prohibiting discrimination in programs and activities receiving

federal financial assistance.
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OCR’s statutory enforcement responsibility includes Title VI of the Civil Rights Act of 1964

(Title VI), and its implementing regulation at 34 C.F.R. Part 100 and 101, which prohibit race, color,

and national origin discrimination. This statutory and regulatory framework affects virtually the

entire scope of education in the United States, as nearly all education institutions in the nation – from

elementary through graduate or professional schools – receive federal financial assistance. OCR

monitors the activities, practices and policies of:

• nearly 15,000 public school districts;

• more than 3,600 colleges and universities;

• approximately 5,000 proprietary organizations, such as training schools for

truck drivers and cosmetologists; and

• thousands of public libraries, museums and vocational rehabilitation agencies.

Currently, OCR is responsible for the civil rights provisions for the Magnet Schools

Assistance Program (Title V, Part A of the Elementary and Secondary Education Act). OCR

conducts a pre-grant review of magnet school applications to determine whether the school district

has an eligible desegregation plan or voluntary plan to eliminate, prevent, or reduce minority group

isolation. OCR provides civil rights technical assistance to these school districts.

During its early years, OCR focused on school districts and colleges that were operating

openly segregated education systems. OCR’s work has evolved from an initial focus on monitoring

and enforcing desegregation plans to the more complex and subtle issues of ensuring students and

student applicants equal access to programs and services.

Twelve field offices throughout the country conduct OCR’s enforcement work. The

headquarters office issues policy in response to emerging issues or when there is new legislation,

referenda, or court decisions. Policy guidance is shared broadly to help educators meet their civil

rights obligations. OCR executes its civil rights compliance responsibilities through a number of

activities, including complaint investigations, compliance reviews and technical assistance.

A large share of OCR's work is devoted to investigating civil rights complaints filed by

students, parents and others. OCR has incorporated non-adversarial dispute resolution techniques

into the case resolution process. For example, OCR can act as a neutral third party, mediating

between the student or parent and the school or college to enable them to arrive at an agreement on

how to resolve the issues in a complaint. Or, OCR can negotiate with the recipient, becoming a party

to the resolution agreement resulting from investigating the allegations raised in the complaint.

Often, OCR uses a combination of these techniques to achieve case resolution. In some instances,

OCR reaches the determination that there is insufficient evidence to support a finding of a civil rights

violation. It is only when all other methods fail that OCR moves to formal administrative or judicial

enforcement.

In addition to responding to complaints, OCR initiates and conducts reviews to determine

compliance with the nation's civil rights laws. School districts or local and state education agencies

are targeted using information from contemporary sources. Education and civil rights groups,

community organizations, parents and the media all contribute to the variety of information used in
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OCR's identification process. OCR also relies on statistical data from sources such as the

Elementary and Secondary School Civil Rights Compliance Report, which it administers.

Eliminating discrimination includes the prevention of discrimination. OCR provides

technical assistance to schools and colleges, as well as to community, student and parent groups. The

aid that OCR gives to education institutions helps them comply with federal civil rights

requirements, while the assistance given to students and others informs them of their rights under

the law regarding equal access to educational opportunity.

One example of the timely assistance given by OCR to school districts and state education

agencies is the work of OCR’s San Francisco office. California’s Proposition 227, which passed in

June 1998, requires school districts to redesign their education programs for the state’s 1.4 million

English language learners. Before the start of the new school year, districts had to develop new

curricula, obtain new teaching material, revise student and teacher assignments, and educate teachers

and parents about new state requirements. OCR assisted California districts by working with the

state education agency to offer a series of workshops at school districts and county offices of

education focusing on federal law in the context of the new state law.

In addition to the work of OCR and other federal agencies, the current Administration has

instituted and expanded an array of programs to widen college opportunities for students of modest

means – a group disproportionately composed of racial and ethnic minorities.

Nonetheless, in the area of education, there continues to be a mixed record of recent gains

and persistent inequalities. It is noteworthy, however, that inequalities have narrowed. Among the

population 25 years and over in 1998, the proportion of Whites with a high school diploma (84

percent) was higher than for Blacks (76 percent) or for Hispanics (56 percent), but not significantly

different from the figure for Asians and Pacific Islanders (85 percent). In 1980, there was a larger

differential in the proportions who had completed high school for Whites (69 percent) and Blacks

(51 percent) than in 1998.

