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NGO Shadow Reports Under the U.N. Convention on the

Eliminationof All Forms of Racial Discrimination

September 2005U.S. Racial Discrimination Program

DRAFT COPY

In

the spirit of the United Nations’ encouragement of collective efforts at the international level(Resolution 49/184), this manual is placed in the public domain and put at the disposal of all interested persons to consult it or use it. Reproduction is authorized provided that the text is for educational ends not commercial use and on the condition that credit is given to the publisher.

The opinions, findings, and conclusions or recommendations expressed in this publication are those of Global Rights.

Global Rights © September 2005

GLOBAL RIGHTS is a human rights advocacy group that partners with localactivists to challenge injustice and amplify new voices within the global discourse. With offices in countries around the world, we help local activists create just societies through proven strategies for effecting change.

We seek justice for victims of human rights abuses.

We work to promote racial and gender equality and help people and communities feel empowered to change their societies.

We work through field offices in Asia, Africa, Latin America, Europe, and in the United States, partnering with local human rights advocates to strengthen their effectiveness in combating abuses in their countries

We focus on developing the skills of local activists that are essential to addressing human rights concerns and promoting justice such as: documenting and exposing abuses, conducting community education and mobilization, advocating legal and policy reform in countries and internationally, and using the courts to increase access to justice for disadvantaged populations.

We help local activists to engage with the international community, including the United Nations, to further their human rights objectives at home.

www.globalrights.org

TABLE OF CONTENTSI. INTRODUCTION............................................................................................1II. WHAT IS THE ICERD?..................................................................................3

A.History and Key Features of the Treaty.....................................................3B.Reservations, Understandings, and Declarations......................................4C.Particular Benefits of ICERD for U.S. Activists............................................4

III. THE COMMITTEE AND THE REPORTING PROCESS.......................................5A.The Committee..........................................................................................5B.General Recommendations........................................................................5C.Requirements for Country Reports and Procedures...................................8D.Objectives of State Party reports...............................................................9E. Prior U.S. Reports and Recommendations...............................................10

(1) The U.S. Report.............................................................................10(2) The Committee’s Concluding Observations...................................10

IV. THE SHADOW REPORTING PROCESS........................................................12A.First Steps................................................................................................12

(1) Identification of Issues...................................................................12(2) Identification of Advocacy Goals....................................................12(3) Identification of Advocacy strategies.............................................13

B.Drafting the Shadow Report....................................................................15(1) Describe the human rights situation..............................................15(2) Identify the key article(s) of the treaties........................................15(3) Identify current laws and the government’s implementation record

16(4) Identify obstacles to achieving full implementation of the treaties

16(5) Recommendations.........................................................................17(6) Submission of the report to the CERD............................................18

C.Engaging the Committee.........................................................................19(1) Lobbying Strategy..........................................................................19(2) Beyond the Committee: Accountability and Follow Up..................20

V. OTHER CONSIDERATIONS IN SHADOW REPORTING..................................22VI. CONCLUSION...........................................................................................24VII. USEFUL INFORMATION SOURCES.............................................................25APPENDIX 1: NGO SHADOW REPORT: A SAMPLE...........................................26APPENDIX 2: U.S. RESERVATIONS, UNDERSTANDINGS, DECLARATIONS.......41APPENDIX 3: SAMPLE PRESS RELEASE...........................................................47

Draft version: NGO Shadow Reports under theU.N. Convention on the Elimination of All Forms of Racial Discrimination

I. INTRODUCTION

The purpose of this guide is to assist U.S.-based nongovernmental organizations (NGOs) in the shadow reporting process under one of the three main human rights treaties ratified by the United States: the International Convention for the Elimination of All Forms of Racial Discrimination (ICERD).1 The shadow reporting process plays a critical role in monitoring the implementation of human rights treaties and ensuring the full protection of all peoples’ rights under those treaties. In particular, shadow reports provide the treaty monitoring bodies with accurate and appropriate information documenting a government’s human rights record from a civil society perspective.

