C. Specific Articles
Against this background, the specific provisions of U.S. law that give effect to the requirements of the Convention are indicated below.
ARTICLE 1
A preliminary word is necessary about the Convention's definition of "racial discrimination." Although the definition included in Article 1(1) contains two specific terms ("descent" and "ethnic origin") not typically used in federal civil rights legislation and practice, there is no indication in the negotiating history of the Convention or in the Committee's subsequent interpretation that those terms encompass characteristics which are not already subsumed in the terms "race," "color," and "national origin" as these terms are used in existing U.S. law. See, e.g., Saint Frances College v. Al-Khazraji, 481 U.S. 604 (1987); Shaare Tefila Congregation v. Cobb, 481 U.S. 615 (1987); Roach v. Dresser Industrial Valve, 494 F. Supp. 215 (W.D. La. 1980). The United States thus interprets its undertakings, and intends to carry out its obligations, under the Convention on that basis.
ARTICLE 2
Under Article 2(1), States Parties to the Convention condemn and undertake to eliminate
racial discrimination in all its forms and by all appropriate means. To this end, this article specifies a number of specific undertakings.
As required by Article 2(1)(a), racial discrimination by the government is prohibited throughout the United States. The Fifth and Fourteenth Amendments guarantee that no public authority may engage in an act or practice of racial discrimination against persons, groups of persons or institutions. These prohibitions apply with equal force at the federal, state and local levels, and all public authorities and institutions must comply. As indicated above, U.S. law extends this prohibition to private organizations, institutions and employers under many circumstances.
Under Article 2(1)(b), States Parties undertake not to sponsor, defend or support racial discrimination by any person. Such conduct is strictly prohibited in the United States. The U.S. Constitution prohibits discrimination on the basis of race or other personal characteristics at every level of government (federal, state, and local). Several federal statutes, including Title VI of the Civil Rights Act of 1964, prohibit discrimination by state or local governments, or private entities, that receive federal financial assistance. Not only does the U.S. government not sponsor, defend, or support discrimination, but the Federal government is actively engaged in the enforcement of antidiscrimination statutes against public and private entities in the areas of discrimination in employment, voting, housing and education.
Article 2(1)(c) requires States Parties to "take effective measures to review governmental, national and local policies. . .which have the effect of creating or perpetuating racial discrimination." Article 2(1)(c) also requires States Parties to "amend, rescind or nullify any laws and regulations" that have such effects.
The United States satisfies the policy review obligation of Article 2(1 )(c) through this nation's legislative and administrative process, as well as through court challenges brought by governmental and private litigants. U.S. law is under continuous legislative and administrative revision and judicial review.
Executive and Administrative Review
White House. As previously discussed, on June 13, 1997, President Clinton launched the President's Initiative on Race through which he asked all Americans to join him in a national effort to deal openly and honestly with racial differences. This year-long effort combined thoughtful study of government policies, constructive dialogue, and positive action to address the continuing challenge of how residents of the United States will live and work more productively as "One America" in the 21st Century.
The President convened an Advisory Board of seven distinguished Americans to assist him with the Initiative. The Advisory Board worked with the President to engage the many diverse groups, communities, regions, and various industries in this country. The President asked the Advisory Board to join him in reaching out to local communities and listen to Americans from all different races and backgrounds, to achieve a better understanding of the state of race relations in the United States. The Advisory Board also studied critical substantive areas in which racial
disparities are significant, including education, economic opportunity, housing, health care and the administration of justice. Once the year-long effort was completed, the Advisory Board submitted a report to President Clinton concerning its findings and recommendations for creative ways to resolve racial disparities.
Based on the foundation laid by the Race Initiative and the Advisory Board's Report, President Clinton created the White House Office on the President's Initiative for One America in February 1999. The Initiative for One America is the first free-standing office in the White House dedicated to the ongoing mission of ethnic, racial and religious reconciliation. The Office's director is an Assistant to the President, the highest staff-level position in the White House. The Initiative for One America promotes the President's goals of educating the American public about race, encouraging racial reconciliation through opening a national dialogue on race, identifying and advancing policies that can expand opportunities for racial and ethnic minorities, and coordinating the work of the White House and federal agencies to carry out the President's vision of One America.
Department of Housing and Urban Development. The Department's Office of Fair Housing and Equal Opportunity is responsible for enforcing the Fair Housing Act, which prohibits discrimination on the basis of race, color, religion, national origin, sex, handicap and familial status. With a view toward increasing the effectiveness of its enforcement activities, the Department is presently conducting a national housing discrimination study. Building upon previous studies conducted in 1977 and 1989, this is the most sophisticated and comprehensive study of its kind. This new study is a three-year project designed to examine housing practices in twenty urban and rural localities per year (up to sixty localities in total). Through the use of paired testers (people of different racial or ethnic backgrounds, matched for every other characteristic, such as income) HUD will examine and evaluate patterns and trends in housing sales and rentals, and in mortgage lending. Congress appropriated $7.5 million for the study in 1999 and $6.0 million in 2000. The results of this study will enable the Department more effectively to focus its enforcement efforts, building upon an existing aggressive enforcement program.
Department of Energy. In an effort to ensure equal and fair treatment for all of its employees, the Department of Energy (DOE) has recently undergone a significant restructuring of its Office of Civil Rights and a substantial reevaluation of security and practice policies which have been criticized as discriminatory against Asian-Americans.
First, in response to numerous long-standing complaints that the Energy Department's Office of Civil Rights was unresponsive and hopelessly backlogged, and that it failed to address adequately the needs of its employees, the Department embarked upon a wide-reaching reform project under the endorsement of President Clinton's Management Council.
Midway through the reform process, the Office of Civil Rights is rapidly becoming a case study in recovery. The backlog of cases has been reduced by one-third, alternative dispute resolution has been introduced to good result, and the morale of the office has been lifted substantially.
Second, in the summer of 1999, the Secretary of Energy established the DOE Task Force
Against Racial Profiling. This 19 member body, which includes senior federal and contractor officials, and a Civil Rights Commissioner, was chartered to (1) provide the Secretary with accurate observations and assessments of workplaces within the Department nationwide and (2) provide the Secretary with recommendations to ensure that policies against racial profiling within the DOE are strengthened and carried out effectively.
Including preliminary fact-finding delegations to the three nuclear labs, the Task Force conducted nine site visits to a variety of DOE facilities from June through November. In addition, four on-site consultations were made to corporations in the private sector that have been rated best by their employees for diversity management and workplace excellence.
Department of Defense. Although the military is one of the most racially and ethnically integrated institutions in the United States, inequities nevertheless persist. For this reason, policies and practices are under continual review and revision to ensure conformance with the institution's long-standing commitment to equal opportunity and non-discrimination.
Over the years, Department of Defense leadership has remained vigilant in order to sustain and improve the environment in which U.S. military members live and work. Unlike non-military equal opportunity programs that are based in law, Department of Defense military equal opportunity programs are based in Secretary of Defense policy. These programs are monitored internally through a process of Service reports and a system of compliance investigations. Accountability is stressed throughout the highest and lowest levels of the chain of command. Commanders at the unit level use assessment surveys to measure the effectiveness of equal opportunity guidance, practices and programs.