In 1998, 25 percent of the White population 25 years and over had completed college

(Bachelor’s degree or higher). The corresponding proportions were 15 percent for Blacks, 42 percent

for Asian and Pacific Islanders, and 11 percent for Hispanics.

On average, Hispanics are likely to have much lower levels of educational achievement than

Whites or Blacks. For Hispanics generally, the figures for 1999 indicate that 61.6 percent of the

population, 25 to 29, had completed at least high school. Those from Central and South America

were more likely to have achieved that educational level (62.9percent) than Mexican Americans

(46.2percent) or Puerto Ricans (59.8percent), with Cubans at about the same level (62.1percent).

According to the 1990 decennial census, the proportion of American Indians, Eskimos, and

Aleuts 25 years and over who were high school graduates was 66 percent. Corresponding figures

from the 1990 census were 78 percent for Whites, 63 percent for Blacks, 78 percent for Asians and

Pacific Islanders, and 50 percent for Hispanics.
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For the proportions who had completed college, the 1990 census shows 9 percent for

American Indians, Eskimos, and Aleuts; 22 percent for Whites; 11 percent for Blacks; 37 percent

for Asians and Pacific Islanders; and 9 percent for Hispanics.

Bilingual education. The current Title VII of the Elementary and Secondary Education Act

responds to the needs of students for whom English is a second language. Section 7102(a)(15)

includes among the underlying congressional findings the following: “[T]he Federal Government,

as exemplified by Title VI of the Civil Rights Act of 1964 and Section 204(f) of the Equal Education

Opportunities Act of 1974, has a special and continuing obligation to ensure that States and local

school districts take appropriate action to provide equal educational opportunities to children and

youth of limited English proficiency.” Further, in Section 7102(b), the Congress declares it to be the

policy of the United States “to assist State and local educational agencies, institutions of higher

education and community-based organizations to build their capacities to establish, implement and

sustain programs of instruction for children and youth of limited English proficiency.” To

implement this policy, Title VII provides for assistance for, among other things, bilingual education

capacity and demonstration grants and research, evaluation, and dissemination.

In 1974, Congress established the Office of Bilingual Education and Minority Languages

Affairs to help school districts through funding and providing technical assistance to meet their

responsibility to provide equal education opportunity to limited-English proficient children. A

subsequent Supreme Court ruling, Plyler v. Doe, established that states cannot deny an equal public

education to undocumented immigrant children. Amendments to Title VII since its initial passage

have expanded eligibility to students who are limited-English proficient; emphasized the transitional

nature of native language instruction; reinforced professional development; supplied additional funds

for immigrant education; and provided for research and evaluation at the state and local level.

Today, 2.8 million elementary and secondary students, speaking over 150 languages, are

identified as limited-English proficient. Among the several components that make up the Clinton

Administration’s Hispanic Education Action Plan are bilingual, immigrant, and migrant education

programs targeting elementary and secondary students, as well as sustained mentoring and college

assistance programs. In addition, the Administration has proposed expansion of an adult education

“English as a Second Language Civics” program to assist immigrants in learning English, navigating

public institutions, and being involved in their communities.

Cultural Activities. Article V(e)(vi) requires States Parties to recognize and guarantee the

right to equal participation in cultural activities. In the U.S. system, these rights are protected

primarily through limitations on the ability of the government to interfere or restrict the expression

of one’s culture. The First Amendment to the U.S. Constitution guarantees an individual’s freedom

of speech and peaceable assembly, which includes the expression of one’s cultural identity. 

The United States has a rich and diverse cultural heritage. From its earliest days, the United

States was a haven for immigrants fleeing persecution on the basis of religion, and it continues to

be a destination for immigrants of many different races, ethnicities and nationalities. Largely

because of this history, most Americans recognize and appreciate the value of cultural diversity, and

both individuals and groups pursue their cultural identities in a wide variety of ways. This tradition
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is manifest in the thousands of ethnic heritage parades and events, ethnic and cultural clubs,

educational programs, and religious, theatrical, artistic, and musical events that celebrate cultural

diversity nationwide.

One medium where ever more culture is created, ever more commerce is transacted, and ever

more learning takes place is the Internet. Unfortunately, unequal access to technology and high-tech

skills has resulted in a “digital divide” in the United States along the lines of income, educational

level, race and geography. The current Administration is striving to make access to computers and

the internet as universal as the telephone is today – in school, libraries, communities and homes.