Human rights treaties such as the ICERD require those countries that ratify the treaties (State Parties) to submit regular reports to the bodies that monitor implementation of the treaty obligations. These reports are intended to detail the steps that State Parties have taken, and plan to take, to implement and safeguard the rights contained in the treaties. Not surprisingly, State Parties tend not to be entirely forthcoming about possible or alleged violations of the treaty obligations. The practice of shadow reporting has evolved in response to the need for alternative sources of information concerning state compliance,

The term “shadow report” refers to reports created by NGOs that parallel, analyze, and supplement the report created by the government. In addition to assessing the government’s record in protecting human rights, an underlying purpose of preparing a shadow report is to strengthen the advocacy capacity of NGOs. Shadow reports provide a concrete tool for:

(1)assessing and describing a government’s track record in fulfilling its obligations to promote and protect human rights;

(2)monitoring governmental actions to honor commitments made through treaty ratification as well as at international conferences on human rights;

(3)building political pressure through publicity and education; and(4)providing examples of “Best Practices” for NGOs to share with the

domestic and international community.The treaty reporting process functions only as well as the information which it produces, and the role that NGOs play in educating the expert members of the treaty bodies is critical. NGOs working at the national and local levels are urged to consider this exchange of information as an integral part of their mandates.

1 The other two human rights treaties ratified by the U.S. are the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT).

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Draft version: NGO Shadow Reports under theU.N. Convention on the Elimination of All Forms of Racial Discrimination

Of course, drafting a shadow report is not a simple task. It requires thoughtful analysis, strategic planning, collaboration with allies, and the actual drafting of the report, all of which can be extremely time-consuming. However, the production of shadow reports are one important step in the broader movement to hold the U.S. government accountable under international human rights law. Only by monitoring the government’s compliance with its treaty obligations, and by publishing an assessment of its successes and failures, can U.S. organizations hope to pressure the government to be a more effective guarantor of the human rights of all people in the U.S.

In 2004, the U.S. State Department declared its intentions to submit all of its compliance reports to the international human rights treaty bodies in 2005. The report to the Committee against Torture was formally submitted in May 2005, but as of September 25 (2005), neither the ICCPR report nor the ICERD report has been filed.

Global Rights is issuing this guide as a resource for U.S. organizations interested in participating in the shadow reporting process for the ICERD, and we can be contacted for further information at:

ATTN: U.S. Racial Discrimination ProgramGlobal Rights

1200 18th Street, NW, Suite 602, Washington DC 20036

Tel. 202 822 4600, Fax. 202 822 4606Email: [email protected]

www.globalrights.org

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Draft Version: NGO Shadow Reports under theU.N. Convention on the Elimination of All Forms of Racial Discrimination

II. WHAT IS THE ICERD?

A. History and Key Features of the Treaty

The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD or “the Convention”) was adopted by the unanimous consent of the General Assembly of the United Nations in December 1965 and went into force in 1969. Like the other treaties of the United Nations, ICERD is rooted in the Universal Declaration on Human Rights which was adopted by the U.N. in 1948 and covers the range of fundamental civil, political, economic, social and cultural human rights. ICERD provides a framework in which to assess the extent to which a government is upholding the right to equality and the right to freedom from racial discrimination.

The U.S. signed the Convention in 1966, but it was not transmitted to the Senate for its Constitutionally-required “advice and consent” until 1978, and the U.S. only ratified the ICERD in 1994. This delay of almost thirty years in ratification is attributable to many sources, ranging from general resistance to international scrutiny of U.S. practices, to the politics of the Cold War, to lingering racism in the U.S. resulting in resistance to the goals of ICERD itself. These factors combined in a manner such that the civil rights movement in the U.S. was forced to divorce itself from the international human rights movement, for fear of being labeled Communist for many years. Only with the fall of Communism in the late 1980s did civil rights groups begin returning to the opportunities of the international system, leading to the 1994 ratification. Still, this legacy lingers today, as many groups are unaware of the possibilities ICERD holds.

ICERD obligates states to review policies and legislation for racial discrimination in both purpose and effect (regardless of intent). This aspect of the Convention is particularly useful in addressing the issue of the racially disparate impacts of policies and legislation. The definition of racial discrimination in ICERD is as follows:

any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. (Article 1.1).

Significantly, ICERD allows for and, in some cases, requires positive measures such as affirmative action in order to redress racial inequalities (Article 1.4).