On November 22, 1999, the Secretary of Defense released two reports assessing equal opportunity progress from a Department of Defense perspective: a report on the Career Progression of Minority and Women Officers and a report on the Armed Forces Equal Opportunity Survey. Both reports are available on the World Wide Web at <http://www.defenselink.mil/pubs/>.
The report on the Career Progression of Minority and Women Officers study affirms equal opportunity successes while identifying areas that require continuing attention and effort. The study addressed in part the perceptions of service members, but its main thrust was to examine performance in providing equal opportunity in the military Services. The study determined that:
From 1977 to 1997, representation of racial minorities and women among active duty commissioned officers more than doubled, from 7 percent to 15.3 percent for minority officers and from 5.9 percent to 14.1 percent for women officers. These patterns of increasing minority and female representation were true for all four Services.
Even during the post-Cold War force reduction, representation of women officers increased, as did the representation of Blacks, Hispanics, and other minorities.
Women and minorities tend to be concentrated in administrative and supply areas and underrepresented in tactical operations, the area that yields two-thirds of the general and flag
officers of the Services. Women and minorities are very much underrepresented in some fields such as aviation, although the trend is upwards.
Compared to White men, promotion rates for White women are about the same. But promotion rates for Black men and women are lower at some rank levels. Potential factors contributing to the different promotion rates for minorities and women are: educational/precommissioning preparation, initial assignments contributing to a "slow start," and limited access to peer and mentor networks.
Some minority and female members believe they are held to a higher standard than majority race and male colleagues and feel they must pass "tests" to demonstrate their worth on the job.
Officers who felt they had been discriminated against generally believed that an individual, rather than the military institution, committed the act.
Many women and minority officers felt that, overall, they had been treated fairly and that the equal opportunity climate was not better, but probably worse, in the private sector.
The report on the Armed Forces Equal Opportunity Survey provided similar and corroborating information. The survey is the first of its kind and was administered to 76,000 military members from the enlisted to the officer ranks. The survey results reflected areas where the Department's actions have been successful and areas where the Department's actions require attention. Some of the key findings were:
There are differences in the way service members of different races and ethnic groups perceived the state of equal opportunity. Black service members tended to be more pessimistic about the degree of progress in equal opportunity than were members of other race or ethnic groups.
Many service members of all races and ethnic groups reported negative experiences they felt were based on their race or ethnicity. Service members reported having had such experiences both on military installations and in surrounding communities.
Minority service members were more likely than Whites to report being unfairly punished. Some 9 percent of Blacks, 6 percent of Hispanics, 5 percent of American Indian/Alaska Natives, and 4 percent of Asian/Pacific Islanders reported being unfairly punished in comparison to only 2 percent of Whites.
Relatively small percentages of members in each racial/ethnic group said they experienced an incident of harassment or discrimination related to the military personnel system.
Service members perceived that there had been greater improvement in race and ethnic relations in the military than in civilian society and that opportunities and conditions were better in the military than in civilian society.
In the memorandum transmitting the Armed Forces Equal Opportunity Survey report to the Secretaries of the Military Departments and the Chairman of the Joint Chiefs of Staff, Secretary of Defense William Cohen wrote: "I am convinced that this important survey can inform our actions as we work to improve our processes and practices that are designed to ensure equal opportunity for fair treatment of all men and women in uniform. To this end, a complete electronic file of the survey data is being provided to each Service to assist in their review and in the assessment of modifications and improvements of Service programs and procedures that may be warranted." Secretary Cohen followed this guidance with a call for a meeting of the Department's senior leadership to review the survey results and the career progression report.
The Department of Defense plans to use both the report on the Career Progression of Minority and Women Officers and the report on the Armed Forces Equal Opportunity Survey to evaluate the effectiveness of its efforts in equal opportunity into the next millenium.
Department of Education. The Department of Education regularly prepares reports on the nation's education system, which helps guide U.S. education policy and how it should address disparities among students of different races, ethnicity and national origin. Most recently, the Department's "Condition of Education and the National Assessment of Educational Progress" (NAEP) reflects progress in narrowing the education gap in the United States and provides insight into how policy might be crafted to address existing disparities in education.
For instance, the 2000 Condition of Education report indicates that long-term NAEP trend data show that the achievement gap between White and Black students has decreased over the past 30 years in reading.5 Despite such gains in the achievement of Black students, the average scores of Black students remain lower than those of Whites at all ages tested. This gap exists when children first enter school. The U.S. Department of Education's Early Childhood Longitudinal Study found that, in fall 1998, White kindergartners more likely than their Black peers to demonstrate proficiency in reading and mathematical skills. Significantly, the rates of high school completion of Blacks have risen more than those of Whites since the early 1 970s. This advance substantially closed the gap between the Black and White rates. Unfortunately, the gap between Hispanic and White rates of completion has persisted and remains a continuing challenge.
The rates of college completion for Black and Hispanic high school completers rose between 1971 and 1998. However, because the college completion rate for young White adults increased faster, the gaps in higher education attainment between Whites and Hispanics and Whites and Blacks have actually grown. Furthermore, Whites still enroll in college at higher rates than Blacks and Hispanics.
In mathematics, the latest NAEP report reflects general progress. Overall, students' scores on the NAEP 1996 mathematics assessment increased for all three grades assessed (4, 8, and 12). Scores were higher in 1996 than in 1992 for all three grades. Black and Hispanic students recorded increases in their average mathematics scale scores for grades 4 and 12 over the period 1990 to 1996,
5 Both the NAEP and the 2000 Condition of Education Reports are available on the Department of Education web site, <http://www.ed.gov>.
although the gaps between scores for these subgroups did not change in 1996.
Students also have demonstrated progress in reading. The NAEP 1998 Reading Report Card indicated increases in average reading scores for grades 4, 8 and 12. At the fourth and twelfth grades, the national average score was higher in 1998 than in 1994. At the eighth grade, the national average score was higher in 1998 than in 1994 and 1992. At grade 4, for Black students, the average reading score was higher in 1998 than in 1994. At grade 8, increases were evident for both White and Black students. At grade 12, increases were evident for both White and Hispanic students.
The Department of Education uses studies like this to craft policy initiatives to address educational disparities in the United States. Some examples include, inter alia, its support and promotion of magnet schools, the elimination of segregation of English language learners, the promotion of equity in testing, the identification of gifted and talented minority students, and initiatives to increase minority enrollment in and graduation from institutions of higher learning.
Legislative Review
Employment. The statutory centerpiece of the nation's effort to eliminate race discrimination in employment is Title VII of the Civil Rights Act of 1964. This Act was the first piece of legislation targeting race discrimination in employment since the post-Civil War era Civil Rights Act of 1866. Passage of this Act was the product of the civil rights movement and the gradual process of bringing race issues into the national conscience in the 1950s and 1960s. The original civil rights bill proposed in 1963 primarily addressed voting rights, denial of public accommodations, and denial of educational opportunities, but did not address employment discrimination. Employment discrimination was excluded because at the time it was considered to be an explosive issue that might defeat passage of the bill into law, just as many similar proposals had been defeated in the past.
