INTRODUCTION
1. We welcome the second periodic report (Government Report) of the United States of America (U.S.) to the United Nations Committee (Committee) on the Elimination of All Forms of Racial Discrimination. The U.S. Report outlines legislative, judicial, and other measures it believes give effect to its undertakings under the International Convention on the Elimination of All Forms of Racial Discrimination (Convention or CERD Treaty), in accordance with Article 9 thereof.
2. While the Government Report highlights various advances achieved since the submission of its Initial Report to the Committee in 2000 (Initial Report), it does not fully evaluate existing and potential approaches for sustained involvement of all levels of government in the elimination of ongoing individual and institutionalized racism in the U.S. This report supplements the Government submission with additional information and offers recommendations for actions that will, if adopted, enhance the government's ability to comply with the Convention. We hope this will assist the Committee in evaluating compliance and in creating its own recommendations to bolster U.S. commitments to ending all forms of racial discrimination.
A. MANDATING AND MONITORING CERD COMPLIANCE IN THE U.S.
Domestic vs. International Law: Creating an Accountability Mechanism
3. As in 2000, the U.S. has interpreted its CERD commitments in a way that fundamentally limits its obligation to comply with parts of the Convention. Citing a constitutional requirement to limit the powers of the federal government, the U.S. has again relinquished its responsibility to adhere to some provisions not explicitly "mandated" by the Constitution or federal law, even when compliance is constitutionally permissible.
4. We note with great concern the recent Government response to the Committee's 2001 Observations critiquing the U.S. for exempting itself from harmonizing domestic and international law to end racial discrimination. The Committee emphasizes that: "[I]rrespective of the relationship between the federal authorities...and the States, which have extensive jurisdiction and legislative powers...with regard to its obligation under the Convention, the Federal Government has the responsibility to ensure its implementation on its entire territory." There is currently no national body within the U.S., however, tasked with monitoring CERD compliance, and the federal government has done little to ensure state and local compliance.
Ensuring Complete and Accurate Data Collection
5. It is projected that people of color will make up roughly half the U.S. population by 2050, as the number of non-Hispanic Whites in the U.S. continues to decline. Accurate data collection is imperative as we undergo these demographic changes. The Committee has requested that State Parties report "on the demographic composition" of their populations, specifically with respect to their "race, colour, descent and national or ethnic origin." In the U.S., a census is undertaken every ten years to count the total population, the results of which are used to reapportion the House of Representatives and to redistrict political jurisdictions at all levels of government. Census racial and ethnic data is used by many federal agencies and private litigants to help determine where disparities exist, and therefore, where remediation is required by law.
6. Unfortunately, every U.S. census in recent years has resulted in an undercount. Typically, the undercount has been most significant in communities of color, and among children and the poor. Although the Census Bureau improved its performance for 2000 relative to 1990, the count was still incomplete. The current administration, however, has cancelled various census dress rehearsal programs in FY2008 and delayed funding for Bureau activities, thwarting preparations that could make the upcoming 2010 census more accurate.
B. THE STATE OF RACIAL JUSTICE IN THE U.S. – CONCERNS FOR THE COMMITTEE
7. CERD Article 5 requires States to "prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law." According to the U.S., the "Constitution meet[s] this fundamental requirement, as do laws, policies, and objectives of government at all levels." However, recent shifts in executive and legislative priorities, social welfare policies, economic conditions, and judicial philosophy have largely limited access to the rights enumerated in these laws and to remedies for violations of these rights, especially for racial and ethnic minorities.
8. For the last 50 years, there has been a bipartisan national consensus regarding a need to remedy discrimination through robust federal protection and enforcement. But today, that consensus is being unraveled. President Bush and his allies, by touting the rhetoric of "states' rights," which has long been code for racial segregation, have eroded the enforcement of existing civil rights laws and impeded the creation of new ones. Redistributing power to states with little national oversight amounts to an abdication of the federal role in monitoring and enforcing civil rights.
9. Inadequate federal protections threaten the progress made during the 1950s, 1960s, and 1970s toward dismantling de jure segregation and discrimination. With respect to housing, the government continues to turn a blind eye to racial steering, discrimination in real estate sales, and land use practices that exclude or limit housing opportunities for people of color. Consequently, residential segregation increased for low-income Blacks in the 1990s, who are now the most residentially segregated group in the U.S.
10. The notion that education is the great equalizer remains an unrealized dream. A resurgence of residential segregation over the last 20 years has led to the re-segregation of our nation's schools. Rather than encourage schools to integrate, however, the Supreme Court recently struck down two voluntary school desegregation plans in Parents Involved v. Seattle School District No. 1. This ruling undercuts concerted efforts to diversify the racial and ethnic composition of our schools. Furthermore, students of color still bear the brunt of discrimination, poverty, and lack of access to quality education, making them increasingly vulnerable to high dropout rates, poor performance on high stakes exams, and punitive disciplinary policies.
11. In higher education, attacks on affirmative action limit racial diversity in school enrollment. The Supreme Court held in 2003 that universities may consider race as a factor in admissions, so long as its use is limited and necessary to achieving diversity; yet, the Bush administration has repeatedly pressured colleges and universities to abandon all their race conscious policies.
12. Disparities in the criminal justice system continue to disadvantage people of color. Despite the fact that Blacks, Whites, and Latinos use and sell drugs at similar rates, Blacks and Latinos are still more likely than Whites to be searched, detained, prosecuted, given harsher sentences, and to face the death penalty. What was billed for the past 20 years as a systematic effort to target people with high-level involvement in the drug trade has instead resulted in a mass incarceration of nonviolent first-time and low-level offenders – primarily people of color. One of the most disconcerting collateral consequences of mass imprisonment is that millions of minority citizens are disenfranchised – often for life – by state laws regarding certain classes of offenders.