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The treaty monitoring body established under ICERD is called the Committee for the Elimination of Racial Discrimination (CERD). Since 1972, with authority under Article 8, CERD has issued thirty-one General Recommendations as a means of clarifying the objectives and scope of ICERD.2 The full list of CERD’s General Recommendations can be found at: http://www.ohchr.org/english/bodies/cerd/comments.htm

B. Reservations, Understandings, and Declarations

When ratifying and sometimes signing human rights treaties, governments can make Reservations, Understandings and Declarations (RUDs). In making a Reservation, a government makes a statement in which it redefines its obligations under specific treaty provisions. A reservation cannot be accepted if it is expressly prohibited by the treaty or is incompatible with the object or purpose of the treaty. For example, while the ICERD contains prohibitions on hate speech, the U.S. has made a reservation to the treaty that states the protections of the ICERD go only as far as the Constitution’s protections of free speech will allow. With an Understanding, a government provides its interpretation of an ambiguous provision within a treaty, so saying that it accepts the treaty only with that understanding. For example, the U.S. made an understanding to the ICERD, stating that while the federal government has ultimate responsibility under the treaty, many of its mandates would have to be implemented by state and local governments. With a Declaration, a government defines its intent as to how it will implement the treaty. The U.S. Declarations to all the human rights treaties to which it is party, for example, state that the treaties are non self-executing which means that they are not accepted as part of U.S. domestic law and individuals are not allowed to take cases to U.S. courts under the treaties. Unlike a Reservation, a Declaration should not alter a government’s obligations under the treaty.

The U.S. government’s RUDs to the ICERD, as well as to the other human rights treaties ratified by the U.S., are attached to these guidelines in Appendix 2.

C. Particular Benefits of ICERD for U.S. Activists

There are several advantages offered by the ICERD to U.S. activists. First, the Convention’s definition of racial discrimination, which includes both intentional discrimination and disparate impact, is broader than that found in most domestic law. Under the ICERD, those laws that have a racially

2 For example, General Recommendation 25 (March 2000) addresses the importance of taking into account gender factors or issues which may be inter-linked with racial discrimination.

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discriminatory impact (such as the disparate sentencing guidelines for those convicted of cocaine possession vs. those convicted of crack cocaine possession), even if not intended, are illegal.

Second, the Convention specifically allows for affirmative action, and in fact requires it under some circumstances. Contrary to some U.S. policies, the ICERD requires that “States Parties shall, when the circumstances so warrant, take… special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals… for the purpose of guaranteeing them the full and equal enjoyment of human rights… .”

Third, by its own wording and as reaffirmed through the U.S.’s RUDs, ICERD’s reach extends to federal, state, and local policies. Thus, the local school district, the district attorney, the state legislature, and Department of Homeland Security are all equally responsible for upholding the obligations of the ICERD.

Finally, as will become clear throughout this manual, ICERD’s review of the U.S. government’s implementation record enable activists to shine an international spotlight on issues that the government would rather sweep under the rug. Through effective international advocacy and domestic media outreach, the potential for a shadow report to galvanize public interest around an issue is high.

III. THE COMMITTEE AND THE REPORTING PROCESS

Once a government ratifies a human rights treaty, it becomes a State Party to the treaty. One of its obligations is to submit periodic reports on treaty compliance and to send representatives to answer questions during the treaty body’s review of its report.

A. The Committee

The treaty bodies are comprised of independent experts who are first nominated by States Parties from a list of persons of high moral standing and competence from all regions of the world. The experts are then elected to four-year terms by secret ballot of the States Parties. As noted above, the treaty body for the ICERD is known as the Committee on the Elimination of Racial Discrimination, or CERD. CERD is comprised of eighteen experts who serve voluntarily in their personal capacities (they are not compensated, they are not full-time, and they are not the political representatives of the nations that nominated them).3 CERD is currently chaired by an 33 Global Rights’ Executive Director, Gay McDougall, previously served as a member of CERD (1998 – 2002). Experts serve four-year terms. CERD, articles 8(1), 8(2), 8(5)(a).

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Argentinean, Mario Jorge Yutzis. The U.S. national on the Committee is Ralph F. Boyd, Jr., the executive vice-president and general counsel of Freddie Mac and former Assistant Attorney General for Civil Rights under President George W. Bush. The full list of the current expert members of CERD can be found at: http://www.ohchr.org/english/bodies/cerd/members.htm.