Notwithstanding the immense controversy over whether the bill should prohibit discrimination in employment, the bill ultimately was amended to include Title VII. This title prohibits discrimination in employment on the basis of race, color, national origin, religion and sex. The types of prohibited employment discrimination include hiring, discharging, compensation, all terms, benefits and conditions of employment, and any limits, segregation, or classifications that would tend to deprive an individual of employment opportunities. 42 U.S.C. sec. 2000e-2(a). Moreover, the statute covers not only employers, but also employment agencies and unions. 42 U.S.C. sec. 2000e-2(b) and (c). Title VII also created a new, independent, bi-partisan executive agency, the Equal Employment Opportunity Commission (EEOC). Under Title VII, the EEOC was charged with enforcing Title VII by investigating charges of discrimination and attempting to resolve meritorious charges through conciliation.
Under the original enactment of Title VII, the EEOC lacked the authority to enforce the law in cases where the EEOC was unable to secure voluntary compliance. Between 1966 and 1971, numerous bills were introduced in Congress to amend Title VII. Some of these proposals would have granted cease and desist authority to the EEOC and expanded the scope of Title VII to include all employers, while others would have eliminated the EEOC altogether. During this period,
statistics revealed a continuing high unemployment rate for racial minorities and a significant wage gap between Blacks and Whites. By 1971, it was evident that the voluntary approach in Title VII was inadequate to the task of eliminating employment discrimination.
In 1972, Congress enacted the Equal Employment Opportunity Act, substantially increasing the scope of Title VII and strengthening its enforcement mechanisms. Coverage of the act was expanded to include state and local governments, and the minimum number of employees or union members necessary to subject an employer or a union to Title VII was reduced from 25 to 15. In addition, the 1972 amendments created the first statutory mechanism for federal employees to pursue employment discrimination claims against the federal government. Perhaps the most significant change in the 1972 amendments was the granting of litigation authority to the EEOC. Under this authority, the EEOC was empowered to file civil lawsuits in federal court after conducting an investigation and finding reasonable cause to believe discrimination had occurred. The amendments reserved for the Department of Justice the authority to file suit against state and local governments.
In 1990, a bill was introduced in Congress for the purpose of negating several decisions of the Supreme Court that had diluted the protections of Title VII. At the same time, civil rights advocates were proposing to expand the remedies available to victims of discrimination in the workplace. Although controversial, the bill was ultimately enacted into law as the Civil Rights Act of 1991. The Act contains many important provisions restoring protections eroded over time and creating new remedies. For example, the Act authorized jury trials and compensatory and punitive damages in cases of intentional discrimination. Previously, all trials were before judges, and monetary remedies were limited to lost past and future salary. In addition, the Act recognized "mixed motives" cases, whereby an employer violates Title VII if race was a motivating factor for any employment practice, even though other factors also motivated the employment decision. While the Act provided important substantive rights for victims of race discrimination, it did not resolve certain important questions. For example, the Act did not define the "business necessity" defense applicable to adverse impact claims, even though it was the subject of extended debate in Congress.
As the above example indicates, anti-discrimination laws undergo continuous revision in the United States. State anti-discrimination legislation receives similar treatment in each individual state legislature. The United States is committed - at all levels of government - to continue to review and revise existing legislation to adapt to a changing environment and to further more effectively the goals of the Convention.
Voting. By 1965, concerted efforts to break the grip of state-sponsored disfranchisement of Black voters had been under way for some time, but had achieved only modest success overall and in some areas had proved almost entirely ineffectual. The murder of voting-rights activists in Philadelphia, Mississippi gained national attention, along with numerous other acts of violence and terrorism. The conflicts culminated with the March 7, 1965 attack by Alabama state troopers on peaceful voting rights marchers who were crossing the Edmund Pettus Bridge in Selma, Alabama en route to the state capitol in Montgomery. This unprovoked act of violence persuaded the President and Congress to overcome Southern legislators' resistance to effective voting rights legislation. President Johnson issued a call for a strong voting rights law and hearings began soon thereafter on the bill that would become the Voting Rights Act.
Congress determined that the existing federal anti- discrimination laws were not sufficient to overcome the resistance by state officials to enforcement of the 15th Amendment. The legislative hearings showed that efforts by the Department of Justice to eliminate discriminatory election practices through case-by-case litigation had been unsuccessful: as soon as one discriminatory practice or procedure was proven to be unconstitutional and enjoined, a new one would be substituted in its place and litigation would have to commence anew.
The resulting legislation, which President Johnson signed into law on August 6, 1965, temporarily suspended literacy tests, and provided for the appointment of federal examiners (with the power to register qualified citizens to vote), in those jurisdiction that were "covered" according to a formula provided in the statute (now all or part of 16 states). In addition, under Section 5 of the Act certain "covered" jurisdictions were required to obtain prior approval, or "pre-clearance," from the federal government (either the U.S. District Court in Washington, D.C. or the Attorney General of the United States) before they were permitted to implement any new voting practices or procedures. Section 2 of the Act, which closely followed the language of the Fifteenth Amendment, applied a nationwide prohibition of denial or abridgment of the right to vote on account of race or color.
Congress extended Section 5 for five years in 1970 and for seven years in 1975. With these extensions Congress validated the Supreme Court's broad interpretation of the scope of Section 5 pre-clearance. During the hearings on these extensions Congress heard extensive testimony concerning the ways in which voting electorates were manipulated through gerrymandering, annexations, adoption of at-large elections and other structural changes to prevent newly-registered black voters from effectively using the ballot. Congress also heard extensive testimony about voting discrimination that had been suffered by Hispanic, Asian and Native American citizens. In response to this latter concern, the 1975 amendments added protections against discrimination in voting for minority-language citizens.
In 1982, in response to the Supreme Court's decision in Mobile v. Bolden (holding that the Voting Rights Act prohibited only purposeful discrimination), and after extensive hearings, Congress amended Section 2 of the Voting Rights Act to prohibit expressly state practices or procedures that had the effect of discriminating against minority voters. This change has greatly strengthened the enforcement efforts of both the Department of Justice and private parties. In addition, in 1982 Congress also renewed Section 5 of the Act for twenty-five years.
Housing. For over 100 years after Reconstruction, governmental practices in the U.S. contributed to segregated housing in the United States. For many years, the federal government itself was responsible for promoting racial discrimination in housing and residential segregation. This changed with the passage of the Fair Housing Act in 1968. Passage of this Act provided a sign of hope that the terrible racial divisions within the country, reflected in the violence that enveloped the Nation following the assassination of Dr. Martin Luther King Jr., could be healed. Declaring that it is "the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States," the Act prohibited discrimination in housing on the basis of race, color, religion, or national origin. At the time, the Act was hailed as "a detailed housing law,
applicable to a broad range of discriminatory housing practices and enforceable by a complete
arsenal of Federal authority." Jones v. Alfred H. Mayer Co., 392 U.S. 409, 417 (1968). However,
this characterization of the 1968 Act was true only when contrasting the Act with prior existing law.
