Committee on the Elimination of Racial Discrimination (CERD) Report PDF version PERIODIC REPORT OF THE UNITED STATES OF AMERICA TO THE U. N. COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION CONCERNING THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION APRIL 2007 PERIODIC REPORT OF THE UNITED STATES TO THE U.N. COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION CONTENTS Introduction I. GENERAL A. Background B. Land and People C. General Political Structure D. General Legal Framework E. Information and Publicity F. Factors Affecting Implementation II. INFORMATION RELATING TO ARTICLES 2 TO 7 OF THE CONVENTION Article 2 A. Information on the legislative, judicial, administrative or other measures that give effect to the provisions of article 2, paragraph 1 B. Information on the special and concrete measures taken in the social, economic, cultural and other fields, in accordance with Article 2, paragraph 2 Article 3 Article 4 A. Information on the legislative, judicial, administrative or other measures that give effect to the provisions of article 4 B. Information on appropriate measures taken to give effect to General Recommendations I of 1972, VII of 1985, and XV of 1993 C. Information in response to Decision 3 (VII) adopted by the Committee on 4 May 1973 Article 5 Information on the legislative, judicial administrative or other measures that give effect to article 5, taking into consideration General Recommendations XX and XXII A. The right to equal treatment before the tribunals and all other organs administering justice B. The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by an individual group or institution C. Political rights – Information on the means for guaranteeing these rights, and on their enjoyment in practice D. Other civil rights E. Economic, social, and cultural rights Article 6 A. Information on the legislative, judicial, administrative or other measures that give effect to the provisions of article 6, in particular measures taken to assure effective protection and remedies through competent national tribunals and other State institutions B. Measures taken to assure everyone the right to seek from such tribunals just and adequate reparation or satisfaction for any damage C. Information on the practice and decisions of courts and other judicial and administrative organs D. Information in connection with General Recommendation XXVI Article 7 Conclusion Committee Comments and Recommendations ANNEX I – Examples of State Civil Rights Programs ANNEX II – Background on Matter Raised by Certain Western Shoshone Descendants ANNEX III – Domestic Laws PERIODIC REPORT OF THE UNITED STATES TO THE U.N. COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION Introduction 1. The Government of the United States of America welcomes the opportunity to report to the Committee on the Elimination of Racial Discrimination on measures giving effect to its undertakings under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), pursuant to article 9 thereof. This document constitutes the fourth, fifth, and sixth periodic reports of the United States. Its organization follows the General Guidelines regarding the form and contents of periodic reports to be submitted by States parties, adopted by the Committee in August 2000 (CERD/C/70/Rev.5) and the guidelines for Initial Parts of State Party Reports (“Core Documents”) (HRI/GEN/2/Rev 3) of 8 May 2006. 2. This report was 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 relevant departments and agencies of the federal government and of the states. Contributions were also solicited and received from interested members of the numerous non-governmental organizations and other public interest groups active in the area of civil rights, civil liberties, and human rights in the United States. 3. The United States submitted its initial, second, and third periodic reports as a single document to the Committee on the Elimination of Racial Discrimination in September 2000, hereinafter “Initial U.S. Report” or “Initial Report.” A copy can be viewed at http://www.state.gov/. The United States made its oral presentation to the Committee on August 3 and 6, 2001. Accordingly, the purpose of this fourth, fifth, and sixth periodic report is to provide an update of relevant information since the submission of the Initial Report. 4. The legal and policy framework through which the United States gives effect to its Convention undertakings has not changed dramatically since the Initial Report. As described in that Report, the United States Constitution; the constitutions of the various states and territories; and federal, state, and territorial law and practice provide strong and effective protections against discrimination on the basis of race, color, ethnicity, and national origin in all fields of public endeavor and with regard to substantial private conduct as well. These protections, as administered through executive action and the judicial system, continue to apply. PART I. GENERAL A. Background 5. The information provided in this report supplements that provided in the Initial U.S. Report filed in 2000 (CERD/C/351/Add.1). It also supplements the information provided by the U.S. delegation at the meetings of the Committee, which discussed the Initial U.S. Report on August 3 and 6, 2001 (CERD/C/SR/1474, 1475, 1476). The information provided herein takes into account the concluding observations of the Committee (CERD/A/56/18, paragraphs 380-407), published on August 14, 2001, as well as relevant general Committee recommendations and other Committee actions. 6. In this consolidated report, the United States has sought to respond to the Committee’s concerns as fully as possible. In this regard, the United States notes the discussion of U.S. reservations, understandings, and declarations to the Convention contained in paragraphs 145 through 173 of the Initial U.S. Report. The United States maintains its position with regard to these reservations, understandings, and declarations, and with respect to other issues as discussed in this report. B. Land and People 7. Neither the land area nor the basic federal-state organization of the United States has changed since submission of the Initial U.S. Report in 2000. Nor has there been change in the relationship between the United States and the outlying areas under U.S. jurisdiction – Puerto Rico, the Virgin Islands, American Samoa, Guam, the Northern Mariana Islands, and several very small islands. 1. Update of General Census Data 8. The population of the United States, which was 281.4 million at the time of the 2000 census, was estimated to be 296.4 million in July 1, 2005 – an increase of approximately 5.3 percent. By the year 2010, the population is projected to be 308.9 million – an increase of approximately 9.8 percent from 2000; and by 2050, the population is projected to have increased by 49.2 percent from the 2000 figure, to 419.9 million. 9. The U.S. is a multi-racial, multi-ethnic, and multi-cultural society in which racial and ethnic diversity is ever increasing. Virtually every national, racial, ethnic, cultural, and religious group in the world is represented in the U.S. population. As described in the Initial U.S. Report, the racial and ethnic categories used since 1997 in the U.S. census are: White; Black or African American; American Indian and Alaska Native (AIAN); Asian; and Native Hawaiian and Other Pacific Islander (NHPI). Members of these racial categories are also classified separately as belonging to one of two ethnic categories: Hispanic or Latino origin, or non-Hispanic or Latino origin.[1] 10. In the 2000 census, 97.6 percent of all respondents reported only one race. The group reporting White alone accounted for 75 percent of the population, down from about 80 percent in 1990. The Black or African American alone population represented just over 12 percent of the total, approximately the same as in 1990. Just under 1 percent of all respondents indicated American Indian and Alaska Native only, also approximately the same as in 1990. About 4 percent indicated Asian alone, up from about 3 percent in 1990. The smallest racial group was the Native Hawaiian and Other Pacific Islander alone population, representing 0.1 percent of the total. The remainder of the “one race” respondents – 5.5 percent of all respondents – indicated only the “some other race alone” category, which consisted predominately of persons of Hispanic origin. This percentage was up from approximately 4 percent in 1990. Two and fourth tenths of a percent of all respondents reported two or more races, and 0.02 percent reported four or more races. 11. Looking at ethnicity, although the U.S. population remains primarily White non-Hispanic, the proportion of the population falling into that category is decreasing. Census projections from March, 2004 show that the White non-Hispanic portion of the population declined from 75.7 percent in 1990 to 69.4 percent in 2000, and is projected to decline further to 65.1 percent by 2010 and to 50.1 percent by 2050. Although the number of White non-Hispanic persons in the United States is projected to grow by 2.8 percent from 2000 to 2010, the growth rate for this group is projected to be much lower than the growth rates for other racial and ethnic categories. For example, during the 2000 to 2010 period, the Hispanic (of any race) population is projected to grow by 34.1 percent, the African American population to grow by 12.9 percent, the Asian population to grow by 33.3 percent, and the other races category (American Indian and Alaska Native alone, Native Hawaiian and Other Pacific Islander alone, and two or more races) to grow by 30.7 percent.In addition, in 2000 1.2 million people reported Arab ancestry, up from 610,000 in 1980. This represents a 41 percent rate of growth during the 1980s and a 38 percent growth in the 1990s.The table below contains census data on the projected population of the United States by race and Hispanic origin from 2000 to 2050.