B. General Recommendations

In addition to reviewing country reports, the treaty bodies also examine issues thematically through what are known as General Comments or General Recommendations.3 CERD’s General Recommendations are constantly elaborating on the content of the rights protected by the treaty based upon, but going beyond, the language present in the treaty itself. In these Recommendations, CERD lays forth its authoritative interpretation of states’ obligations under the treaty. CERD has issued thirty-one General Recommendations. These range from broad outlines for state policy to specific recommendations for action. The elaborations in the General Recommendations can provide useful grounding for holding the government accountable to specific obligations. Below are a few non-exhaustive samples from General Recommendations with particular import for U.S. activists. All the General Recommendations can be found, in searchable format, at http://www.unhchr.ch/tbs/doc.nsf.

General Recommendation

Subject References of Importance to U.S. Activists

XV Organized violence based on ethnic origin

CERD notes that “the prohibition of the dissemination of all ideas based upon racial superiority or hatred is compatible with the right to freedom of opinion and expression.” This is contrary to the constitutional view in the U.S., embodied in its reservation, that preserves free speech above its obligations to stop the promotion of racial hatred.

XIX Racial segregation and apartheid

Remarks on the fact that the prohibition on segregation and apartheid includes the requirement to eradicate the consequences of earlier apartheid situations, such as existed during slavery in the U.S. Moreover, the

3 CERD refers to these official statements as "General Recommendations" whereas several of the other treaty bodies refer to them as "General Comments".

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Recommendation also notes that segregation can occur even without direct government direction, as in residential segregation patterns, and that States are obligated to monitor and remedy this effective segregation as well.

XXII Rights of refugees and displaced persons

May be of particular relevance to those in areas struck by Hurricane Katrina. This recommendation emphasizes that all such refugees and displaced persons have the right freely to return to their homes of origin under conditions of safety; All such refugees and displaced persons have, after their return to their homes of origin, the right to have restored to them property of which they were deprived in the course of the conflict and to be compensated appropriately for any such property that cannot be restored to them. Any commitments or statements relating to such property made under duress are null and void; and All such refugees and displaced persons have, after their return to their homes of origin, the right to participate fully and equally in public affairs at all levels and to have equal access to public services and to receive rehabilitation assistance.

XXIII Rights of indigenous peoples

The Committee affirms Indigenous Peoples fall under the mandate of ICERD. The Recommendation requires that States, among other things, Provide indigenous peoples with conditions allowing for a sustainable economic and social development compatible with their cultural characteristics; Ensure that members of indigenous peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent; and in particular to recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return those lands and territories.

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XXV Gender related dimensions of racial discrimination

CERD notes that States are under special obligation to address these problems, both in practice and in their reporting to the Committee. NGOs should take heed of this Recommendation in their reporting on the multiple, overlapping discriminations faced by women of color in the U.S.

XXX Rights of non-citizens

Especially important in the post-9/11 context, CERD demands among other things “that any measures taken in the fight against terrorism do not discriminate, in purpose or effect, on the grounds of race, colour, descent, or national or ethnic origin and that non-citizens are not subjected to racial or ethnic profiling or stereotyping”; and moreover that states take “resolute action to counter any tendency to target, stigmatize, stereotype or profile” by actors including politicians and the media.

The Committee also requests states to “Combat ill- treatment of and discrimination against non-citizens by police and other law enforcement agencies and civil servants by strictly applying relevant legislation and regulations providing for sanctions and by ensuring that all officials dealing with non-citizens receive special training, including training in human rights.” In addition, in contrast to the recent Supreme Court decision in Hoffman Plastics, the Committee recommends States “Recognize that, while States parties may refuse to offer jobs to non-citizens without a work permit, all individuals are entitled to the enjoyment of labour and employment rights, including the freedom of assembly and association, once an employment relationship has been initiated until it is terminated.”

XXXI Race and the Criminal Justice System

Urges the collection of disaggregated data to determine whether or not certain racial groups are targeted by the criminal justice system. Also calls for the elimination of laws that have a racially discriminatory impact and for human rights training for law enforcement officials and judicial authorities. Finally, there are several recommendations regarding arrest,

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pre-trial detention, prosecution, and execution of sentences.