The "arsenal of Federal authority" provided by the 1968 Act was far from powerful or complete. Indeed, the Supreme Court noted only a few years after Jones that "the Housing Section of the Civil Rights Division had less than two dozen lawyers," and concluded that "complaints by private persons [were] the primary method of obtaining compliance with the Act." Though the Attorney General had brought some important cases, the authority to initiate enforcement actions was limited to situations where there was a pattern or practice of discrimination or where a group of persons had been denied rights granted by the Act, and such denial "raise[d] an issue of general public importance." In addition, the Act limited the Attorney General to seeking "preventive relief," which the courts construed as limited to equitable relief. Although the 1968 Act empowered HUD to receive and investigate individual complaints of discrimination, neither HUD nor DOJ had authority to initiate enforcement actions based on such complaints. The Act required individuals to bring their own lawsuits if they desired judicial resolution of their claims.
In time, Congress recognized the impediments to effective Governmental enforcement of the 1968 Fair Housing Act and addressed them by passing the Fair Housing Amendments Act (FHAA) of 1988. The 1988 Amendments expanded the Act to cover discrimination against persons with disabilities and families with children and greatly expanded the Federal Government's role in enforcing the Fair Housing Act: the amendments gave both HUD and DOJ the authority to address discriminatory complaints from individuals and gave DOJ specific authority to seek compensatory and punitive damages for persons aggrieved by discrimination in both individual and pattern-or-practice cases. In pattern-or-practice cases, the amended Act allows DOJ to seek civil penalties of up to $50,000 for a first violation and up to $100,000 for subsequent violations of the statute. This ability to obtain monetary relief greatly enhances DOJ's authority. Defendants now know that a suit by DOJ (or an administrative enforcement action by HUD) can mean costly damage awards and civil penalties in addition to litigation expenses.
After the amended Act went into effect, the number of civil fair housing cases brought by DOJ increased from approximately 15 to 20 in the years prior to the 1988 amendments to a peak of 194 cases in 1994.
Judicial Review
Both the federal and state judiciary provide extensive avenues for judicial review of both anti-discrimination law and discriminatory practices in the United States. In the years since the seminal case of Brown v. Board of Education, 347 U.S. 483 (1954), U.S. courts have played a key role in the review of governmental, national and local policies that may have the effect of creating or perpetuating racial discrimination. Four areas in which U.S. courts have been particularly active in reviewing and shaping anti-discrimination law have been in employment, voting, housing and education.
Employment. In the early years after the enactment of Title VII, many cases of race
discrimination were proven with direct evidence of a racial bias. Direct evidence is generally understood as biased statements made or adopted by an employer's decision-makers. However, as employers became more aware of the prohibitions in the new law, race discrimination increasingly took on more subtle forms. In 1973, the Supreme Court held in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), that discrimination may also be proven by indirect, or circumstantial, evidence, and it established the disparate treatment theory of proving discrimination. Specifically, McDonnell Douglas established the elements of a prima facie case of race discrimination; the defendant's burden to articulate a legitimate, non-discriminatory reason for its actions; and the plaintiff's burden to show that the defendant's articulated reason is a mere pretext for a discriminatory motive. This paradigm continues to function, with only minor modifications, as the most common theory for proving race discrimination.
In 1971, the Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424 (1971), examined the issue of whether race discrimination prohibited by Title VII includes cases where the employer lacks a discriminatory motive. The Griggs decision established the adverse impact theory of proving discrimination, holding that a plaintiff may prove race discrimination where an employer's policy or practice is neutral on its face, yet is discriminatory in operation and is not justified by business necessity. The Supreme Court later established a more stringent test for establishing adverse impact claims, but Congress restored and clarified the Griggs standard in the Civil Rights Act of 1991.
Another commonly used method of proving race discrimination is the harassment theory. Over the years, appellate courts have consistently held that Title VII prohibits racial harassment, even where it entails no tangible job detriment. See, e.g., Daniels v. Essex Group, 937 F.2d 1264 (7th Cir. 1991); Vance v. Southwestern Bell Tel. & Tel. Co., 863 F.2d 1503 (11th Cir. 1989); Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971). Under this theory of discrimination, an employer may violate Title VII where it subjects employees to severe or pervasive unwelcome conduct because of their race. Under certain circumstances, employers can even be vicariously liable for harassment by co-workers.
Voting. The Voting Rights Act, enacted in 1965, did not include a provision prohibiting the imposition of poll taxes, but instead, it directed the Attorney General to challenge its use. In Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966), the Supreme Court held Virginia's poll tax to be unconstitutional under the 14th Amendment. Between 1965 and 1969 the Supreme Court also issued several key decisions upholding the constitutionality of Section 5 and affirming the broad range of voting practices for which prior federal approval ("preclearance") was required. As the Supreme Court stated in its 1966 decision upholding the constitutionality of the Act:
Congress had found that case-by-case litigation was inadequate to combat wide-spread and persistent discrimination in voting, because of the inordinate amount of time and energy required to overcome the obstructionist tactics invariably encountered in these lawsuits. After enduring nearly a century of systematic resistance to the Fifteenth Amendment, Congress might well decide to shift the advantage of time and inertia from the perpetrators of the evil to its victims.
South Carolina v. Katzenbach, 383 U.S. 301, 327-28 (1966). See also Allen v. State Board of
Elections, 393 U.S. 544 (1969) (recognizing that gerrymandered district boundaries or at-large elections could be used to dilute minority voting strength).
Some years later, in 1973 the Supreme Court held certain legislative multi-member districts unconstitutional under the 14th Amendment on the ground that they systematically diluted the voting strength of minority citizens in Bexar County, Texas. This decision in White v. Regester, 412 U.S. 755 (1973), strongly shaped litigation through the 1970's against at-large systems and gerrymandered redistricting plans. However, in Mobile v. Bolden, 446 U.S. 55 (1980), the Supreme Court held that any constitutional claim of minority vote dilution must include proof of a racially discriminatory purpose. This requirement was widely seen as making such claims far more difficult to prove. As noted above, Congress amended the Voting Rights Act in response to Mobile v. Bolden to prohibit procedures or practices that have the effect of discrimination against minority voters.
In Shaw v. Reno (1993), the Supreme Court for the first time recognized an "analytically distinct" equal protection claim for challenging a redistricting plan that allegedly constitutes a racial classification. In Shaw, the Court held that five North Carolina voters had stated a claim under the Equal Protection Clause in alleging that the state's congressional redistricting plan contained districts shaped so dramatically irregular that they could only be viewed as having been drawn along racial lines. In a series of subsequent cases, chief among them Miller v. Johnson in 1995 and Bush v. Vera in 1996, the Court developed an elaborate framework for the adjudication of these Shaw claims. Under that framework, the plaintiff's initial burden is to show that the state used race as the "predominant factor" in the design of the challenged district, "subordinat[ing] traditional race-neutral districting principles . . . to racial considerations." If the plaintiff makes this showing, the plan is subject to strict scrutiny and will be held unconstitutional unless the state demonstrates that its use of race was narrowly tailored to achieve a compelling state interest.
The appropriate application of this new constitutional cause of action -- and its interaction with the Voting Rights Act -- has been the subject of great debate and the law in this area is still evolve.