1/ Includes American Indian and Alaska Native alone, Native Hawaiian and Other Pacific Islander alone, and Two or More Races Source: U.S. Census Bureau, 2004, "U.S. Interim Projections by Age, Sex, Race, and Hispanic Origin," http://www.census.gov/ipc/www/usinterimproj/. 12. The distribution of the U.S. population by urban vs. rural residence and region of the country varied considerably by race and ethnicity in 2000. African Americans, Hispanics, and Asian Americans were more likely to live in urban areas (defined as areas with populations of 50,000 or more) than were non-Hispanic Whites. For example, in 2000, although African Americans alone represented only 12.3 percent of the population overall, they constituted 14.6 percent of the persons living in urban areas. Likewise, although Hispanics made up only 12.5 percent of the population overall, they represented 15.5 percent of urban inhabitants. Asian Americans alone represented 5 percent of urban inhabitants, compared to only 3.6 percent of the population overall. By contrast, non-Hispanic Whites composed 62.7 percent of urban dwellers compared to 69.1 percent of the population overall. 13. Of the total population in 2000, 19 percent lived in the Northeast; 23 percent in the Midwest; 36 percent in the South; and 22 percent in the West. However, over half of the African American population (54 percent) lived in the South,including 54.8 percent of those indicating African American alone, and 53.6 percent of the African American alone or in combination population. Other minority groups were concentrated in the West, including 43 percent of American Indians and Alaska Natives alone or in combination; 49 percent of Asians alone or in combination; 73 percent of Native Hawaiian and Other Pacific Islanders alone or in combination; and 43.5 percent of Hispanics. 14. According to the U.S. Census American Community Survey (ACS), in 2004 the foreign-born population was estimated to be 34.3 million (12 percent of the total U.S. household population). This represented an increase of 73 percent from 1990. The foreign-born population was located throughout the United States. 15. Within the foreign-born population, 42 percent were naturalized U.S. citizens. Of the foreign-born population, about one-in-five had entered the United States since 2000. The foreign-born population comes to the United States from throughout the world: 54.8 percent were born in the Americas (9.2 percent in the Caribbean, 36.3 percent in Central America, 6.7 percent in South America, and 2.4 percent in North America); 27 percent in Asia; 14.3 percent in Europe; 3.3 percent in Africa; and 0.6 percent in Oceania. 16. Although direct estimates of the unauthorized population are not available, recent efforts have yielded estimates of a residual population that includes unauthorized as well as “quasi-legal” migrants – persons who are legally present in the United States, but who have not obtained legal permanent resident (LPR) status. This residual foreign-born population was estimated to be about 3.8 million in 1990 and about 8.7 million in 2000. Of the residual foreign born population, about 27 percent were from Mexico in 1990 and about 47 percent were from Mexico in 2000. 17. Although English is the predominant language of the United States, in 2004 approximately 50 million (19 percent) of the 266 million people aged 5 and above spoke a language other than English at home. Thirty-one million people spoke Spanish, and 7.6 million spoke an Asian or Pacific Island language. French and German were the next most common languages spoken. In 2004, twenty-two million people (8.4 percent of the total population) indicated that they did not speak English “very well.” The highest percentages of non-English speakers were found in the states of California, New Mexico, and Texas. 2. Socio-Economic Data on American Indian and Alaska Native Populations and Native Hawaiian and Other Pacific Islander Populations 18. In its comments and recommendations of August 14, 2001, the Committee requested additional socio-economic data on, in particular: (a) the indigenous and Arab American population; and (b) the populations of the States of Alaska and Hawaii. That information is included in this and the following sub-sections. 19. There are 561 federally-recognized American Indian Tribes and Alaska Native tribal governments in the United States. Each tribe generally has its own language, culture, and tribal political and governmental system. Numerous groups are also petitioning through an established federal process to have their tribal status determined. In 2000, 74 percent of all AIAN respondents reported a specific tribal affiliation. The tribal groupings that included 100,000 or more persons were Cherokee, Navajo, Latin American Indian, Choctaw, Sioux, and Chippewa.[2] 20. Of the total United States population, 2.5 million people (0.9 percent) reported AIAN alone, and an additional 1.6 million reported AIAN and at least one other race. The AIAN population grew at a greater rate than the general population from 1990 to 2000, increasing between 26 percent and 110 percent, depending on whether AIAN alone or AIAN in combination with other races was measured. Forty-three percent of this population lived in the west, and 31 percent lived in the south. The AIAN population has a slightly higher ratio of males to females than does the population as a whole: the AIAN alone population had 99.4 males for every 100 females, and the AIAN alone or in combination population had 97.5 males for every 100 females; by contrast, the total population had 96.1 males for every 100 females. The AIAN population also tends to be somewhat younger than the U.S. population: 33.3 percent were under 19, as compared to 25.6 percent for the nation as a whole. 21. In 2000, 874,000 persons (0.3 percent of the population) identified as Native Hawaiian and Other Pacific Islander. Of these, approximately 46 percent said they were NHPI alone, and 54 percent identified as NHPI in combination with other races. The most common combination was NHPI and Asian. The NHPI category includes diverse populations differing in language and culture, with Polynesian, Micronesian, and Melanesian cultural backgrounds. The NHPI category is unique in that it is the only racial category for which the number of respondents reporting two or more races was higher than the number reporting only one race. The NHPI population increased at a rate between 9 and 140 percent from 1990 to 2000, depending on whether NHPI alone or in combination with other races was measured. About three-quarters of this group lived in the west, and over half lived in Hawaii and California (although the 50 percent figure was a reduction from 1990). Native Hawaiian was the largest group, followed by Samoans, and Guamanians or Chamorros. Together these groups constituted 74 percent of the persons reporting NHPI alone, and 71 percent of the NHPI in combination group. 22. The AIAN population tends to have lower school attendance and rates of educational attainment than the U.S. population as a whole, although these rates are improving. The same is also true for the NHPI population, although the NHPI percentages are closer to the national average. For the U.S. population in general, the high school dropout rate (the percentage of 16-19 year olds not enrolled in high school and not high school graduates) was 9.8 percent in 2000, down from 11.2 percent in 1990. By contrast, 16.1 percent of AIAN alone students had dropped out of high school, down from 18.1 percent in 1990. The dropout rate for NHPI alone students was 11 percent for both 2000 and 1990. Likewise, college attendance for both groups was below the national average. Overall, 34 percent of young adults (18 to 24 years old) in the U.S. attended college in 2000, compared to 21 percent for the corresponding AIAN alone population and 30 percent for the corresponding NHPI alone population. These patterns were reflected in overall educational attainment for persons more than 25 years old: Overall Educational Attainment AIAN alone NHPI alone Overall High School Graduate or more 70.9% 78.3% 80.4% Some college or more 41.7% 44.6% 51.8% BA or more 11.5% 13.8% 24.4% Advanced degree 3.9% 4.1% 8.9% (Source: Census 2000: Educational Attainment of the Population 25 Years and Over by Age, Sex, Race, and Hispanic or Latino Origin.) 