C. Requirements for Country Reports and Procedures

State Parties are required under each of the treaties to send a formal, written report on the steps the national government has taken, and proposes to take, to comply with the obligations in the treaty. Under ICERD, for example, State Parties are obligated to submit such a report within one year after ratification of the Convention, and then a comprehensive report every four years, with brief interim reports every two years. Additionally, CERD may request supplemental reports. If a State Party fails to submit a report within a period of five years, CERD has the discretion to review the State Party, in the absence of a State Party report and without the presence of government representatives. The U.S. ratified ICERD in 1994 and submitted its first report to CERD in September 2000, which comprised its overdue first, second and third periodic reports. Its most recent report to the CERD was due November 20, 2003, which the government has to date failed to submit.

In the U.S., the treaty reporting process is coordinated through the Office of the Legal Adviser at the State Department.

Contact: Robert K. HarrisAssistant Legal Adviser for Human Rights and Refugees2201 C St, NW Room 3422Washington, DC [email protected]

Once a State Party has submitted its report, the report will be translated into all of the official U.N. languages and put on the agenda of the following treaty body meeting for scheduling a review. Normally, reports are reviewed as soon as possible after they are received, often within a year of submission. CERD meets twice a year, in February-March and August, for three-week sessions at the United Nations Office in Geneva.

Each country is assigned a Country Rapporteur on the treaty body, who oversees that particular country’s report through the review process. The Country Rapporteur should be the person to contact with substantive information regarding the U.S. government’s compliance with the treaty. For

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questions regarding the scheduling of the review and any NGO activity around the report, such as the deadline for submitting shadow reports or the date for the NGO briefing with treaty members, the person to contact is the staff person for the Committee.

At the United Nations, the secretariat for the Committee on the Elimination of Racial Discirmination is:

Nathalie ProuvezEmail: [email protected]

Once the government’s report has been received, the Committee will usually prepare a list of questions based on the report for the government to answer at its hearing. These questions are generally presented at the Committee session prior to the session where the government will have its hearing, to allow the government time to research and formulate its response. The preparation of these questions provides another opportunity for NGO input, as groups can give background information to the Committee and draft sample questions focusing on their issues of particular concern. Often, the Committee will host both formal and informal meetings with NGOs at the session before the review to facilitate this discussion.

During the formal review of the government report, the State Party is required to send representatives to the meetings where the Committee asks further questions, receives the government’s response, and makes comments on the sufficiency of the steps the government has taken to implement the treaties. The Committee will also make recommendations regarding the areas that the government should focus on and how to make improvements. The review usually takes place over a two-day period, with the State Party presenting its report and fielding initial questions and commentary on the afternoon of the first day, and then answering more questions and hearing concluding observations from the Committee on the second morning. A summary of this “constructive dialogue’’ between the treaty body and the State Party is published by the U.N. This summary, including the specific concerns and recommendations, is generally known as the “Concluding Observations” and should be made available to NGOs by the State Party. Another source for obtaining the Concluding Observations is the U.N. High Commission on Human Rights document search website (http://www.unhchr.ch/tbs/doc.nsf).

D. Objectives of State Party reports

The requirement that all governments submit regular reports to the treaty bodies is premised on two assumptions. First, every government — no matter how well intentioned — is an actual or potential violator of human

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rights. As a result, regular international accountability is in the best interests of the State itself, of its citizens, its residents and of the international community.4 Second, several States have implemented successful programs, often referred to as “best practices”, that should be shared with the global community. Among the objectives of reporting are:

Achieving a comprehensive review of local and national legislation, administrative rules, procedures, and practices;

Ensuring that State Parties regularly monitor the actual situation with respect to each provision of the Convention, so that they are aware of the extent to which all citizens enjoy all rights guaranteed by the treaties;

Highlighting the best practices in various jurisdictions, so that others may learn from and implement similar programs;

Providing State Parties with the basis on which to further develop clearly stated and targeted policies, which incorporate priorities consistent with the provisions of the Conventions;

Permitting local agencies and the public to scrutinize national government policies and encouraging the involvement of various sectors of society in the formulation and review of these policies;

Providing a benchmark against which State Parties and the treaty bodies can evaluate the extent to which progress has been made towards the realization of the obligations established under the treaties;

Enabling State Parties themselves to develop a better understanding of the problems and shortcomings encountered in the progressive realization of the treaties’ aims; and

Enabling the Committees and the State Parties as a whole to exchange information, develop a better understanding of the common problems faced by States, and a fuller appreciation of the types of measures which might be taken to promote effective realization of the treaties’ obligations. This enables the Committees to identify the most appropriate means by which the international community might assist State Parties.