Working in partnership with the private sector, the Administration seeks to: broaden access to

technologies such as computers, the Internet, and high-speed networks, provide people the skilled

teachers and the training they need to master the information economy, and promote on-line content

and applications that will help empower all Americans to use new technologies to their fullest

potential.

Access to Public Accommodations. Consistent with Article 5(f), U.S. law provides strong

protections for the right of equal access to any place or service intended for use by the general public,

including transport, hotels, restaurants, cafes, theaters and parks. 

Title II of the Civil Rights Act of 1964 (42 U.S.C. sec. 2000a) prohibits discrimination

because of race, color, religion, and national origin in certain places of public accommodation, such

as hotels, restaurants, and certain places of entertainment. In addition, most states have their own

laws requiring equal access to public accommodations.

Over the last five years, the majority of public accommodation cases pursued by the Justice

Department have involved bars or nightclubs that utilize a similar pattern to keep Black patrons from

entering the establishment. Typically the club owner advises Black patrons that the club is private

and the patron would have to apply for membership. White patrons, in contrast, are allowed entry

without membership or are offered the opportunity to become members on the spot. Cases that

raised this scenario include United States v Patin, United States v. Broussard, United States v.

Lagneaux, and United States v. Richard, all cases filed in Louisiana in 1995, 1996, 1997, and 1999

respectively; and United States v. C & A Enterprises, filed in West Virginia in 1996. These cases

were resolved and the defendants enjoined from continuing their discriminatory practices. 

Two Title II suits in recent years have more broadly alleged discrimination in nationwide

chains. In 1999, the Department sued HBE Corporation, the owner of the Adam's Mark Hotels. The

lawsuit alleged that AMH placed non-white guests in less desirable rooms than white guests or

segregate them to the least desirable areas of the hotel; charged non-white guests higher room rates

than white-guests; charged different prices for goods and services for non-whites guests than white

guests; applied stricter security, reservation, and identification requirements to non-white guests than

white guests; and had policies to limit the number of non-white clientele in the hotel’s restaurants,

bars, lounges or clubs. A proposed settlement of the case is pending court approval. It will enjoin

future discrimination at Adam's Mark Hotels and provides for a compliance officer to monitor

compliance with the settlement decree; investigate any complaints filed by hotel guests; review,

approve, and monitor a training program as well as oversee a testing program; and establish a
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marketing plan to identify, target, and reach African American markets.

Several years earlier, a suit was filed against the Denny’s Restaurant chain. On May, 24,

1994, settlement papers were filed in the United States’ Title II action and two private lawsuits

against Denny's, one of the largest food service companies in the country. The settlement, embodied

in two consent decrees filed in U.S. District Courts in Los Angeles and Baltimore, resolved these

suits that had claimed that Denny's failed to serve Blacks, required Blacks to pre-pay for their food,

forced them to pay a cover charge, and neglected to serve them. Under the settlement, Denny's

agreed to pay $45 million in damages and implement a nationwide program to prevent future

discrimination. The decrees required Denny's, inter alia, to: retain an independent Civil Rights

Monitor with broad responsibilities to monitor and enforce compliance with the decrees; educate

and train current and new employees in racial sensitivity and their obligations under the Public

Accommodations Act; implement a testing program to monitor the practices of its company and

franchised-owned restaurants; and feature Black and members of other racial minority groups as

customers and employees in advertising to convey to the public that all potential customers,

regardless of their race or color, are welcomed at Denny's. The decrees are scheduled to expire in

November 2000.

ARTICLE 6

Article 6 requires States Parties to assure persons within their jurisdictions effective

protection and remedies through tribunals and other institutions for acts of racial discrimination,

including the right to seek “just and adequate reparation or satisfaction for any damage suffered as

a result of such discrimination.”

As set forth throughout this report, U.S. law offers those affected by racial discrimination a

number of different remedies, ranging from individual suits in the courts, to reliance on

administrative procedures to criminal prosecution of offenders.

Private suits. The federal statutes derived from the Civil Rights Act of 1868, including most

of the laws dealing with discrimination by governments and their officials, give the individual a

“cause of action,” i.e., a right to sue in federal court to correct the alleged discrimination. See, e.g.,

42 U.S.C. sec. 1981-1985. These suits may seek injunctive relief, which requires the governmental

unit or official to correct the conduct, and monetary relief, which requires the payment of damages.