23. Lower educational attainment, in turn, is reflected in the statistics concerning employment, occupation, and income. The 2004 American Community Survey showed that unemployment was higher for the AIAN alone (14 percent) and NHPI alone (9.9 percent) populations than for the population as a whole (7.2 percent). Those who were working tended to work less in management and more in jobs such as construction and transportation. For example, while 33.6 percent of the overall population worked in management and professional positions, 24.3 percent of the AIAN alone and 23.3 percent of the NHPI alone populations worked in those professions. American Indians and Alaska Natives alone tended to work more heavily in production, transportation and material moving (16.8 percent compared to 14.6 percent overall), construction (12.9 percent compared to 9.4 percent overall), and farming, fishing and forestry (1.3 percent compared to 0.7 percent overall). Likewise, Native Hawaiians and Other Pacific Islanders alone tended to work more heavily in the service professions (20.8 percent compared to 14.9 percent overall) and in transportation and material moving (16.5 percent compared to 14.6 percent overall). 24. In 1999, household income for these two groups was also less than the national average. Compared to a mean household income of $56,644 for the population overall, the mean for the AIAN alone population was $40,135, and that for the NHPI alone group was $53,096. The 2004 American Community Survey showed poverty rates of 24.7 percent for the AIAN population and 18.1 percent for the NHPI group, compared to 13.3 percent overall. For families, the figures were 10.1 percent for all families, contrasted with 20.5 percent for AIAN families and 15.1 percent for NHPI families. Monthly housing costs were among the lowest for AIAN alone inhabitants – $879 compared to the national median of $1,088 for units with a mortgage, and $216 compared to $295 for units without a mortgage. On the other hand, monthly housing costs for NHPI alone members were higher than the national median for units with a mortgage ($1,261) and close to the median for non-mortgage units. This may be because NHPI persons are concentrated in California and Hawaii, two states with very high homeowner costs and housing values. 3. Socio-Economic Data on the Arab-American Population 25. Census 2000 was the first U.S. census to analyze data and produce reports specifically on U.S. persons of Arab ancestry. In 1997, when the U.S. Census Bureau revised the federal standards for classification of race and ethnicity, it noted a lack of consensus on the definition of an Arab ethnic category, and recommended further research. The reports from the 2000 census are contributing to this ongoing research, and are being analyzed in consultation and collaboration with experts in the Arab community. Persons considered as being of Arab ancestry for purposes of the census reports were those who indicated ancestries originating from Arabic-speaking countries or areas of the world – persons who reported being Arab, Egyptian, Iraqi, Jordanian, Lebanese, Middle Eastern, Moroccan, North African, Palestinian, Syrian, etc. As many as two ancestries were tabulated per respondent and, if either fell into the definition of Arab, the person was considered to be “of Arab ancestry” for purposes of analysis. 26. In 2000, 1.2 million people reported Arab ancestry – up from 860,000 in 1990 and 610,000 in 1980. This represents a 41 percent increase in the 1980s and 38 percent increase in the 1990s. Approximately 850,000 of these 1.2 million persons reported only Arab ancestry (either one Arab ancestry or two ancestries both of which were Arab). In addition, more than a quarter of the Arab population (28 percent) also reported a second, non-Arab ancestry; among those, 14.7 percent reported Irish, 13.6 percent Italian, and 13.5 percent German. Lebanese, Syrian, and Egyptian ancestry accounted for about three-fifths of the Arab ancestries reported: 37 percent indicated Lebanese ancestry, 12 percent Syrian, and 12 percent Egyptian. The next highest was Palestinian, at 6 percent. A substantial portion of the Arab population (20 percent) identified themselves as having general Arab ancestries, such as Arab, Arabic, Middle Eastern, or North African. Those who described their ancestry in general terms as “Arab,” “Arabic,” or some other generalized term were most likely to be under 18, while those who made specific designations, such as “Syrian” or “Lebanese,” were more likely to be older. 27. The population indicating solely Arab ancestry also tended to be more heavily male than the U.S. population overall – 57 percent compared to 49 percent population wide. The median age of the male Arab population was 33 years – two years below the median age for the total U.S. population of males, which was 35 years. The female Arab population tended to be most highly concentrated in the 0-9 and 20-35 age ranges. 28. The Arab population was fairly evenly distributed among the four regions of the United States, with about half of that population concentrated in five states: California, Florida, Michigan, New Jersey, and New York. Michigan had the highest proportion of Arabs in its population, and six of the ten largest cities in the United States were among the ten places with the largest Arab populations (New York, Los Angeles, Chicago, Houston, Detroit, and San Diego). 29. The socio-economic data below describe persons of sole Arab ancestry, i.e., those indicating only one Arab ancestry or two ancestries both of which were Arab. Almost half of the residents of sole Arab ancestry (46 percent) were born in the United States or born abroad to U.S. citizen parents, compared to 89 percent for the U.S. as a whole. Of the 54 percent who were foreign born, approximately half had arrived during the 1990s, and over half had become naturalized citizens by 2000 – a higher proportion than for the U.S. foreign-born population as a whole. 30. Persons of sole Arab ancestry tended to be more highly educated than the U.S. population as a whole. More than 40 percent of Arab Americans 25 years of age or older had college degrees or higher, as compared to 24 percent for the population as a whole. Likewise, the proportion of Arabs 25 years or older with high school diplomas or higher (84 percent) exceeds that for the population as a whole (80 percent). The population of sole Arab ancestry also tended to live in married households at a greater rate than the population as a whole – 60 percent compared to 53 percent. Female family householders with no husband present were less common among Arab households than among U.S. households as a whole – 6 percent as compared to 12 percent. Similar relationships are seen when comparing the Arab population as a whole (including those with two ancestries one of which was not Arab) to the total U.S. population. Although 69 percent of Arabs of sole Arab ancestry spoke a language other than English at home, 65 percent of those indicated that they spoke English “very well” – representing 44 percent of overall Arabs aged five and older. 31. Persons of sole Arab ancestry tended to work in management, professional, and related occupations at a higher rate than the population as a whole; approximately 42 percent of Arabs aged 16 and above worked in those occupations, compared with 34 percent for the U.S. overall. Likewise, a higher proportion of persons of sole Arab ancestry tended to work in sales and office occupations than the population as a whole (30 percent compared to 27 percent), while the proportion of the sole Arab population working in construction, extraction, and maintenance jobs was lower (5.4 percent compared to 9.4 percent), as was the proportion working in production, transportation, and material moving (10.7 percent compared to 14.6 percent). Men of Arab descent were more likely, and women less likely, to be in the labor force than their counterparts in the total population. 