E. Prior U.S. Reports and Recommendations

4 Philip Alston, “The Purposes of Reporting,” Manual on Human Rights Reporting. U.N. Centre for Human Rights and U.N. Institute for Training and Research, HR/PUB/91/1, p. 13.

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The U.S. report submitted in 2000 was largely limited to outlining the government As noted earlier, the United States has only submitted one previous report to the CERD in November 2000. The Committee formally reviewed the U.S. report in August 2001.

(1) The U.S. Report

The U.S. report submitted in 2000 was largely limited to outlining the government’s response to racial discrimination at the federal level, with the understanding that future reports would address state and local practices more in depth. To its credit, the report acknowledges a long history of discrimination, both de jure and de facto, against a broad range of minorities in the U.S., and contains a comprehensive list of the federal laws and agencies designed to combat it. However, to some extent, the report merely lists these laws and agencies, but does not probe deeper in to the question of how well they are accomplishing their goals. The report rests on the laurels of existing laws, essentially saying the government’s obligation to combat racial discrimination has been met despite the fact that de facto discrimination continues to exist. Moreover, many of the protections the report outlines have in fact been rolled back over the years since the issuance of the report. The report can be found at: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CERD.C.351.Add.1.En?Opendocument.

(2) The Committee’s Concluding Observations

CERD’s Concluding Observations welcomed the frank discussion of discrimination in the U.S.’s report and several of the laws and initiatives designed to combat discrimination. However, CERD had numerous concerns regarding implementation of the treaty. These concerns include:

the absence of specific legislation implementing the provisions of the Convention in domestic laws;

the RUDs entered at the time of ratification of the Convention, especially regarding the prohibition of dissemination of all ideas based upon racial superiority or hatred as compatible with the right to freedom of opinion and expression;

the view that much private conduct is outside the government’s control;

the lack of government review of practices and legislation that may not be discriminatory in purpose, but are in their effect;

the incidents of police violence and brutality which particularly affects minority groups and foreigners;

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the disproportional rates of incarceration and capital punishment of minorities, with a special request that the U.S. ensure that the high incarceration rate is not a result of the economically, socially and educationally disadvantaged position of these groups;

felony disenfranchisement as an effective tool for racial disenfranchisement;

the equal enjoyment of economic, social and cultural rights, including persistent disparities in the enjoyment of, in particular, the right to adequate housing, equal opportunities for education and employment and access to public and private health care, with recommendations for affirmative action to remedy this discrimination;

the fact that treaties signed by the Government and Indian tribes can be abrogated unilaterally by Congress and that the land they possess or use can be taken without compensation by a decision of the Government;

the absence of data regarding racial discrimination in federal and state prisons and jails, with special invitation to provide, in its next report, information and statistics on complaints and subsequent action taken in this field;

a further recommendation that the next report contain socio-economic data disaggregated by race, ethnic origin and gender on, in particular: i) the indigenous and Arab-American population, and ii) the populations of the States of Alaska and Hawaii.

The full text of the CERD’s concluding observations on the U.S. report filed in 2000 can be found at:http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/A.56.18,paras.380-407.En?Opendocument.

NGOs should review the last U.S. report and the Concluding Observations from the CERD in order to see what promises the government may have made and what specific concerns the Committee raised. NGOs should also review the Concluding Observations of other U.N. Committees which have reviewed the U.S. government (CAT and HRC), regardless of which Committee it is reporting to, incorporating relevant comments from other Committees into its shadow report. Links to each of the Concluding Observations by the various Committees can be found in the resources section below. NGOs may also find it helpful to look at other country reviews in order to get a sense of how the Committees analyze issues and the types of recommendations they generally make to governments.

