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Rebecca L. Case

excerpted from: Rebecca L. Case, Not Separate but Not Equal: How Should the United States Address Its International Obligations to Eradicate Racial Discrimination in the Public Education System? , 21 Penn State International Law Review 205-226, 215-226 (Fall 2002) (136 Footnotes)

The United States has confirmed its intention, in several international venues, to address racial discrimination and institutional racism existing within the United States' borders. The United States has attended world conferences and signed several treaties expressing the country's aspirations to eradicate racially discriminatory practices in the education system. The promises the United States has made to the international community currently are only aspirations and goals that the country must still address. The story of Tony illustrates how racial discrimination and institutional racism can still affect children's lives in the United States. The treaties and the conference recommendations present a framework that the United States can use to address the discrepancies of the education system.

Considering the enormous consequences of discriminatory acts toward children in school, the remainder of this comment will address the United States' obligations and promises under the CERD, the CAT, the ICCPR, and the Programme of Action from the World Conference on Racism to eliminate the racially discriminatory practices in the American public education system. This comment will acknowledge where the United States has fulfilled their duties under the treaties and will highlight the areas where the United States has not yet satisfied their treaty obligations. Finally, this comment will recommend solutions based on shadow reports, the general comments to the treaty bodies from the United States, the recommendations made by the treaty body members to the United States, recommendations from the "World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance," and other independent sources that address racial discrimination within the American education system.

A. Improvements in United States' Education System

While the CERD, ICCPR, and CAT have different goals, each treaty addresses the need to protect children, regardless of their ethnic origin in the area of education. The "World Conference on Racism Programme of Action" states the need to ensure equal access to a quality education. The CERD requires every child to have a right to an education. The ICCPR states that children have a right to be protected, irrespective of their skin color. The CAT requires all forms of torture to be eliminated; this includes the severe mental suffering that is associated with discrimination. The CAT also requires that all public officials be taught what torture is and how to prevent torturous acts. The United States has addressed these treaty obligations with some success.

Prior to the ratification of any of the treaties, the United States made a monumental step toward eradicating discrimination in the public education system when the Supreme Court desegregated the country's public schools in the Brown v. Board of Education decision in 1954. Consequently, the American schools are no longer permitted to reject a student solely on the student's ethnic background. Brown v. Board of Education also led to the mandated integration of public schools in historically segregated schools. Post-Brown, schools may have become physically more integrated but more was left to achieve.

The United States continues to make improvements in the area of education and today has created a framework within the federal government to theoretically ensure that any obstacles to an equal education are removed. For instance, the United States Department of Education administers laws and programs aimed to eliminate the racial disparities in the educational system. Recently, the Office for Civil Rights, which operates within the United States Department of Education, has broadened its responsibilities from simply administering laws, to now monitoring activities in the educational system, enforcing desegregation plans, issuing policies to help educators meet civil rights requirements, administering studies to review the system's compliance with civil rights laws, and investigating civil rights complaints.

The Office of Civil Rights has further broadened its focus on monitoring school districts by examining the more complex and subtle issues that underlie unequal access to programs that students may encounter. For example, the Office of Civil Rights has moved from focusing solely upon school districts and colleges that are openly segregated toward ensuring that there are no racial barriers for students who apply or participate in various educational programs and services. In addition to what the Office of Civil Rights already investigates, the office has also expanded the method of investigating civil rights complaints by utilizing non-adversarial dispute resolution methods to assist all parties to reach workable solutions for all involved.

The United States has made efforts to educate the public officials regarding torture, but due to the United States' unique definitions of torture and public officials, the extent to which the United States must educate their school officials is limited. While the government provides a formal education to all individuals who will be involved in the treatment of persons who are arrested, detained, or imprisoned, the United States does not include school officials in this list of officials. Although educational information on torture is not specifically directed toward school educators, the school officials and the general public may access the information through the United States Department of State web page. However, it is apparent that the United States does not intend to ensure that public school officials understand their obligation to prevent torture in the school system.

B. United States' Deficiencies Under International Treaties

The United States claims that "the American public educational system is open and accessible to all, regardless of race, ethnicity, immigration status, or socio-economic status," and yet the academic achievement gap between white students and students of color persists. The racial disparities in "funding, curriculum, school discipline, [and] college enrollment rate[s]," portray a public education system still plagued by institutional racism and still unequal. Although the United States has attempted to address the racial disparities in the public education system through programs and methods that are not facially discriminatory, the effects of the programs create higher standards and greater obstacles for minority students, and consequently add to the racial discrimination problem. This comment will address three areas in the education system that have discriminatory effects: disparate funding, academic tracking, and "zero tolerance" discipline policies.