32. Median earnings for the sole Arab population were also higher than those for the U.S. population overall (for men, $41,700 compared to a national median of $37,100, and for women $31,800 compared to a national median of $27,200). This was also true for Arab families, which had higher median incomes than U.S. families in general ($52,300 compared to $50,000). Nevertheless, a higher percentage of persons of sole Arab ancestry fell into the poverty range (17 percent compared to 12 percent). Poverty rates were highest among those younger than 18 years. 4. Socio-Economic Data on the Populations of the States of Alaska and Hawaii 33. Alaska is the largest state in the United States in land area, but has one of the smallest populations – only 626,932 persons in 2000. In 2000, its population was more heavily male and slightly younger than the national average. For persons listing one race, Alaska’s population was much more heavily American Indian and Alaska Native than the national average – 15.6 percent as opposed to 0.09 percent. By contrast, its African American alone population was smaller (3.5 percent as opposed to 12.3 percent), and its White population was also smaller (69.3 percent as opposed to 75.1 percent) than the national average. Its Asian population was slightly above the national average (4 percent as opposed to 3.6 percent). The percentage of the Alaska population listing Hispanic ethnicity was considerably below the national average (4.1 percent as opposed to 12.5 percent). Persons listing two or more races were also elevated in Alaska – 5.4 percent as opposed to 2.4 percent nationally. Alaska had a considerably lower percentage of foreign born residents than the nation as a whole (5.9 percent as opposed to 11.1 percent nationally). 34. Alaska’s population was somewhat more educated than the national average. Of the population 25 years and over, 88.3 percent of Alaskans were high school graduates or higher, contrasted with 80.4 percent nationally; and 24.7 percent of Alaskans had a college degree or higher, compared to 24.4 percent nationally. In Alaska, 14.3 percent of the population spoke a language other than English at home, as compared to 17.9 percent of the population in general. 35. A higher proportion of Alaska’s 16 years and older population was in the workforce than was true nationally (71.3 percent as opposed to 63.9 percent). Likewise, fewer Alaskan families and individuals fell below the poverty level than was true nationally (6.7 percent compared to 9.2 percent for families, and 9.4 percent compared to 12.4 percent for individuals). 36. By contrast, the population of Hawaii in 2000 was 1,211,537, about twice that of Alaska. Also in contrast to Alaska, Hawaii’s population was slightly older than the national average; for example, 13.3 percent of Hawaiians were 65 years and older, compared to 12.4 percent nationally. Hawaii was closer to the national average in its male-female ratio – 50.2 percent were male (compared to 49.1 percent nationally), and 49.8 percent were female (compared to 50.9 percent nationally). An unusually large proportion of Hawaiians described themselves as being of two or more races (21.4 percent compared to 2.4 percent nationally). Of those indicating only one race, Native Hawaiian and Other Pacific Islanders constituted 9.4 percent of the population, as opposed to 0.1 percent nationally. Asians also constituted an extremely high percentage of the population – 41.6 percent as opposed to 3.6 percent nationally. Conversely, the proportion of Whites was considerably lower – 24.3 percent, as compared to 75.1 percent nationally. In addition, African Americans and persons of Hispanic origin were less prevalent in Hawaii than in the nation as a whole. African Americans alone constituted only 1.8 percent of the population, compared to 12.3 percent nationally, while persons of Hispanic ethnicity made up only 7.2 percent of the Hawaiian population, compared to 12.5 percent nationally. 37. Like Alaska, the people of Hawaii tended to have higher levels of education than the national average. Eighty four point six percent of Hawaiians age 25 and older were high school graduates or higher, compared to 80.4 percent of the U.S. population overall. Twenty-six point two percent of Hawaiians had college degrees or higher, compared to 24.4 percent nationally. A considerably greater proportion of Hawaiians said that they spoke a language other than English at home – 26.6 percent compared to 17.9 percent nationally. 38. The proportion of Hawaiians in the labor force was slightly higher than the national average (64.5 percent compared to 63.9 percent), and Hawaiian individuals and families tended to fall below the poverty level at a lower rate than the total U.S. population (7.6 percent compared to 9.2 percent for families, and 10.7 percent compared to 12.4 percent for individuals). C. General Political Structure 39. Since the Initial U.S. Report in 2000, there have been no changes in the political structure of the United States, or its basic relationships with United States territories, or with the AIAN or NHPI populations.The Office of Hawaiian Relations within the Department of the Interior was established in the fall of 2005 to “preserve and promote Hawaii’s natural and historic resources and the Native Hawaiian culture.” 40. The issue of the federal government relationship with Native Hawaiians continues to be under discussion. The Initial U.S. Report noted that, in response to a U.S. Supreme Court case, Rice v. Cayetano, 528 U.S. 495 (2000), which cast doubt on the authority of Congress to legislate in a manner that grants Native Hawaiian preferences, the Departments of Interior and Justice were in the process of preparing a report on a reconciliation process between the federal government and Native Hawaiians.The final report, which encompassed the results of meetings and consultations with the Native Hawaiian community, was issued in October 2000. Based on meetings and consultations with the Native Hawaiian community, the report called for the federal government to honor the unique relationships with Native Hawaiians and to respond to their needs for more local control within the framework of Federal law. A version of the Native Hawaiian Government Reorganization Act has been introduced in every Congress since the 106th (in 2000). When the Native Hawaiian Government Reorganization Act of 2005 was introduced in both chambers of the U.S. Congress, it would have formed a governing entity of and for Native Hawaiians, and extended to it federal recognition similar to the recognition extended to American Indian tribes. Specifically, it would have authorized the U.S. Government to enter into negotiations with this governing entity to address specified matters. The bill was thoroughly debated in a number of public forums, including the U.S. Civil Rights Commission, but failed to reach the floor for a vote in the United States Senate in 2005 or 2006. The Administration opposed the bill on the ground that it would “divide people by their race” and would raise serious and difficult constitutional questions regarding the permissibility of “race-based qualifications for participation in government entities and programs.” The Administration also questioned the authority of Congress to grant tribal status to Native Hawaiians. The U.S. Civil Rights Commission advised that this bill risked “further subdivid[ing] the American people into discrete subgroups accorded varying degrees of privilege.” D. General Legal Framework 41. The basic Constitutional and legal framework through which U.S. obligations under the Convention are implemented remains the same. The Constitution provides for equal protection of the laws and establishes a carefully balanced governmental structure to administer those protections. Among other factors: • Under the Fifth and Fourteenth Amendments, all persons are equal before the law and are equally entitled to constitutional protection. All states are equal, and none may receive special treatment from the federal government. Within the limits of the Constitution, each state must give “full faith and credit” to the public acts, records, and judicial proceedings of every other state. State governments, like the federal government, must be republican in form, with final authority resting with the people; • The Constitution stands above all other laws, executive acts, and regulations, including treaties; • Powers not granted to the federal government are reserved to the states or the people. 