IV. THE SHADOW REPORTING PROCESS

A. First Steps

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http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/A.56.18,paras.380-407.En?Opendocument



Although the treaties themselves make no explicit provision for NGO input, treaty committees need independent information from which to formulate their questions and identify the areas where State Parties are not fully complying with their obligations. Despite the lack of a specific provision for NGO reports, the treaty bodies are not only accessible to NGOs and eager to receive their information, but also encourage participation by NGOs in the preparation of the official national government reports. The reports submitted by NGOs are given the name “shadow reports.” The treaty bodies welcome NGO participation as an opportunity for exchange between government and civil society. The process also helps in identifying and addressing areas of concern and obstacles to implementation of the treaties.

There are two main opportunities for NGO intervention in the review process: at the session where the governments receive questions from the Committee on its report, and at the session where the Committee conducts its full review of the State party. At each point, NGOs can make both oral and written submissions: in the form of suggested questions with short background for the session where the questions are presented, and then the full shadow report before the session with the full government hearing. The below described drafting process focuses on the drafting of the shadow report itself, however, many of the points are equally applicable to drafting the shorter list of questions as well.

(1) Identification of Issues

One of the initial steps in preparing a report is to decide what are the key issues that NGOs would like to draw to the treaty body’s attention. The provisions of ICERD are applicable to a myriad of issues including: hate crimes, criminal justice, worker rights, affirmative action, health care policy, voter rights, hate speeches, housing discrimination, employment discrimination, and environmental justice. In particular, NGOs should remember that ICERD addresses the need for governments to regularly review policy for both purpose and effect; and to implement programs of affirmative action where necessary to guarantee human rights and fundamental freedoms.

There is no right or wrong approach to writing a shadow report. The decision as to what type of shadow report should be submitted is an important strategic point for NGOs to consider. While many domestic issues are ripe for review as international human rights abuses, not necessarily all may be, and it may help your cause to be selective in your presentation of issues.

It is important for NGOs to keep in mind that the Committee has limited time and ability to read the information it receives. It is suggested that reports do not exceed 10 – 15 pages in length, although appendices may be used if copies of laws or additional documentation are useful to support the work.

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Particularly if NGOs choose to write a longer report, it is recommended to have a brief Executive Summary (perhaps two pages) which highlights the key issues in the report and summarizes the recommendations.6 Of course, the available time and resources available to an NGO will play a deciding role in determining the length and focus of a report.

(2) Identification of Advocacy Goals

The goals that an organization has should clearly shape its advocacy around the reporting process. The shadow report may be used to:

Highlight best practices;

Lobby for domestic legislation or policy reform at state and federal levels;

Educate domestic media and the public;

Contribute to political platforms;

Promote dialogue with political candidates or national government representatives; and

Clarify local agencies’ and NGOs’ priorities for rights enforcement and social change in general.

Implementation of human rights treaties is the responsibility of the U.S. federal government. The U.S. government has issued “Understandings” to ICERD, ICCPR, and CAT stating that it will implement the provisions of the treaties in all areas where it has jurisdiction, and that state and local governments will implement the treaties where the matters involved are within their jurisdiction. It is important to realize that even where some powers are devolved to the states, NGOs can still hold the federal government accountable for the actions of states which may be violating the treaties.

Because of its Understanding under the ICERD, the U.S. Government focused its first report to the CERD on federal laws and policies and did not provide detailed information on the laws, policies and practices of different U.S. states. It would be very useful for the Committee to have documentation regarding compliance of different states with the treaties and what steps the federal government should take to better ensure that states are in 66 Given that shadow reports invariably serve multiple purposes, suggested restrictions on page lengths should not impede the preparation of a report. In addition to an Executive Summary, providing clear headings and a table of contents which makes it easy for CERD experts to locate information regarding what may be a particular area of interest to them, are good ways to make a report more useful to CERD.

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compliance. It is also appropriate for NGOs to make recommendations regarding specific state action which should be taken towards implementing the treaties.

Given the federal/state structure of U.S. governance, examples of options for shadow reports on the U.S. include the following:

A report which looks at a range of issues or focuses on one issue (e.g. education), concentrating on federal law and policy;

A single-issue report which aims to address an issue at both federal and state level, looking at a number of states around the country as well as the overall federal legislative and policy picture;

A report which looks at one issue or a range of issues as experienced in different states (perhaps three or four);

A report which looks at one issue or a range of issues focusing on one state.