Housing. In the years since the enactment of the Fair Housing Act, there have been many important decisions by the federal courts that have shaped housing discrimination law. See e.g., United States v.West Peachtree Tenth Corp., 437 F.2d 221, 228 (5th Cir. 1971) (setting forth a model remedial decree for fair housing cases); United States v. City of Black Jack, 508 F.2d 1179 (8th Cir. 1974) (United States successfully challenged racially discriminatory zoning practices that had precluded development of racially integrated, low-income housing in a St. Louis suburb); United States v. Hunter, 459 F.2d 205 (4th Cir.), cert. denied, 409 U.S. 934 (1972) (holding that Section 804(c), 42 U.S.C. sec. 3604(c), prohibited the publication of an advertisement for an apartment in a "White home" without violating the First Amendment).
Two of the most important Supreme Court cases in this area are Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 209, 211 (1972) and Havens v. Coleman, 455 U.S. 365 (1982). In Trafficante, the Supreme Court held that existing tenants in an all-White housing complex have standing to sue under the Fair Housing Act to redress the landlord's discrimination against Blacks who desired to become tenants. In Havens, the Court held that fair housing "testers" (matched pairs
of Blacks and Whites who pose as homeseekers in order to detect whether the housing provider is unlawfully discriminating) and fair housing organizations have a right to sue in federal court under certain circumstances. After these two important Supreme Court decisions, standing under the Fair Housing Act is as broad as Congress could have made it.
Education. The establishment of a judicial framework for eliminating race discrimination in education began to evolve in the 193 0s with challenges to the legalized denial of equal protection of the laws. In San Diego, California, for example, children of Mexican descent challenged segregation successfully in state court in Alvarez v. The Board of Trustees of the Lemon Grove School District. (Superior Court of the State of California, San Diego, Petition for Writ of Mandate No. 66625, February 13, 1931). Local school officials in Lemon Grove, California barred Mexican students from the local school, instead directing them to a separate, inferior building. The children refused to attend, and they challenged the school board. The state court ruled that the school board had no legal right to segregate the children.
The assault in the federal courts began with an attack on the absence of professional and graduate schools for Blacks. These efforts bore initial fruit in 1938 when the Supreme Court ruled in Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938), that each state had a legal responsibility to provide an equal education within its borders and ordered the admission of a Black student to the School of Law at the State University of Missouri . In 1950, the Court also ruled in Sweatt v. Painter, 339 U.S. 629 (1950), that the state of Texas violated the Fourteenth Amendment's Equal Protection Clause when it refused to admit the petitioner to the University of Texas Law School.
Led by future Supreme Court Justice Thurgood Marshall, Blacks directly challenged the separation of the races in education in the seminal case of Brown v. Board of Education of Topeka (Brown I). 347 U.S. 483 (1954). The Court noted the importance of education as "perhaps the most important function of state and local governments," and concluded, "in the field of public education the doctrine of `separate but equal' has no place. Separate educational facilities are inherently unequal."
Later, in concert with congressional action on the issue of equal educational opportunity, the Supreme Court repeatedly required school districts to take action that achieved integration, rather than merely removed legal barriers. The Supreme Court supported these requirements in Green v. County School Board of New Kent County, 391 U.S. 430 (1968). Alexander v. Holmes County Board of Education, 396 U.S. 19 (1969) and Swann v. Charlotte-Mecklenburg Board of Education, 402 US. 1, 30-3 1 (1971).
Then, in Keyes v. School District No. 1413 U.S. 189 (1973), the Court made clear that the North and West were required to comply with the Court's desegregation mandates. In Keyes, the Court required the City of Denver to dismantle a school system that its school districts had purposefully segregated.
To deal with discrimination on the basis of race and ethnicity as complicated by language differences, the Supreme Court determined in Lau v. Nichols, 414 U.S. 563 (1974), that the failure of a school system to provide appropriate services to Chinese students who were no proficient in
English to allow meaningful participation in the educational process. It therefore constituted discrimination under Title VI of the Civil Rights Act.
The Supreme Court has also dealt some blows to desegregation and equality in education. In San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 12-14, 55 (1973), the Court held that the vastly unequal expenditures between different school districts did not violate the Equal Protection Clause despite the concentration of minority students in districts with drastically lower expenditures. In Milliken v. Bradley, 418 U.S. 717, 745 (1974), the Court excluded many suburban districts from desegregation plans by limiting desegregation remedies to the school district in which the constitutional violation occurred. As Whites rushed to the suburbs, this decision limited options for desegregation in many cities that had large concentrations of minority students and few Whites.
Disparate Impact. With respect to the second obligation of Article 2(1)(c), practices that have discriminatory effects are prohibited by certain federal civil rights statutes, even in the absence of any discriminatory intent underlying those practices. Thus, such practices may be nullified under the force of those statutes, consistent with Article 2(1 )(c). This is true of the Voting Rights Act of 1965, which Congress amended in 1982 to make clear that practices that have a discriminatory effect on minority voters violate Section 2 of that statute. The same is true under Title VII of the 1964 Civil Rights Act, the federal regulations implementing Title VI of the 1964 Civil Rights Act, and the Fair Housing Act, as those statutes have been interpreted by the Supreme Court and lower courts. Griggs v. Duke Power Co., 401 U.S. 424 (1971) (Title VII); Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582 (1983) (Title VI implementing regulations); R. Schwemm, Housing Discrimination Law and Litigation � 10.04 (1990) (noting that although the Supreme Court has yet to address the issue, lower courts have uniformly held that disparate impact claims may be brought under the Fair Housing Act, even in the absence of discriminatory intent).
While evidence of a disparate impact alone can establish a violation of the Voting Rights Act, the Fair Housing Act and Titles VI and VII of the 1964 Civil Rights Act, it is not sufficient to demonstrate a Constitutional violation of equal protection (under the Fifth or Fourteenth Amendments). In such cases, the plaintiff must establish that the challenged act was done with discriminatory intent. See Washington v. Davis, 426 U.S. 229 (1976) (Equal Protection Clause); General Building Contractors Ass'n, Inc. v. Pennsylvania, 458 U.S. 375 (1982) (18 U.S.C. sec. 1981); R. Schwemm, Housing Discrimination Law and Litigation � 10.04 (1990). This is not to say that disparate impact is irrelevant in equal protection or Sections 1981 or 1982 litigation, however. Determining whether discriminatory purpose exists "demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266 (1977). As the Supreme Court noted in Arlington Heights, disparate impact "may provide an important starting point" for that inquiry. Id. Indeed, where racial disparities arising out of a seemingly race-neutral practice are especially stark, and there is no credible justification for the imbalance, discriminatory intent may be inferred. Casteneda v. Partida, 430 U.S. 482 (1977). In most cases, however, adverse effect alone is not determinative, and courts will analyze statistical disparities in conjunction with other evidence that may be probative of discriminatory intent. Arlington Heights, 429 U.S. at 266-67. If the totality of the evidence suggests that discriminatory intent underpins the race-neutral practice, the burden shifts to the defendant to justify that practice. See Mt. Healthy City School Bd. of Education v. Doyle, 429 U.S.