1. Disparate Funding

First, the capabilities of schools in impoverished districts are extremely limited due to the structure of public school funding. If a school has minimal funding, the opportunity for impoverished students to excel is more difficult. When the money is unavailable, the necessities of a solid education such as books, technology, clean and safe facilities, good teachers, and small class sizes often cannot be provided. The students score lower on standardized tests and are unable to compete with the students from wealthier districts with more educational resources.

2. Academic Tracking

Many districts have created academic tracking programs. These programs allow teachers and school administrators to determine a student's abilities and potential and then place that student in an academic track reflective of teacher's or administrator's personal perception. The academic tracks range from remedial and special education programs to accelerated and gifted programs. Studies show that African American and Latino students are over-represented in the lower tracks and under-represented in the higher tracks. The tracking can begin very early in a child's academic career and can be extremely detrimental to the child's future. If a child is placed in a lower track because of a perceived inability to do mainstream work, it is often very difficult for the child to break into the higher track due to the very nature of the tracking system.

The method of determining how to put a student in a particular track is laden with racially discriminatory factors. To determine which track to place a child in, three factors are considered: standardized test scores, teacher recommendations, and parental intervention. First, the standardized tests have frequently been criticized for being racially biased. Second, teacher recommendations are strictly subjective and can be based solely upon general impressions. Third, if parents are unaware of the system due to language barriers or because of general ignorance, the parents are unlikely to intervene on behalf of their child and push for a higher track placement.

3. "Zero-Tolerance" Discipline Policies

Another area of racial disparity that leads to unequal treatment in the schools is the area of discipline. Studies show that students of color are more likely to be suspended and/or expelled from school than similarly situated white students. This statistic has become more pronounced now that schools that receive federal funding (all public schools) must implement "zero- tolerance" policies for weapons offenses. The policy may appear race neutral on its face, but the implementation of the policy has lead to findings of racial discrimination.

Since the consequences of bringing a weapon to school can be harsh, and can include suspension or expulsion, schools are permitted to evaluate incidents on a case-by-case basis and may deliver a less severe punishment if mitigating circumstances permit. There is evidence to suggest that if a student appears to have a positive and promising future, schools will overlook relatively minor violations such as weapon possession, and will not expel the student. Instead the schools will deliver a lesser punishment in the hopes of rehabilitation, but there are inequalities in the application of this school discretion. Often, the minority students do not receive the benefit of this second chance and tend to suffer more devastating consequences.

Racial discrimination affects more than disparate test scores and overall unequal treatment in the schools. One effect is addressed indirectly in CAT; however, because of the United States' limited definition of "torture," the CAT's implications are severely limited. According to the United States, the government need only deal with mental suffering caused by torturous acts in very few circumstances. These situations do not deal with any intentional racial discrimination that takes place in the schools but rather they address situations when the victim is in the custody of an official in the criminal setting or in a mental institution. The United States appears to ignore the times when children are under the control of the state during schools hours.

Children are under the school's control during much of the day, for five days a week. Yet this time of responsibility is not considered time during which the United States accepts a responsibility to ensure that the children are not experiencing torture in the form of mental suffering. When a child endures racial discrimination in the school system, the child will experience severe mental suffering that will affect him/her throughout the child's life. Students can easily feel frustrated as they are disregarded and classified in lower academic brackets, punished more harshly, and not given the financial means to succeed in school. As the discrimination continues throughout school, the long-term effects will cause severe mental pain as the students begin to believe they are inferior to their white peers. The United States has not acknowledged the possibility that the suffering of the students under the government's control may fall squarely under its own limited definition of torture.

According to all three treaties, the unequal treatment between minority students and Caucasian students runs counter to the United States' international obligations. In the United States' report to CERD, the government characterizes racial discrimination problems as mainly private acts of discrimination. However, the disparities in schools are not just a result of intentional or private acts. Discrimination in school is a form of institutional racism and must be addressed by the United States. The United States has an obligation under CERD to protect everyone from acts of racial discrimination and laws that either discriminate or have the effects of discrimination. Under CAT, the United States must prevent torture of all forms, including mental torture. Under ICCPR, the United States must protect every child, regardless of his/her race, as a minor in the society. These requirements are not currently being met.