A government official who “knew or ought to have known” that the conduct was unconstitutional

or in violation of federal law may also be subjected to punitive or exemplary damages. If the

plaintiff “substantially prevails” in one of these suits, the plaintiff can also recover attorneys’ fees.

Private litigation under these provisions has played a substantial role in promoting and protecting

racial equality. Non-governmental organizations that promote civil rights are frequently involved

in assisting individual lawsuits. Further, the availability of recovery of attorneys fees has encouraged

lawyers and organizations to come to the assistance of such individuals and provides the financial

wherewithal to pursue future cases. 

Civil Suits by the United States. In many circumstances, the Federal government is

authorized to initiate suits to enforce racial equality. See, e.g., the Voting Rights Act, the Fair
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Housing Act; Titles II, IV and VII of the Civil Rights Act; and the Equal Credit Opportunity Act.

Involvement of the government agency in such litigation is important because these suits usually

include allegations of discriminatory “patterns or practices” that require intensive investigation that

would be difficult for a private party to pursue. The Department of Justice also administers the preclearance requirement of the Voting Rights Act, which requires review and approval of changes in

state and local voting practices and procedures to assure that they do not have the purpose or effect

of denying or abridging the right to vote of members of minority groups. It applies in states and

other jurisdictions which historically have denied or abridged minority voting rights.

In addition, under the Fair Housing Act, the Secretary of Housing and Urban Development

may initiate investigations and file complaints relating to cases of housing discrimination. The

Secretary can also commence actions in administrative tribunals to enforce laws prohibiting housing

discrimination.

Criminal prosecution. A number of federal statutes also provide for criminal penalties for

intentional or willful violations. In these cases, the U.S. Attorney for the district in question will

initiate an investigation, either on the prosecutor’s own initiative or on information provided by the

Civil Rights Division or by the private complaining party.

Administrative remedies. An entire federal agency, the Equal Employment Opportunity

Commission (EEOC), is devoted to the enforcement of anti-discrimination laws relating to

employment. An individual may file a complaint with the Commission, which engages in initial

investigation and attempts to provide a resolution of the matter through conciliation. In cases where

conciliation fails and a determination is made to file a lawsuit to vindicate the public interest, it may

assume direct responsibility for prosecuting the case. In other cases, it will issue a “right to sue”

letter, permitting the individual to pursue the claim in private litigation.

By statute, the EEOC has five Commissioners and a General Counsel, each of whom is

appointed by the President of the United States and confirmed by the Senate. With its headquarters

in Washington, DC, the EEOC operates approximately fifty field offices nationwide, including

district, area and local offices. Each of these field offices has an enforcement staff responsible for

accepting charges of discrimination from the public, investigating the charges, and attempting

conciliation and mediation. Each district and most area offices also have a legal unit, responsible

for providing legal advice to the enforcement staff and bringing lawsuits in federal court to enforce

Title VII. 

In addition to enforcement efforts through the administrative process and litigation, the

EEOC enforces Title VII though various other means. For instance, the EEOC issues procedural

regulations implementing Title VII, requires employers to post notices summarizing the requirements

of Title VII, and requires large employers to file reports on the relationship of minority workers to

the employer’s total workforce in specified job categories.

The EEOC recently has been able to implement significant changes in the pursuit of ending

race discrimination. The EEOC has increased its staff of investigators and attorneys and has

modernized its technology. In addition, the EEOC has developed a comprehensive strategic
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enforcement model to reduce the backlog of charges, increase the number of charges resolved

through mediation, develop closer ties with its stakeholders in local communities, and increase

public awareness of discrimination. In the arena of federal employment, the EEOC has modified the

regulation governing the administrative complaint process, 29 C.F.R. §1614, to streamline the

process by eliminating unnecessary layers of review and addressing perceptions of unfairness. The

most significant change is the transfer of authority to issue a final decision on discrimination

complaints from the agency charged with discrimination to the EEOC. 

Since its creation in 1965, the EEOC (and state and local fair employment practice agencies,

known as FEPAs) have received approximately 1.2 million charges of discrimination based on race

and approximately 275,000 charges of discrimination based on national origin. In Fiscal Year 1999,

the EEOC and the FEPAs received approximately 50,000 charges of discrimination based on race

and approximately 13,000 charges of discrimination based on national origin. Since 1965, the EEOC

and the FEPAs have recovered more than $2.2 billion in monetary damages through voluntary

settlement or conciliation during the administrative process on behalf of victims of discrimination.