274 (1977).
In its recently adopted General Recommendation XIV, the Committee declared that "in seeking to determine whether an action has an effect contrary to the Convention, it will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or ethnic origin." The Committee's use of the term "unjustifiable disparate impact" indicates its view that the Convention reaches only those race-neutral practices that both create statistically significant racial disparities and are unnecessary, i.e., unjustifiable. This reading of Article 2(1 )(c) tracks the standards for litigating disparate impact claims under Title VII, the Title VI implementing regulations, and the Fair Housing Act. It is also consistent with equal protection and Sections 1981 and 1982 standards, to the extent that statistical proof of racial disparity - particularly when combined with other circumstantial evidence - is probative of the discriminatory intent necessary to make out a claim under those provisions. In the view of the United States, Article 2(1 )(c) does not impose obligations contrary to existing U.S. law.
Article 2(1)(d) requires each State Party to "prohibit and bring to an end, by all appropriate means, including legislation as required by the circumstances, racial discrimination by any persons, group or organization." As indicated above, governmental policy at all levels reflects this undertaking, and there are many different mechanisms, including litigation and legislation, through which this important goal is being achieved by the United States.
As discussed in the context of the United States' reservations, understandings and declarations above, there are important constitutional limits on the permissible reach of governmental regulation in the United States. For the reasons articulated in that discussion above, the United States conditioned its ratification on a formal reservation stating that, to the extent the Convention calls for a broader regulation of private conduct than permissible under U.S. law, the United States does not accept any obligation under this Convention to enact legislation or take other measures under paragraph (1) of Article 2, subparagraphs (1)(c) and (d) of Article 2, Article 3 and Article 5 with respect to private conduct except as mandated by the Constitution and laws of the United States.
Under Article 2(1)(e), each State Party undertakes "to encourage, when appropriate, integrationist multi-racial organizations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division."
As part of his Initiative on Race, President Clinton has taken important steps to encourage various sectors of United States society to celebrate diversity and work toward the goal of building One America by promoting racial reconciliation and encouraging racial equal opportunity for all.
For example, on July 20, 1999, President Clinton issued a call to action to the legal community to enlist their support in the fight for equal justice. Leading organizations in the United States, including the American Bar Association, the American Corporate Counsel Association, the Association of American Law Schools and the Lawyers Committee for Civil Rights, responded by forming the "Lawyers for One America." Lawyers for One America is a unique collaboration with a mission to promote racial justice through increased pro bono legal service and diversity initiatives
within the legal community.
On March 9, 2000, President Clinton met with a broad group of American religious leaders to highlight new commitments and programs they have pledged to undertake within the faith community to ensure that the nation's religious organizations are doing their part to expand diversity, end racism and promote racial reconciliation. At the meeting, the National Conference for Community and Justice (NCCJ) pledged to hold a national forum of faith leaders to share information on their efforts and to seek commitments from other faith leaders to address race issues.
On April 6, 2000, President Clinton met with the leaders of the nation's largest corporations to challenge them to promote diversity and make commitments to expand economic opportunities to racial minorities and close the opportunity gap that exists in the United States. At the meeting, several corporate leaders pledged to convene dialogues on racial issues, workplace diversity and employment equity during the next year. In addition, twenty-five leading companies pledged to spend $250 million, $1 million per year for the next ten years, to expand diversity in the high technology workforce.
Also inspired by President Clinton's leadership on race relations, numerous cities in the United States, like Indianapolis, Indiana and Grand Rapids, Michigan, have held or are planning to hold day-long "race summits" that bring together people of diverse backgrounds to hold dialogues on racial reconciliation.
The Department of Justice promotes the goals of Article 2(1)(e) through active involvement in communities beset by either actual or potential destructive racial conflict. The Department's Community Relations Service sends experienced mediators to assist local communities in resolving and preventing racial and ethic conflict, violence or civil disorder. For over thirty years, the Department has played an enormously positive role in conflict prevention at the local level.
The Equal Employment Opportunity Commission (EEOC) seeks to eliminate racial discrimination through education and prevention, and by publishing policy guidance statements, compliance manuals and other educational materials. The EEOC also regularly sponsors nationwide technical assistance program seminars, and makes presentations to employee and employer interest groups. Within the past two years, the EEOC has developed a comprehensive website <http://www.eeoc.gov> and launched a mediation program in each of its district offices, with the goal of resolving charges of discrimination while preserving working relationships.
Special Measures. Article 2(2) provides that, when circumstances so warrant, States Parties shall take "special and concrete measures" for the "adequate development and protection of certain racial groups or persons belonging to them for the purpose of guaranteeing to them the full and equal enjoyment of human rights and fundamental freedoms." Article 1(4) specifically excludes from the definition of "racial discrimination" "[s]pecial measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection" in order to provide equal enjoyment of human rights and fundamental freedoms. Such measures may not, however, lead to the maintenance of "unequal or separate rights for different racial groups" or "be continued after the objectives for which they were taken have been achieved."
Together, Article 1(4) and Article 2(2) permit, but do not require, States Parties to adopt race-based affirmative action programs without violating the Convention. Deciding when such measures are in fact warranted is left to the discretion of each State Party.
At the federal level, the United States has been pursuing such "special measures" for many years. For much of this century, racial and ethnic minorities and women have confronted a variety of legal and social barriers to equal opportunity in the United States. Segregated, inferior schooling combined with historic economic disadvantage left many effectively barred from participating in the benefits of a growing national economy. Even after the legal barriers to equal treatment were removed, the residual economic and social effects remained.
In 1961, President John F. Kennedy issued an Executive Order (No. 10925) which used the term "affirmative action" to refer to measures designed to achieve non-discrimination in employment. Four years later, President Lyndon Johnson signed Executive Order 11246, requiring federal contractors to take affirmative action to ensure equality of employment opportunity without regard to race, religion and national origin. In 1967, the Executive Order was amended to add gender as a prohibited basis of discrimination. The most far-reaching expansion of the affirmative action approach at the federal level took place in 1969 in connection with the so-called "Philadelphia Order" concerning construction trades in Philadelphia, PA.
The concept of using affirmative action to ensure equality of opportunity was initially incorporated into federal statutory law through Title VII of the Civil Rights Act of 1964, which aimed at ending discrimination by large private employers whether or not they had government contracts.
A substantial number of existing federal ameliorative measures could be considered "special and concrete measures" for the purposes of Article 2(2). These include the array of efforts designed to promote fair employment, statutory programs requiring affirmative action in federal contracting, including sheltered corporations, race-conscious educational scholarships, and direct support for historically Black colleges and universities, Hispanic-serving institutions and Tribal colleges. Some are hortatory, such as those based in statutes encouraging recipients of federal funds to use minority- owned and women-owned banks. Others are mandatory; for instance, the Community Reinvestment Act requires federally chartered financial institutions to conduct and record efforts to reach out to under-served communities, including, but not limited to, minority communities. Still others focus on targeted outreach and training efforts; for instance, the U.S. Department of State maintains the Foreign Affairs Fellowship Program, an initiative designed to increase minority participation in the Foreign Service.