42. In addition to the civil rights protections of the federal Constitution, laws, and courts – state constitutions, laws, and courts play an important role in civil rights protections. In this regard, state constitutions and laws must, at a minimum, meet the basic guarantees of the U.S. Constitution. Moreover, in keeping with the federal system of government, in many cases state laws actually afford their citizens greater protections than the federal Constitution requires. See, e.g., Locke v. Davey, 540 U.S. 712, 724 n. 8 (2004) (noting that, “at least in some respects,” Washington State’s constitution provides greater protections than the Federal Free Exercise Clause). 43. Day-to-day administration and enforcement of federal laws rests in the hands of various executive departments and independent agencies. Since 2000, there have been only a few changes in the division of responsibilities described in that Report. Except for the changes noted in this report, the governmental structure in place to deal with discrimination remains basically as it was described in 2000. 44. Department of Homeland Security. As a result of the events of 11 September 2001 (hereinafter 9/11), Congress created a new Department of Homeland Security (DHS) in 2003. This Department combines a number of other departments, agencies, and portions of departments, such as the Coast Guard, the Transportation Security Administration, the Federal Emergency Management Agency, and the former Immigration and Naturalization Service. Within DHS, Congress established an Office for Civil Rights and Civil Liberties, led by the DHS Officer for Civil Rights and Civil Liberties who reports directly to the Secretary of Homeland Security. The Office is charged with investigating allegations of abuses of civil rights, civil liberties, and discrimination on the basis of race, ethnicity, and religion by employees or officials of the Department of Homeland Security. In addition, it assists the senior leadership in developing policies and initiatives that are mindful of fundamental rights and liberties and provides leadership to DHS’s Equal Employment Opportunity Program. The Office leads the Department’s civic engagement efforts and conducts outreach to non-governmental organizations and others, including the Arab American and Muslim American communities. 45. As part of the creation of the Department of Homeland Security, the Immigration and Naturalization Service (INS) ceased to exist as an independent agency within the Department of Justice. The functions of the former INS were transferred to three bureaus of the new DHS: U.S. Citizenship and Immigration Services (CIS),U.S. Immigration and Customs Enforcement (ICE), and U.S. Customs and Border Protection (CBP). The Executive Office for Immigration Review and Board of Immigration Appeals, however, remained within the Department of Justice. See Homeland Security Act of 2002, 116 Stat. 2135, 2178, 2192, Nov. 25, 2002. 46. Department of Defense. Within the Department of Defense, the former Deputy Assistant Secretary for Equal Opportunity has now been changed to a Deputy Under Secretary for Equal Opportunity. This position remains responsible for implementing and monitoring the Department’s civilian and military equal opportunity/affirmative action plan goals and objectives. The Department of Defense has numerous policies and programs designed to ensure equal opportunity in the military. The nature and scope of these programs are generally as described in the Initial U.S. report. 47. Other Agencies. Since 2000, several other agencies have also created new bureaus, offices, or training entities to work on issues related to racial and ethnic discrimination or to work specifically with various racial or ethnic groups. For example, the Department of the Interior (DOI) established the Office of Hawaiian Relations in 2005. In 2006, DOI set up a new bureau and office specifically to assist American Indians and Alaska Natives. DOI established: (1) the Bureau of Indian Education to improve academic achievement of Indian students served in the 184 schools on 63 Indian reservations in 23 states; and (2) the Office of Indian Energy and Economic Development, to bring new jobs, businesses, and funds to American Indian and Native Alaska communities. The Department of Housing and Urban Development (HUD) also formed several offices to address problems of discrimination in housing: (1) the Office of Systemic Investigations (OSI) to investigate cases with significant impact on population groups or geographic locations; (2) the Office of Education and Outreach (OEO) to increase public awareness of federal fair housing laws and HUD’s role in enforcing them; and (3) the National Fair Housing Training Academy to train housing discrimination investigators at local, state, and federal levels. The Agriculture Department also established the Office of Minority and Socially Disadvantaged Farmers. Finally, the United States Information Agency – which handles outreach to other nations – has been moved into the Department of State. E. Information and Publicity 48. Information about human rights is readily available in the United States. As a general matter, persons are well informed about their civil and political rights, including the rights of equal protection, due process, and non-discrimination. The scope and meaning of – and issues concerning 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. 49. The expansion of internet services and the ever-increasing availability of internet access in the years since 2000 have made information concerning human rights and racial and ethnic discrimination even more readily accessible to the U.S. public. Virtually every federal and state agency has a website on which information about the agency structure and programs – including those of agency offices of civil rights – can be found. Many of these websites include relevant information in languages other than English, which increases dissemination both to persons with limited English proficiency within the U.S. as well as to persons outside the U.S. who may be interested in the civil rights protections that the U.S. affords its citizens and residents. 50.Information concerning the work of the UN Committee on Elimination of Racial Discrimination is likewise readily available on the internet in the United States, as are all U.S. reports to the Committee. As part of our public outreach, this periodic report will be published and made available to the public through the U.S. Government Printing Office and the depositary library system. Copies of the report and the Convention will also be widely distributed within the executive branch of the U.S. Government, to federal judicial authorities, to relevant members of Congress and their staffs, and to relevant state officials, state and local bar associations, and non-government human rights organizations. The report and the Convention will also be available on the Department of State website at http://www.state.gov. 51. Specific examples of publicity and outreach programs undertaken since the Initial U.S. Report are described below in the discussion of article 5.