 In 1999 alone, the EEOC recovered over $210 million in monetary damages in the administrative

process. The EEOC also has initiated lawsuits based on many meritorious charges that were not

resolved in the administrative process, recovering over $8.5 million in 1999. Over the past ten years,

the EEOC has filed 866 lawsuits alleging discrimination based on race and 242 lawsuits alleging

discrimination based on national origin. In many cases, the EEOC secures other valuable relief in

addition to monetary damages, such as reinstatement of wrongfully discharged employees, courtordered training in the equal employment opportunity laws, the development of written equal

employment opportunity policies, and court orders prohibiting specific discriminatory practices. 

Taken together, the monetary and non-monetary relief serve the dual purpose of compensating

victims of discrimination and preventing similar forms of discrimination from recurring in the future.

Other federal agencies also play important roles in enforcing civil rights and equal protection:

At the Department of Labor's Office of Federal Contract Compliance Programs, individuals

may file complaints if they believe they have been discriminated against by federal contractors or

subcontractors, and the Office itself may conduct compliance investigations to determine whether

contractors are complying with Executive Order 11246's non-discrimination and affirmative action

obligations. Complaints may also be filed by organizations on behalf of the person or persons

affected. Other departments administer laws requiring recipients of federal financial assistance to

provide equal opportunity for participants of programs that receive the federal financial assistance.

As discussed earlier, the Department of Education’s Office of Civil Rights (OCR) bears

primary responsibility for enforcing laws prohibiting discrimination in educational programs and

activities receiving federal financial assistance. But while a large share of OCR’s work is

enforcement, OCR also issues national policy statements that define to the nation-at-large the scope

of legal requirements to eliminate racial barriers to equal educational opportunity. These policies

address many key, sometimes controversial issues, including:

Educational Opportunity for English Language Learners. OCR requires school districts to

ensure equal educational opportunity to English language learners. Districts are required to take
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affirmative steps to provide equal educational opportunity where the inability to speak and

understand the English language excludes national origin minority group children from effective

participation in the district’s educational program. The Supreme Court in Lau v. Nichols, 414 U.S.

563 (1974) upheld OCR’s policy that requires school districts to ensure that language barriers do not

exclude English language learners from effective participation in their programs. 

Higher Education Desegregation. OCR’s policy provides guidance to institutions of higher

education pursuant to the Supreme Court’s decision in Ayers v. Fordice, 111 F. 3d 1183 (4th Cir.

1997) cert. denied, 522 U.S. 1084 (1998), requiring the elimination of vestiges of desegregation in

formerly de jure higher education systems.

Race Based Financial Assistance. OCR’s policy guidance on race based financial assistance

sets forth five principles that satisfy the requirements of Title VI. These principles provide that:

1. A college may make awards of financial aid to disadvantaged students without regard to race

or national origin even if that means that such awards go disproportionately to minority

students.

2. A college may award financial aid on the basis of race or national origin if the aid is awarded

under a federal statute that authorizes the use of race or national origin.

3. A college may award financial aid on the basis of race or national origin if the aid is

necessary to overcome the effects of past discrimination. A finding of discrimination may

be made by a court or administrative body, and may also be made by a State or local

legislative body, as long as the legislature has a strong basis in evidence identifying

discrimination within its jurisdiction for which that remedial action is necessary. In addition,

a college may voluntarily take action to remedy its past discrimination where it has a strong

basis in evidence for concluding the action is necessary to redress its past discrimination and

its financial aid program is narrowly tailored to that purpose.

4. A college may promote its First Amendment interest in diversity by weighing many factors

– including race and national origin and its efforts to attract and retain a student population

with different experiences, opinions, backgrounds, and cultures – provided that the use of

race or national origin is consistent with the constitutional standards reflected in Title VI, i.e.,

that it is a narrowly tailored means of achieving the goal of a diverse student body.

5. Title VI does not prohibit an individual or an organization that is not a recipient of federal

financial assistance from directly giving scholarships or other forms of financial aid to

students based on their race or nation origin. Principles 3 and 4 apply to the use or racetargeted privately donated funds by a college and may justify awarding these funds on the

basis of race or national origin if the college is remedying past discrimination or attempting

to achieve a diverse student body.