The Small Business Act requires each federal agency to set goals for contracting with "small and disadvantaged businesses." Under its so-called "Section 1207" authority, the Defense Department is permitted to provide a ten percent bid price preference and to employ reduced- competition systems when necessary to meet its "small and disadvantaged businesses" contracting goals. The Omnibus Diplomatic Security and Anti-Terrorism Act requires that a minimum of ten percent of funds appropriated for diplomatic security projects be allocated to minority business
enterprises. Certain small education grant programs (e.g., those under the Patricia Roberts Harris Fellowship, 20 U.S.C. sec. 11 34d-g, and the Women and Minorities in Graduate Education Program, 20 U.S.C. sec. 1 134a) target minorities in graduate education. The Department of Agriculture gives preferences to "socially disadvantaged" persons in the sale of farm properties and sets aside loan funds for farmers in this group. The Department of the Treasury administers a "minority-owned bank deposit" program in which designated banks receive special consideration to act as depositary institutions holding cash for federal agencies, so long as no increased cost or risk results to the government. The Department of Transportation gives preferences to small businesses owned and controlled by socially and economically disadvantaged individuals in Department of Transportation- assisted contracts.
The Clinton Administration has placed substantial emphasis on increasing educational opportunities for minorities in the United States. For instance, the Hispanic Education Action Plan is designed to provide targeted assistance to raise the educational achievement of Hispanic students and to close the achievement gap. The Plan incorporates a number of other programs, such as the State Agency Migrant Program and "GEAR UP."
Enacted in 1998 and administered by the Department of Education, GEAR UP funds partnerships of high-poverty middle schools, colleges and universities, community organizations, and businesses. The partnerships provide tutoring, mentoring, information on college preparation and financial aid, an emphasis on core academic preparation, and, in some cases, scholarships. In its first year, GEAR UP is serving nearly 450,000 students nationwide. Over 1,000 organizations are GEAR UP partners, including colleges and universities, libraries, arts organizations, local chambers of commerce, the YMCA, Boys and Girls Clubs, Wal-Mart, Unisys, and the New York Times Education Program. In the upcoming year, GEAR UP is expected to serve over 750,000 students.
The U.S. Small Business Administration (SBA) administers several programs that could be considered "special measures' under article 2(2):
The 8(a) Business Development Program and the Small Disadvantaged Business Certification and Eligibility Program (SDB Certification Program) assist small businesses owned and controlled by one or more individuals determined by SBA to be socially and economically disadvantaged. Socially disadvantaged individuals are those who have suffered chronic and substantial discrimination during their education, employment or business operation as a result of their membership in a particular group of people, rather than as a result of their individual characteristics. While people in certain minority ethnic groups are presumed to be socially disadvantaged, others who individually prove their social disadvantage also meet this criterion. The reasons cited for discrimination against individuals not in presumed groups include, in part, gender, age and disabilities. A finding of individual social disadvantage must also be related to unequal business opportunities as a result of discrimination suffered.
Another criterion the SBA reviews is the economic net worth of the disadvantaged owners. Net worth, after exclusion of an individual's equity in his or her primary residence and the applicant business, may not exceed $250,000 and $750,000, respectively, for the 8(a) Business Development
Program and the Small Disadvantaged Business (SDB) Certification Program.
The 8(a) Program offers a broad scope of assistance to the socially and economically disadvantaged firms, including both business development assistance and eligibility for set-aside federal contracts. The 8(a) Program, which has been in existence since 1969, has become an essential instrument in helping socially and economically disadvantaged entrepreneurs gain access to the economic mainstream of American society. SBA has helped thousands of aspiring entrepreneurs over the years gain a foothold in government contracting. Participation is divided into two phases over nine years: a four-year developmental stage and a five-year transition stage. In fiscal year 1998, more than 6,100 firms participated in the 8(a) Program and were awarded $6.4 billion in Federal contracts.
While the 8(a) and the SDB Certification Programs are, perhaps, SBA's most recognized programs, additional agency initiatives have been developed making business opportunities and economic independence a reality to minorities heretofore denied access to the mainstream economy. In 1997, the SBA began its Welfare to Work Initiative to link small business owners looking for job- ready workers with organizations that train welfare recipients and provide entrepreneurial training to those who wish to start their own businesses. The goal was 200,000 pledges to hire job-ready welfare recipients and/or provide entrepreneurial training. The Initiative has been very successful, with the latest number of pledges and training reaching more than 215,000. Most of the recipients were either socially or economically disadvantaged or both, with minorities overwhelmingly represented.
Another SBA Initiative reaches out to the Native American community to help combat a history of being discriminated against as a result of maintaining ties to a traditional lifestyle. One of the primary responsibilities of SBA's Office of Native Affairs, in partnership with SBA's Office of Business Initiatives, is to support and manage seventeen Tribal Business Information Centers (TBICs). TBICs are partnerships between SBA and Native American Tribes or Tribal Colleges and are located in seven states (Arizona, California, Montana, Minnesota, North Carolina, North Dakota and South Dakota). They offer access to up-to-date technology and resources libraries as well as practical, culturally appropriate guidance at accessible reservation locations. In 1999, the TBICs provided entrepreneurial development assistance to 3,951 clients, provided 8,433 hours of counseling, held 291 workshops, assisted in the completion of 196 business plans and 136 loan applications, and were instrumental in the start-up of 212 new businesses.
Individuals experiencing racial discrimination or social and economic discrimination are often located in distressed areas. SBA's One Stop Capital Shops target these areas of high unemployment and pervasive poverty whose inhabitants are usually members of minority groups. SBA's One Stop Capital Shops provide a broad range of services to these highly underutilized business zones (HUB Zones) and Empowerment Zones including credit counseling and business development assistance. In 1999, One Stop Capital Shops served over 53,000 clients, including 18,000 Hispanic and 12,000 Black clients. Government assistance through the use of incentives to revitalize these "New Markets" areas is essential to break down continuing decay and offer hope for economic growth and prosperity for residents of these communities.
The elimination of racism and discrimination takes more than outreach to those experiencing this form of prejudice. There must also be outreach to the established institutions to assist in bringing about change. The SBA Office of Capital Access has been working with lenders participating in the 7(j) Small Business Loan Guaranty Program and the Microloan Program. By targeting non-bank lenders who have a more accommodating posture towards the small business market, particularly lenders who are located in or near economically distressed areas, SBA expects to facilitate an increase in the number of minority, low-income, and women small business borrowers. In addition, this effort will promote further economic revitalization and development in low and moderate-income communities and rural area across the United States.
Illustrative proof is the Microloan program, where nonprofit organizations have been making SBA-guaranteed micro-loans from under $100 to $25,000 to women, low income individuals, minority entrepreneurs and other small businesses that need small amounts of financial assistance. Nonprofit organizations have also served as intermediaries to assist women borrowers in developing viable loan application packages and securing loans.