13. We commend Congress for reauthorizing the Voting Rights Act in 2006, which extends for another 25 years the arsenal of tools available at the federal level to promote voter access. But by advocating discriminatory voter ID laws and engaging in widespread voter purges, our political leaders have also shown great hostility toward access to the fundamental right to vote.
14. Regretfully, since the Initial Report, we have continued to see a rise in reported incidents of hate crimes across the U.S. Though the House of Representatives recently passed legislation to facilitate more comprehensive hate crimes reporting and stronger federal protections, organized opposition to the bill from the Bush administration has blocked its enactment.
15. For many victims of discrimination, the judiciary is the last resort. Although the courts once played a crucial role in safeguarding our civil rights, an extremist tendency within the judiciary to adopt narrow understandings of rights increasingly leaves victims of discrimination without accessible legal remedies. Recent Supreme Court decisions have diminished the efficacy of landmark anti-discrimination legislation such as Title VI and VII of the 1964 Civil Rights Act. These rollbacks are in clear violation of the Convention for erecting insurmountable procedural barriers for victims in court. If states and private actors cannot be sued when they discriminate based on race, our civil rights lack the federal protections guaranteed by the U.S. Constitution.
16. We believe the Government can reverse its current hostility toward issues of racial justice. A steadfast commitment at the federal level to applying innovative legal remedies and legislative tools will help to end all remaining vestiges of racial discrimination in accordance with CERD.
C. 9/11 AND HURRICANE KATRINA: ASSESSING CERD COMPLIANCE
17. Since the 2000 Report, two watershed events have occurred in the U.S. that have fundamentally altered the way we look at race: the terrorist attacks on September 11, 2001, and the tragedy of hurricane Katrina in August 2005. Whereas Katrina highlighted many pre-existing race and class divisions in the public mind, 9/11 opened the door to codifying a whole new demographic and transnational dimension of American racism. Each presented a window of opportunity for the government to aggressively mobilize a nationwide effort to combat patterns of racial discrimination, old and new; but the government fundamentally failed on both accounts.
9/11: Conflating Immigration and Terrorism
18. The U.S. identifies two major developments since 2000 that have slowed progress to end racial discrimination: 1) a post-9/11 increase in hate crimes against people perceived to be Muslim or of Arab, Middle Eastern, or South Asian descent, and 2) an influx in immigration. Rather than combat discrimination against these targeted groups, however, the U.S. has drawn political linkages between immigrants and a perceived ongoing threat of terrorism, which has allowed it to encroach on their civil and human rights under the guise of preserving homeland security.
19. The Convention requires that the fight against terrorism "not discriminate, in purpose or effect" and that "non-citizens are not subjected to racial or ethnic profiling." After September 11, however, violence and racial profiling increased exponentially against citizens, immigrants, and visitors of Middle Eastern and South Asian descent, as well as those believed to be Muslim, such as Sikhs. Reported anti-Muslim hate crimes increased 1700 percent from 2000 to 2001.
20. Immigrants have historically strengthened our nation's fabric. Today, more than one in five U.S. residents is either foreign-born or born to immigrant parents. Nevertheless, the government has yielded to post-9/11 nativist rhetoric and anti-immigrant violence. The federal government now severely limits immigrants' right to challenge the basis for their detention, and it "discriminates against them in prisons, detains them for longer periods, and provides them no right to counsel." A vast array of regulations has also been enacted in recent years that make entry into the U.S. more difficult and limit the ability of those already in the country to remain.
21. Ironically, at a time when the U.S. is aggressively promoting democracy abroad, it is surreptitiously undermining it at home. Since 9/11, the administration has undertaken a series of low-visibility actions through regulation, litigation, and budgetary policy that amount to a pattern of hostility toward core civil rights laws and the ideal of non-discrimination.
Hurricane Katrina: Conflating Race and Class
22. When hurricane Katrina struck the Gulf Coast in August 2005, it precipitated the worst ecological disaster in recorded U.S. history. After destroying the Mississippi coastline, the storm wrought unprecedented havoc when the levees broke in New Orleans, Louisiana, a city that was two-thirds African American. News of the sluggish federal response quickly became widespread public knowledge. Katrina had unearthed deeply entrenched, albeit overlooked, issues of race and poverty in New Orleans and elevated them to the national stage.
23. Initially, there was a renewed sense that the U.S. would respond to Katrina by providing federal assistance for the poor not seen since Roosevelt's New Deal or Johnson's Great Society. In a matter of weeks, however, Katrina became a quickly forgotten story and a politically inconvenient reality. Despite the ongoing racial impact of this tragedy, the U.S. references Katrina only once in its Report, and reduces its profound impact on New Orleans communities of color to issues of class rather than race, thereby circumventing its CERD obligations.
24. Instead of capitalizing on abundant opportunities to work with affected communities to end the race and class disparities exacerbated by Katrina, the government has displayed unyielding indifference. Although authorities have adopted few policies that explicitly discriminate, the discriminatory impact of post-Katrina policy is still felt by those whose rights it violates. The federal response to Katrina has been identified within the international community as a flagrant violation of international law. The UN Human Rights Committee (HRC) so noted in 2006 after reviewing U.S. compliance with the International Covenant on Civil and Political Rights. It is regrettable that, given the great "test of the American racial unconscious" that was Katrina, the government continues to bypass confronting the racial implications head on.
25. The remaining sections of this report further explore the patterns of hostility toward domestic civil rights enforcement that we highlight in this discussion of 9/11 and Katrina. It is our hope that situating these events within a larger political context will afford the Committee the most comprehensive understanding of how de jure and de facto racial discrimination continue to operate in the U.S. with respect to the following areas of public policy: criminal justice, public and higher education, fair housing, employment and labor practices, and access to voting.