Racial Harassment. OCR’s policy on racial harassment provides that a recipient of federal

financial assistance violates Title VI if 1) an official representative of a recipient treats someone
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differently in a way that interferes with or limits the ability of the student to participate in or benefit

from the recipients’ program; 2) the different treatment occurred in the course of the official or

representative’s assigned duties or responsibilities, and 3) the different treatment was based on race,

color, or national origin, and there was no legitimate nondiscriminatory non-pretextual basis for the

different treatment. An official representative will also be in violation of Title VI if his or her

actions establish or contributes to a “racially hostile environment” (1) when the recipient had actual

or constructive notice of a racially hostile environment and (2) a racially hostile environment existed,

and (3) the recipient failed to respond adequately to redress the racially hostile environment.

U.S. Commission on Civil Rights Oversight. In addition to institutions devoted to law

enforcement, other bodies are involved in making policy recommendations to improve the protection

of the rights of minorities. The Civil Rights Commission conducts studies and makes

recommendations in this regard, and it receives communications from individuals and groups about

alleged discrimination.

Further, through fifty-one State Advisory Committees, including the District of Columbia,

the Civil Rights Commission receives information on civil rights issues in the states. Through the

Commission’s regional directors, the Committees hold regular meetings, cooperate on race-related

projects, and submit findings to the Commission on civil rights issues that have regional importance.

From time to time, the Commission may recommend specific projects to be undertaken.

Equal opportunity officers. Another approach to protecting individuals is the requirement

that many larger employers designate an “equal opportunity officer” within their organization, whose

responsibility is to receive and respond to complaints about employment discrimination within the

firm. In effect, this requirement provides an internal advocate within the firm for protection of the

rights secured by this Convention. The equal opportunity officers may make recommendations to

prevent discriminatory practices, as well as to remedy instances that have occurred. They are not,

strictly speaking, “enforcement” officers, but have had a significant impact on realization of the

goals of non-discrimination.

ARTICLE 7

Article 7 requires States Parties to adopt measures in the fields of teaching, education, culture

and information to combat racial discrimination and to promote racial and ethnic tolerance and

friendship among nations and groups, and to propagate the purposes and principles of the UN

Charter, the Universal Declaration of Human Rights, the UN Declaration on the Elimination of All

Forms of Racial Discrimination, and this Convention.

The President's Initiative on Race actively educated the American people about the role of

race in our nation’s history and its current impact on our society. From the Initiative on Race,

several publications were produced and widely disseminated to community groups, educational

institutions, public officials and individuals in order to provide a more accurate picture of the nature

of racial issues.

“Changing America: Indicators of Social and Economic Well-Being by Race and
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Hispanic Origin” documents current differences in key indicators of well-being: education, labor

markets, economic status, health, crime and criminal justice, and housing and neighborhoods. The

information in this publication provides a factual base on which to build dialogue about race.

“Pathways to One America in the 21st Century: Promising Practices for Racial

Reconciliation” profiles community-based organizations focused on furthering racial reconciliation

in a variety of fields. This publication is designed to be a reference tool to be used by Americans

who wish to work in partnership with others working to heal racial barriers and close opportunity

gaps.

The “One America Dialogue Guide” is a step-by-step educational resource on ways to

organize and conduct a cross-cultural dialogue in one’s own community.

“One America in the 21st Century: Forging a New Future” is the final report to President

Clinton by the Advisory Board to the President's Initiative on Race. This comprehensive document

is an account of the Advisory Board's fifteen-month examination of race relations in the United

States. By exploring the historical basis for existing perceptions and misperceptions of race in

America, this report creates a social context for productive dialogue on how to build One America.

 The report also makes specific recommendations on how the government, the corporate community,

non-governmental organizations and private citizens can take active steps to promote racial

reconciliation.

All four publications are available in print and may be viewed and printed from the White

House website <http://www.whitehouse.gov>.

The President's Initiative for One America continues to further the President’s

goals of educating the American public about race. In October 2000, the Initiative for One America

and the Department of Education will organize the third annual Campus Week of Dialogue. This

year’s theme: “Many Paths, One Journey: Building One America” reflects the mission of educating

students on diversity-related issues and providing all students the opportunity to succeed in a multiracial society.

The United States also promotes the goals of Article 7 globally through the U.S. Department

of State, particularly the U.S. Information Service. Media like World Net and Voice of America are

used to broadcast news and information programs on rule of law, tolerance and other topics related

to combatting racism and to promote tolerance. These outlets give overseas audiences direct access

to experts and policy makers in the United States concerned with issues related to race.