In general, the proper goal of affirmative action programs - such as those described above - is to promote equal opportunity by ensuring every person a fair chance to achieve success. Affirmative action measures recognize that existing patterns of discrimination, disadvantage and exclusion that are the remains of a race-conscious system of exclusion may require race-conscious measures to achieve real equality of opportunity. As a matter of law and policy, they may not create any form of "quotas" or "numerical straightjackets," nor may affirmative action policies give preference to unqualified individuals, place undue burdens on persons not beneficiaries of the affirmative action programs or continue to exist or operate after its purposes have been achieved.
The exact line between permissible and impermissible affirmative action measures has been one of the most difficult issues in U.S. law, and it has not been static. See, e.g., Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995); Metro Broadcasting, Inc. v. FCC, 497 U.S. 647 (1990); City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989); Regents of University of California v. Bakke, 438 U.S. 265 (1978). In Croson, the Supreme Court held that state affirmative action plans challenged under the Constitution would be held to strict judicial scrutiny, i.e., courts would evaluate the program to determine whether there was a compelling governmental interest in the program's use of race and whether that use was narrowly tailored to meet this interest. Six years later, in Adarand, the Court held that that same standard of "strict scrutiny" would apply to federal affirmative action plans. This is a more demanding test than had previously been applied to federal affirmative action programs, and it has prompted a searching analysis and re-evaluation of many such programs.
Affirmative action in elementary and secondary school admissions as well as in college and university admissions has been a subject of contention; especially where the use of race is in the non- remedial context. However, language in several Supreme Court cases supports a school district's compelling interest in ensuring that children of different races attend school together. See, e.g., Brown v. Board of Education, 347 U.S. 483, 493 (1954); Washington v. Seattle School District No. 1, 458 U.S. 457, 472 (1982); Swann v. Board of Education, 402 U.S. 1, 16 (1971); North Carolina Board of Education v. Swann, 402 U.S. 43, 45 (1971). In the higher education context, a majority
of the Court in Regents of the University of California v. Bakke, 438 U.S. 265, 320 (1978), reversed a lower court decision and found that a university could employ race-conscious measures even though it had not engaged in prior de jure segregation. Indeed, it is the government's position that the educational benefits that flow from a diverse student body can be achieved through the narrowly tailored consideration of race in admissions. Some critics argue that such practices violate the Fourteenth amendment's guarantee of equal protection and have called for an end to the consideration of race in university admissions. In 1995, the University of California's Board of Regents voted to prohibit universities within its state-wide system from considering race in admissions. The California Civil Rights Initiative, known as Proposition 209, prohibits the State from considering race or gender in State employment, public contracting or education program. Also in Texas v. Hopwood, 78 F.3d 932 (5th Cir.), cert. denied, 518 U.S. 1033 (1996), the Fifth Circuit Court of Appeals held that race could not be used as a factor in the admissions process for the University of Texas Law School.
Dspite Proposition 209 and the Fifth Circuit's decision in Hopwood, the United States government has consistently argued that the Constitution and Title VII allows for the narrowly tailored consideration of race in elementary and secondary school and university admissions, either to support a state's compelling interest in diversity or in remedying past discrimination. Ultimately, the U.S. Supreme Court will resolve this issue.
Moreover, the responsibility of states and local school districts to provide appropriate services to children with limited English proficiency is now well established in the law.
The landmark decision in Lau v. Nichols, 414 U.S. 563 (1974), which is based on Title VI of the Civil Rights Act of 1964, requires that school officials take action to provide limited English proficient students appropriate services to permit meaningful participation in the district's educational program. The Equal Educational Opportunities Act of 1974 also requires that states and school districts take appropriate action to overcome language barriers that impede equal participation in the instructional program. However, no particular educational methodology is mandated to come into compliance with these laws. For example, transitional bilingual education is one model that is employed by some school districts, other districts rely on English as a Second Language techniques.
This flexible approach, is supported by the United States: school districts should employ methodology that is supported by educational research, implement fully their programs, and evaluate them in practice. Recently, however, California has restricted to some extent the flexibility of school districts to make determinations regarding the methodology they wish to employ. Proposition 227, enacted in 1998, requires that limited English proficient students be placed in an English immersion program, unless parents seek waivers and seek a transitional bilingual program. A referendum initiative in Colorado also seeks to limit transitional bilingual education.
The Department of Justice recently intervened in a lawsuit in Denver, Colorado in which the adequacy of the school district's English language acquisition program was at issue. A settlement was reached under which a flexible program was approved by the court that relies on both foreign language instruction and English language development techniques.
With regard to Native Americans, in Morton v. Mancari, 417 U.S. 535 (1974), the U.S. Supreme Court upheld a statutory Indian preference for hiring by the Bureau of Indian Affairs. The Court relied upon the statute's purpose in aiding Indian self-government and rejected the claim of unconstitutional discrimination stating that "[t]he preference is not directed towards a racial group consisting of Indians; instead, it applies only to members of federally recognized tribes . . . [and i]n this sense, the preference is political rather than racial in nature." This distinction between a preference based on the political nature of Indian tribes, as opposed to race, has been and remains a fundamental legal principle supporting the unique relationship between the federal government and Indian tribes.
In recent years, there has been extensive public debate over the concept of so-called "reverse discrimination," focusing on whether affirmative action programs are unfair to persons who do not benefit from those programs. There have been a number of legislative proposals and state referenda designed to limit the use of affirmative action programs to remedy past discrimination and achieve diversity in employment and education, as well as several judicial challenges. Examples include Maryland Troopers Ass'n v. Evans, 993 F.3d 1072 (4th Cir. 1993) (holding that Maryland State Police discriminated against non-Blacks by complying with the terms of a court-ordered consent decree which was held to violate 14th Amendment and Title VII) and Hopwood v. Texas, 84 F.3d 720 (5th Cir. 1996), cert. denied, 518 U.S. 1033 (1996) (holding that University of Texas School of Law could not use race as a factor in its admissions decisions when White applicants with higher test scores than minority applicants were denied admission).
In 1995, following the Supreme Court's decision in Adarand, the President ordered a thorough Executive Branch review of the Federal government's affirmative action programs to ensure that these programs satisfied the Court's newly articulated legal standard. While finding "undeniable progress in many areas," the report concluded, not surprisingly, that "widespread discrimination and exclusion - and their ripple effects - continue to exist" and that the various affirmative action programs should therefore be continued and improved. As a result, some programs were discontinued, and the method of implementation of others was changed.
The federal government, in fact, made substantial changes in the way all agencies use affirmative action in federal contracting. Those changes ensure that race-conscious action in federal contracting is used only where there is demonstrable proof that the effects of racial discrimination continue to hinder minority-owned businesses.
The United States is hopeful that the changes made to federal affirmative action programs will demonstrate not only to federal courts, but also to state and local governments that choose to use these programs, how they can be developed in a manner that satisfies Constitutional scrutiny. Indeed, in reviewing the first challenge to changes to federal contracting provisions, a court held that the program satisfied the Constitution. The United States continues to believe that affirmative action plays an essential role in ensuring that economic and educational benefits are offered equally to all people in the United States, and that those programs can be developed in a way that is fair to all.
This debate will continue. It is the United States' view that its obligations under the Convention do not preclude adoption and implementation of appropriately-formulated affirmative
action measures consistent with U.S. constitutional and statutory provisions.