F. Factors Affecting Implementation 52. As noted in the Initial U.S. Report, the United States has made significant progress in the improvement of race relations over the past half-century. Due in part to the extensive constitutional and legislative framework that provides for effective civil rights protections, overt discrimination is far less pervasive than it was in the early years of the second half of the Twentieth Century. As the United States continues to become an increasingly multi-ethnic, multi-racial, and multi-cultural society, many racial and ethnic minorities have made strides in civic participation, employment, education, and other areas. 53. Nonetheless, significant challenges still exist. Subtle,and in some cases overt,forms of discrimination against minority individuals and groups continue to plague American society, reflecting attitudes that persist from a legacy of segregation, ignorant stereotyping, and disparities in opportunity and achievement. Such problems are compounded by factors such as inadequate understanding by the public of the problem of racial discrimination, lack of awareness of the government-funded programs and activities designed to address it, lack of resources for enforcement, and other factors. 54. In addition, two subjects of concern have been particularly acute in the years since 2000. The first involves the increase in bias crimes and related discriminatory actions against persons perceived to be Muslim, or of Arab, Middle Eastern, or South Asian descent, after the terrorist attacks of 9/11. The second involves the impacts of the changing demographic caused by high rates of immigration into the United States – both legal and illegal. The continuing legacies described above, in addition to these more recent issues, create on-going challenges for the institutions in the United States that are charged with the elimination of discrimination. Thus, despite significant progress, numerous challenges still exist, and the United States recognizes that a great deal of work remains to be done. PART II. INFORMATION RELATING TO ARTICLES 2 to 7 OF THE CONVENTION 55. The United States is a vibrant, multi-racial, multi-ethnic, and multi-cultural democracy in which individuals have the right to be protected against discrimination based, inter alia, on race, color, and national origin in virtually every aspect of social and economic life. The U.S. Constitution and federal law prohibit discrimination in a broad array of areas, including education, employment, public accommodation, transportation, voting, housing and mortgage credit access, as well as in the military, and in programs receiving federal financial assistance. In addition, nondiscrimination obligations are imposed on federal contractors and subcontractors by Executive Order.The federal government has established a wide-ranging set of enforcement procedures to administer these laws and Executive Orders, with the U.S. Department of Justice exercising a major coordination and leadership role on most critical enforcement issues. State and local governments also have complementary legislation and enforcement mechanisms to further these goals. At both the federal and state levels, enforcement agencies have worked, and continue to work, to improve enforcement of civil rights laws and to promote education, training, and technical assistance. 56. As noted in the Initial U.S. Report, although the definition used in article 1 (1) of the Convention contains two specific terms (“descent” and “ethnic origin”) not typically used in U.S. federal civil rights legislation and practice, no indication exists in the negotiating history of the Convention that those terms encompass characteristics not already subsumed in the terms “race,” “color,” and “national origin” as those 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. 57. The United States collects its census data in a manner that allows analysis and assessment by racial, ethnic, gender, and other characteristics. In addition, in the 2000 census, information was also collected on Americans of Arab ancestry. Census information relevant to this periodic report was presented in Part I and will be referenced, as appropriate, in this section. Article 2 A. Information on the legislative, judicial, administrative, or other measures that give effect to the provisions of article 2, paragraph 1, of the Convention. 1. Measures taken to give effect to the undertaking to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation 58. As required by article 2 (1) (a), racial discrimination by the government is prohibited throughout the United States. The Fifth, Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution guarantee that no public authority may engage in any 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. U.S. law extends this prohibition to private organizations, institutions, and employers under many circumstances.Examples of enforcement actions against both public and private institutions are set forth in subsection 2 below and throughout this report. 2. Measures taken to give effect to the undertaking not to sponsor, defend or support racial discrimination by any persons or organizations 59. As required by article 2 (1) (b), the U.S. Government does not sponsor, defend, or support discrimination. The U.S. Constitution prohibits discrimination on the basis of race at every level of government – federal, state, and local. A number of federal statutes, including the Civil Rights Act of 1964, prohibit discrimination by state or local governments; private entities in the areas of employment, housing, transportation, and public accommodation; and private entities that receive federal financial assistance. The federal government is actively engaged in the enforcement of anti-discrimination statutes against public and private entities in the areas of employment, housing and housing finance, access to public accommodations, and education. In addition, most states and some localities also have laws prohibiting similar types of activity, and in many cases state and federal authorities have entered into work sharing arrangements to ensure effective handling of cases where state and federal jurisdiction overlap. Examples of federal employment, housing, and education cases, as well as state enforcement in these areas, are set forth in this section. Numerous other examples in areas such as public accommodations, police conduct, prisoner rights, voting rights, hate crimes, and others are described in other sections of the report.
Examples of Enforcement Actions: Employment 60. The Equal Employment Opportunity Commission (EEOC) is charged with enforcing federal civil rights laws with regard to discrimination in public and private sector workplaces. The Department of Justice also brings employment cases, and the Department of Labor’s Office of Federal Contract Compliance Programs ensures that federal contractors and subcontractors do not discriminate in employment. Since 2000, the EEOC has received and handled approximately 80,000 charges a year, with well over that number in 2003. This is approximately the same annual rate as in the 1990s, with the exception of 1995, when the number was unusually elevated. In 2006, however, the agency received only 75,768 charges. These charges included 113,765 instances of discrimination in private and public sector workplaces. In 2006, 62 percent of all charges alleged race or gender discrimination, or retaliation in violation of Title VII of the Civil Rights Act of 1964. The Commission filed 371 lawsuits, recovered $44.3 million through litigation, plus $229.9 million in settlement, conciliation, and other closures, bringing the total to $274.2 million. The amounts obtained through settlement in fiscal year 2006 included $61.4 million in settlement, conciliation, and other closures of 5,232 race discrimination charges; $21.2 million in settlement, conciliation, and other closures of 1,666 national origin discrimination charges; and $5.7 million in settlement, conciliation, and other closures of 499 religion discrimination charges. Settlements and court decisions also included non-monetary elements to assist in ensuring that offending behavior does not recur. 61. Examples of cases brought since 2000 by the EEOC, the Department of Justice Civil Rights Division, and the Department of Labor Office of Federal Contract Compliance Programs follow. Others are described in other sections of the report. Enforcement cases that go to court often take a number of years from beginning to end. Thus, cases brought since 2000 that have not been settled may still have been proceeding through the courts at the time this report was written.
62. In addition to filing individual claims, the Justice Department Civil Rights Division is also charged with authority to investigate and challenge patterns or practices of employment discrimination. Such suits are complex, time consuming, and resource-intensive. As a result, the Division has historically managed only one case per year. In 2004, however, the Department prevailed in one major pattern or practice trial and filed four additional lawsuits. It filed two in 2005, and had filed three in 2006 as of October.