The United States also sends speakers to overseas missions to foster discussion on issues

important to multi-cultural societies. Similarly, the State Department’s Office of Public Diplomacy

distributes publications to target organizations ranging from host country governments to local media

and civil society groups such as NGOs.

Moreover, the United States promotes the interests identified by Article 7 through various

professional and education exchange programs. Through the Professionals in Residence program,
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the Department of State sends specialists to non-academic institutions such as foreign media

organizations and government ministries to promote the interests identified in Article 7. The United

States is also active in CIVITAS, an international consortium for civic education which maintains

a worldwide network devoted to promoting informed and responsible citizenship. In addition, the

United States devotes substantial resources to the Fulbright Scholar Program, providing enhanced

educational opportunities to U.S. and foreign scholars through grants and fellowships, and the

International Visitors Program, which brings foreign judges, lawyers, NGO leaders and teachers to

the United States for study tours and professional conferences. 

In the fall of 1997, President Clinton identified the prevention and prosecution of hate crimes

as a priority issue for the nation and announced the creation of a national initiative to examine the

current state of race relations in America. In response, the Attorney General established a Hate

Crime Working Group consisting of staff from all Justice Department agencies. A major initiative

of the Hate Crime Working group is to expand and improve hate and bias crime data collection

within the Department of Justice.

Through its Office of Victims of Crime (OVC), the Department of Justice has taken steps to

adopt measures to combat discrimination and to promote understanding among racial and ethnic

groups. This is evidenced through various measures and programs that are OVC funded

In early 1998, OVC coordinated with the Bureau of Justice Statistics to develop a survey

instrument to identify the number of Victims of Crime Act funded victim assistance programs that

serve hate and bias crime victims. OVC conducted this informal survey in May, 1999.

OVC provides funding to the National Victim Assistance Academy which conducts annual

training sessions at five different locations throughout the United States. Each year, the Academy

reaches over 250 participants comprised of state and federal personnel that work with crime victims.

 There is a formal curriculum which includes a chapter on hate and bias crime.

OVC, in conjunction with the Bureau of Justice Administration, and the International

Association of Chiefs of Police, developed an eleven page brochure entitled Responding to Hate

Crimes: A Police Officer’s Guide to Investigation and Prevention. The brochure teaches law

enforcement officers how to identify and respond to hate crimes. This grant project printed 450,000

copies of the brochure which are anticipated for distribution to law enforcement agencies nationwide.

OVC plays a major role in the Justice Department Hate Crime Working Group's Hate Crime

Training for Law Enforcement. OVC assisted in development of four training manuals and a student

workbook. OVC assisted in the development and delivery of special training for local trainers and

to all of the states, who in turn, are now reaching out to the local law enforcement agencies to

provide training on responding to hate crime. Hundreds of local police departments have received

this training in the last year.

As opportunities present themselves OVC provides training on hate crime, hate crime

victims' needs, cultural awareness, and, effective responses to hate crime. This training has been

provided at several national, and local conferences and symposia reaching thousands of victim
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service providers.

OVC also provides grant funding to such non profit organizations as the National MultiCultural Institute which conducts training on cultural sensitivity in dealing with crime victims. 

Approximately 150 people have been trained this year. Additional training sessions are planned.

The Department of Interior operates several programs that promote education and awareness

of diverse students to the fields of science and natural resources. For instance, at Chamizal National

Memorial, Texas, the National Park Service sponsors special programs and activities to broaden

understanding and to encourage perpetuation of cultural heritages in the performing and graphic arts.

The Department of Interior has also begun the Underground Railroad Program nationwide.

 This relatively new program is in the process of identifying hundreds of key people and places in

the US, Canada, and Mexico associated with the network of individuals who guaranteed the safety

of escaped slaves during the 19th Century abolitionist movement. Each person and site selected as

part of this program will be interpreted in terms of the acts of bravery an suffering in the quest for

freedom for all.

CONCLUSION

Over the years, the United States has worked hard to overcome a legacy of racism and

racial discrimination, and it has done so with substantial successes. Nevertheless, significant

obstacles remain. But, as a vibrant, multi-cultural democracy, the United States – at all levels of

government and civil society – continually reexamines and reevaluates its successes and failures,

having the elimination of racism and racial discrimination as its ultimate goal. The United States

looks forward to discussing its experiences and this report with the Committee.
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ANNEX I
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