C. How To Begin Eradicating Racial Discrimination

The problem with attempting to eliminate racial discrimination in the United States is its deep-rooted foundation. Over time, the United States has tried to tackle the issue of discrimination; but through many self-imposed limitations, such as the ones found in the treaty reservations, the government and the court have skirted around issues that need to be directly addressed. Discrimination in the schools is an issue that is easy to overlook because intent can rarely be proven.

The first step to eliminating racial discrimination in the school system is to recognize the serious disparities within the schools, and to recognize that the reasons for these disparities are not due solely to student abilities or personal racism. The type of discrimination in the schools that is often the most devastating is institutional racism. This type of racism has no intentional motivation but instead is set up within the system so that even if a person tries to be fair and equal, the chances are that discrimination will still occur.

There are several ways in which the United States can begin to attain the international standards that they have agreed to in various forms. The first step is to recognize that the reservations in CAT, CERD, and ICCPR are too narrow to truly reach the heart of discrimination. Institutional racism affects more people and has a more damaging effect upon the victims than personal racism does. If the United States ratifies a treaty but submits so many limiting reservations that the actual obligations of the United States in the treaty reflect the current laws of the country, the aspirational value of the treaty is lost.

The United States is not in compliance with any of the three aforementioned treaties in the area of education. However, according to the United States' report to the three treaty bodies, the United States has fulfilled most of the commitments agreed upon in the treaties. As long as the reservations pertaining to intentional acts exist, many of the problems with discrimination will persist; yet the United States will not have an international obligation to address them. Currently, the United States has ratified treaties that have been narrowed so much by reservations that the aspirational purpose of the treaty is lost. Thus the ratification by the United States resembles mere lip service to the international community, rather than a promise to improve.

A second vital step to eradicating racial discrimination in the schools is to provide equal funding for all students. It is ironic that students who are in the poorest of districts receive the smallest amount of funding. The students in these neighborhoods often face innumerable obstacles that will inhibit their ability to break out of the poverty circle. Yet these are the students who are given the fewest of school supplies and educational materials. The government cannot expect a school to produce students with quality test scores when the school has no resources to implement improvements.

The third step is to begin collecting data with consistent criteria around the country. The various school districts have several methods that are generally inconsistent with each other when collecting statistics about discipline, test scores, and academic placements. If schools were required to adhere to a uniform method, the country could provide evidence of the actual deficiencies in the public schools. The more the country accurately reports about weaknesses, the better chance legislators and school administrators have to efficiently and effectively address insufficiencies in public policy.

A fourth way to address the discrimination in schools is to eliminate the academic tracking programs that virtually lock students into a remedial track. When a student is locked into a program, the objective of providing equal education is lost. The United States is supposed to be the land of opportunity but in the tracking programs, the opportunity to succeed academically is practically siphoned away.

Finally, the federal government should reevaluate the "zero-tolerance" policies in schools. As the Programme of Action from the World Conference against Racism states, all measures should be taken to avoid programs that deny a student's equal access to a quality education. Because schools apply the "zero-tolerance" standard differently for similar offenses, the government must reexamine the goals of the policy and perhaps find a more rigid method for schools to apply the standard. If a more rigid application is impossible to agree upon, then the expulsionary element of the policy must be reserved for only the most severe of violations. Schools have been given so much discretion that personal racial biases are playing a significant role in the administration of the policy and are harming minority students disproportionately to white students. For these reasons, the policy must be adjusted or eliminated.

. . .

The United States has promised the international community that it will work to eliminate racial discrimination in the public education system. The United States has supported its commitment to eradicate racial discrimination in the CERD, the CAT, the ICCPR, and by their attendance at the "World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance." In 1954, the United States took a significant step forward by recognizing that the doctrine of "separate but equal" is not a constitutionally sound policy, but the struggle toward full integration is not yet finished.

Today the schools appear relatively integrated, but beyond the physical integration, many still areas are severely segregated. The funding is unequal, the opportunities within the schools are limited to minority students through the tracking programs, and the disciplinary policies impact minority students disproportionately to white students. The schools are not yet "open and accessible to all, regardless of race" as the United States has claimed. There is still a long road ahead of the country, with respect to the elimination of racism. The first step is an honest recognition of the problem. Children across the nation are entitled to a quality education and equal access to that education. The United States has acknowledged this right of children, but so far the country has not turned it into a reality. The United States must make the necessary steps to address the problems in the American public education system before the education system will ever reflect the intent of the Brown decision. We may not uphold the "separate but equal" doctrine but we have certainly not created an integrated and equal system.

{a1]. J.D. Candidate, The Dickinson School of Law of The Pennsylvania State University, 2003.