63. The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) ensures that employers doing business with the federal government comply with the laws and regulations requiring non-discrimination in employment. The program enforces its mandate by detecting and remedying systemic discrimination and by providing compliance assistance to employers. In fiscal year 2005 (October 1, 2004 to September 30, 2005), OFCCP recovered a record $45,156,462 for 14,761 American workers who had been subjected to unlawful discrimination. Of that recovery, 97 percent was collected in cases of systemic discrimination, defined as those involving a significant number of workers or applicants subjected to discrimination because of an unlawful employment practice or policy. The fiscal year 2005 results represent a 42 percent increase over the recoveries in fiscal year 2000 and a 56 percent increase over fiscal year 2001. Examples of these cases follow:
Examples of Enforcement Actions: Fair Housing and Lending
64. Ensuring equal opportunity in housing is one of the strategic goals of the U.S. Department of Housing and Urban Development (HUD). HUD’s Office of Fair Housing and Equal Opportunity (FHEO) carries out this strategic goal by administering laws that prohibit discrimination on the bases of race, color, religion, sex, national origin, disability, and familial status. In addition, FHEO educates lenders, housing providers, developers, architects, home-seekers, landlords, and tenants about their rights and obligations under the law. Working with national, state, and local partners – as well as the private and nonprofit sectors – FHEO is involved in a cooperative effort to increase access to the nation’s housing stock so that more Americans can obtain housing of their choice. The laws implemented by FHEO include the Fair Housing Act, which is Title VIII of the Civil Rights Act of 1968, as amended in 1988; and other civil rights laws, including Title VI of the Civil Rights Act of 1964, Section 109 of the Housing and Community Development Act of 1974, and Section 3 of the Housing and Urban Development Act of 1968. 65. Since the initial U.S. report, HUD’s Office of Policy Development and Research has published several volumes estimating the national level of racial and ethnic housing discrimination against African Americans, Hispanics, and Asian Americans and Pacific Islanders. In addition, statewide estimates were drawn up for Native Americans and Alaska Natives in three states. The methodology involved matched pairs of testers who sought housing in the sales or rental market; one tester was a non-Hispanic White, and the second was of a minority race or ethnicity. The reports showed that discrimination in the sales market had declined significantly in the decade prior to the report’s issuance. However, the decline was more modest in the rental market for African Americans, and there was no change at all for Hispanics. The findings also generally indicated that the treatment shown to the non-Hispanic White tester remained more favorable than that shown to the minority tester, further indicting that the problem of housing discrimination persists in many parts of the nation. 66. The HUD Fair Housing Office includes an enforcement arm that receives complaints and investigates cases. In many regions of the U.S., HUD, through FHEO, also funds state or local government fair housing enforcement agencies to receive complaints and to investigate them, as long as the state or local government can show that it enforces a fair housing law that provides rights, remedies, procedures, and opportunities for judicial review that are substantially equivalent to those provided in the Fair Housing Act. By the end of fiscal year 2005, there were 103 such agencies in 37 states and the District of Columbia. In fiscal year 2005, HUD and the 103 state, county, and city Fair Housing Assistance Program agencies that partner with HUD received 9,254 complaints or cases. Of those complaints, 3,472 were based on race and 860 were based on national origin discrimination against Hispanics. Examples of cases investigated and managed by HUD’s Fair Housing Office are set forth below:
67. The Civil Rights Division of the Justice Department is also charged with ensuring non-discriminatory access to housing, public accommodations, and credit. During fiscal year 2006 (October 2005 through September 2006), the Housing Section filed 31 lawsuits, including 19 pattern or practice cases. One of the programs used aggressively by the Civil Rights Division is its Fair Housing Testing Program, in which persons with different characteristics pose as potential tenants seeking to rent apartments in the same facility at approximately the same time. On February 15, 2006, the Attorney General announced a major new civil rights initiative: Operation Home Sweet Home. He made a public commitment that over the next two years the Division would conduct a record-high number of fair housing tests in order to expose housing providers who are discriminating against people trying to rent or buy homes. During fiscal year 2006, the Civil Rights Division increased the number of fair housing tests conducted by 38 percent compared to fiscal year 2005. Examples of recent cases are described here, including a case involving evidence developed by the Fair Housing Testing Program.
68. Lawsuits brought by the Civil Rights Division have not only defended the rights of Americans to obtain housing, but also to obtain the financing necessary to purchase homes. While a lender may legitimately take into account a broad range of factors in considering whether to make a loan, race has no place in determining creditworthiness. “Redlining” is the term employed to describe a lender’s refusal to lend in certain areas based on the race of the area’s residents. In 2006, the Division filed and resolved a major redlining case under the Fair Housing Act and the Equal Credit Opportunity Act (ECOA).
Examples of Enforcement Action: Education
69. The mainstay of the Justice Department Civil Rights Division’s work in the area of education is a substantial docket of open desegregation cases under which school districts remain under court orders. Some of the cases are decades old. Although most of these cases have been inactive for years, each represents an as-of-yet unfilled mandate to root out the vestiges of segregation and return control of constitutionally compliant public school systems to local officials. 70. To promote compliance by school districts, the Division initiates case reviews to monitor issues such as student assignment, faculty assignment and hiring, transportation policies, extracurricular activities, the availability of equitable facilities, and the distribution of resources. In 2004, the Civil Rights Division initiated 44 case reviews – the largest number in any given year. In addition, during that year the Division obtained additional relief through a combination of litigation, consent decrees, and out of court settlements in 23 cases. In 2006, the Division initiated 38 case reviews. Since 2000 the Division has initiated more than 228 reviews, which have resulted in the return of local control in more than 126 school districts.
Enforcement of Anti-Discrimination Laws in the Territories 71. Claims of racial and ethnic discrimination are also actively pursued in U.S. territories. Since 2000, the Virgin Islands has experienced a larger volume of cases than the U.S. territories in the Pacific. Two cases in the courts in the Virgin Islands are: (1) Petersen v. Budget Marine V I, Inc., 2004 WL 3237537 (D. V.I. 2004) in which the plaintiff contends he was let go from his employment and replaced by a White male from the continental United States; and (2) Frorup-Alie v. V. I. Housing Finance Authority, 2004 WL 1092317 (D. V.I. 2004), involving a claim of discrimination based on race (African American) and national origin (native Virgin Islander). The plaintiff claims that the Housing Finance Authority created a hostile working environment in which other employees yelled at her and talked about her in Spanish in her presence. A case involving employment discrimination by the University of Guam is described above. Additionally, the Civil Rights Division of the Department of Justice has prosecuted human trafficking cases and brought suits to protect prisoners’ rights in the territories.
Enforcement of Anti-Discrimination Laws by the States 72. Most states have state civil rights or human rights commissions or offices that administer and enforce state laws prohibiting discrimination in areas such as employment, education, housing, and access to public accommodations. These offices generally investigate complaints and ensure, where appropriate, that charges are filed and cases are heard. They generally also have advisory and educational functions, informing residents of the state about enforcement of their civil rights. The few states that do not have designated civil rights or human rights offices or commissions administer their civil rights laws through their Attorney General’s Offices. Some counties and cities also have commissions to administer their civil rights laws. For example, a complainant in Chicago may have four choices in bringing an employment claim – the federal Equal Employment Opportunity Commission, the Illinois Department of Human Rights, the Cook County Human Rights Commission, or the Chicago City Human Rights Commission. California also has a full system of civil rights agencies. In addition to three state entities – the California Department of Fair Employment and Housing, the California Department of Justice Civil Rights Enforcement Section, and the California Fair Employment and Housing Commission (a quasi-judicial administrative agency that hears cases and is also involved in regulatory, legislative, and outreach activities), complainants can also contact 13 county civil rights commissions and more than 50 city civil rights bodies. For a full discussion of the human rights/civil rights programs in four states (Illinois, New Mexico, Oregon, and South Carolina) with populations of varying racial and ethnic composition, see Annex I to this report. 73. Most state entities have work sharing agreements with the EEOC and the Department of Housing and Urban Development (HUD) to ensure that complainants’ rights are protected under both state and federal law, regardless of where they choose to bring their complaints. Under these agreements, the state civil rights entity and the federal entity (EEOC or HUD) each designate the other as its agent for purpose of receiving and drafting charges. Thus, the state may act as the agent of the EEOC or HUD, receiving, filing, and investigating charges that may fall within federal statutes. Charges can also be transferred from one agency to the other in accordance with the terms of the agreement. For employment cases, state agencies generally adhere to the procedures in the EEOC’s state and local handbook. In the employment area, many state laws apply to a wider range of businesses than are covered by the federal law, which applies only to employers with 15 or more employees. 74. Although the processes for handling discrimination complaints differ from state to state, a typical state civil rights process involves several steps. The first is intake of inquiries and complaints. Second is investigation of complaints. Prior to or during this phase, many states offer mediation of disputes at no cost or minimal cost to complainants in order to attempt to resolve issues prior to a formal hearing process. If mediation is not successful, some states also offer conciliation. Third, if the complaint is not settled by mediation or conciliation, and if investigation indicates a possible violation of the law, the case may go to a formal hearing before a hearing officer, an administrative law judge, or a commissioner. The hearing officer, administrative law judge, or commissioner in turn renders a determination or decision – a decision that in some cases must be approved by the entire commission. Decisions may normally be appealed to an appellate authority – usually a state appellate court. In many cases, they may also be enforced in state court through writ of mandamus (ordering the defendant to take action) or injunction (prohibiting the defendant from taking certain actions). 75. Most states also provide for removal of cases directly to state court or to federal courts or agencies during the investigation process. As noted above, under work sharing agreements, cases that fall within federal jurisdiction are sometimes transferred to the EEOC or HUD for further action. In addition, most states offer complainants the option of taking cases to state or federal court if the cases meet jurisdictional guidelines – in some cases by filing directly with the court, and in other cases by requesting a right to sue letter from the state civil rights entity that is processing the claim. 76. A large number of complaints are received and investigated by state authorities. For example:
Enforcement Against Private Entities: Constitutional Limitations and Reservation
77. As noted in the Initial U.S. Report, the definition of “racial discrimination” under article 1 (1) of the Convention, the obligation imposed 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) and articles 3 and 5 may be read as imposing a requirement on States parties 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. For this reason, the United States indicated through formal reservation that U.S. undertakings are limited by the reach of constitutional and statutory protections under U.S. law as they may exist at any given time: “[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.” That reservation remains in effect, and the specific delineation of current constitutional and statutory protections, as set forth in the Initial U.S. Report, has not changed. 78. Nonetheless, as seen in the enforcement actions described in this report, U.S. law does extend to private conduct in many instances. Basic United States civil rights laws (42 U.S.C. 1981, 1982) have been used to prohibit private actors from engaging in racial discrimination in activities such as the sale or rental of private property, admission to private schools, and access to public facilities. In addition, enforcement against private parties who engage in discrimination in public accommodations and employment may also be pursued under Titles II and VII of the 1964 Civil Rights Act, which are based on the commerce power of Congress.Executive Order 11246 provides a basis for public enforcement actions against federal contractors and subcontractors who engage in employment discrimination. The Fair Housing Act forms the basis for enforcement against private parties in the area of discrimination in housing. Finally, the spending powers of Congress form the basis for Title VI of the 1964 Civil Rights Act, which prohibits discrimination by both public and private institutions that receive federal funds. 79.States also enforce against private entities. For example, under Kentucky law, in addition to enforcing the Kentucky Civil Rights Act, the Kentucky Commission on Human Rights has a statutory role in addressing unlawful discrimination in proprietary schools and private clubs (KRS 165A.360(1) – proprietary schools), (KRS 141.010(11)(d) and (13)(f) – private clubs). In the context of proprietary schools, the Commission has authority to block the licensure of schools that discriminate or tolerate discrimination on the basis of race, color, or creed. In the context of private clubs, the Commission has authority to block the availability of tax deductions for payments to clubs that discriminate or tolerate discrimination based on race, color, religion, national origin, or sex. On November 18, 2004, the Kentucky Supreme Court ruled that the Commission has the power to investigate private social clubs for discriminatory membership practices. Represented by staff counsel and the Office of the Attorney General, the Commission asserted investigative authority over the Pendennis Club of Louisville, the Louisville Country Club, and the Idle Hour Country Club of Lexington. The private clubs had refused to provide their membership records for a determination regarding their racial and gender makeup. The Kentucky Supreme Court’s decision in Commonwealth v. Pendennis Club, Inc., 153 S.W. 3d 784 (Ky. 2004) reversed lower court rulings. 80. A number of cases brought against private entities are set forth in the sections on employment and housing, above. Others are described in other sections of the report.
3. Measures taken to review governmental, national and local policies and to amend, rescind or nullify any laws and regulations that have the effect of creating or perpetuating racial discrimination wherever it exists
81. 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” and to “amend, rescind or nullify any laws and regulations” that have such effects. 82. The United States continues to satisfy these obligations through its ongoing legislative and administrative processes at all levels of government, as well as through court challenges brought by governmental and private litigants. Laws and regulations in the United States are under continuous legislative and administrative revision and judicial review. Executive Review 83. White House. President Bush has renewed several initiatives that involve review of existing laws and policies with the goal of promoting racial and ethnic equality in the areas, inter alia, of education, and economic competitiveness and prosperity. These include the President’s Advisory Commission on Educational Excellence for Hispanic Americans (E.O. 13230, October 12, 2001); the President’s Board of Advisors on Historically Black Colleges and Universities (E.O. 13256, February, 12, 2002); the Executive Order on Tribal Colleges and Universities (E.O. 13270, July 3, 2002); and the White House Initiative on Asian Americans and Pacific Islanders (E.O. 13339, May 15, 2004). President Bush also continued the Interagency Group on Insular Areas (E.O. 13299, May, 12, 2003). These Executive Orders involve review of existing laws and policies and consideration of recommendations for further action. In most cases, the President has appointed advisory committees for this purpose. The Advisory Committee on Educational Excellence for Hispanic Americans has completed its work and made recommendations, which are discussed in the next section. 84. A number of Executive Branch departments have also undergone legal and policy reviews since 2000. 85. Department of Justice. Shortly after 9/11, the Department of Justice Civil Rights Division reviewed and assessed existing laws and practices and spearheaded a special Initiative to Combat Post 9/11 Discriminatory Backlash. This initiative reflected a commitment by the U.S. government to combat violations of civil rights laws against Arab, Muslim, Sikh, and South-Asian Americans by: (1) ensuring that processes were in place for individuals to report violations and that cases were handled expeditiously; (2) implementing proactive measures to identify c | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