(3)Identification of advocacy strategies

In addition to considering the issues to be dealt with in the shadow reports themselves, groups should consciously, and early on, determine the best approach to getting the most mileage out of the reporting process. Various advocacy strategies are suggested throughout this document, but key strategic possibilities include:

linking sub-national, national and international advocacy; generating media attention; putting international pressure on domestic authorities; doing public relations and educational outreach; and making targeted approaches to key decision makers.

States Parties have come to expect questions from the treaty bodies on whether social justice groups and NGOs generally have been consulted or involved in the preparation of the report and whether, and in what ways, the report reflects the input of these groups. NGOs should assess for themselves the potential benefits, limitations or pitfalls to direct cooperation with their national government in the preparation of official reports. For example, NGOs should consider to what extent they have the time – and whether it is worthwhile – to provide detailed information to the government, and consider the extent to which the most useful contributions NGOs can make to a government report are brief suggestions on what issues the government should address. It should be kept in mind that governments are not eager to present a report to the treaty bodies which will be an admission of

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numerous human rights violations. Therefore, while NGOs might take much time to submit information to a government, and in turn the government will tell the bodies it consulted with NGOs, the concerns of NGOs may not be fully reflected in the government’s final report. Thus, often, the strategies for working outside the government may be more effective that working within.

B. Drafting the Shadow Report

The following section describes in detail the various components of drafting a shadow report; it is, however, only a guide and other approaches could be equally or more effective for your organization’s purposes.

(1)Describe the human rights situation

Here is where you describe the who and the what of your issue. Presentation and analysis are critical aspects of the shadow reporting process, and your report should be both emotionally compelling as well as factually persuasive.

Statistical data and case studies greatly enhance the report. The U.N. refers to such information as “indicators” and they are helpful in assessing and formulating a response to the human rights situations being presented in the report. Some basic principles for developing indicators include:

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Shadow Reporting: General Points to Consider

It is important to ensure that the submission is written in easily accessible language, bearing in mind that submissions serve the purpose not only of providing information to the treaty bodies but also for policy makers and activists alike. It is very important to keep in mind that Committee members suffer from information overload. Therefore, the easier a document is to read, both in terms of content and format (i.e. use lots of headings and a reasonable size font) the better. Terminology should always be consistent and, where necessary, explained early in the text (i.e. why using the term “people of color” and to whom this refers).

All paragraphs should be numbered for easy reference.

The information should, where appropriate and possible, cut across gender and different racial/ethnic minority groups.

Brief is better…if you think the point can be made and the recommendation which follows supported in a very short space, keep it short. Just because an issue only takes one page to explain does not mean it will be considered any less important than a lengthy one.


the need to break down and categorize—disaggregate—data by variables such as ethnicity, gender, age, region (especially urban/rural), language, religion, or other minority factors, including refugee and internal displacement.

the need for case studies – testimonies and narratives that “tell the story” in its most human terms.

The importance of accessible, objective, and comprehensive sources for this information is clear. NGOs should investigate a range of sources of information, such as reports from academic or independent institutions, government studies, censuses, local agencies, and national and international NGOs.

NGOs should compile key statistics and choose two or three case studies to illustrate the human rights aspect of their report’s issue(s) or theme(s). Where possible, include information on people of color across social and economic groupings and identities. Case studies should be brief (a paragraph or two) and it should be clear from the accompanying analysis that the story (if it talks about an individual case) is representative of an entire constituency’s experience, rather than an isolated incident.

(2)Identify the key article(s) of the treaties

It is important to provide a clear explanation of the how the issue you are presenting is one specifically addressed by the treaty. For example, under ICERD you must describe how the issue is one of racial discrimination and to link the issue to the specific ICERD articles. Emphasize the relevant provisions of ICERD and, where appropriate, describe the rights (see in particular articles 2 and 5) being violated as a consequence of governmental action or failure to act.

Also remember that the treaty bodies are constantly elaborating on the content of the rights protected by the treaties through General Comments and Recommendations, laying forth their authoritative interpretation of states’ obligations under the treaties.5 The elaborations in the General Comments can provide useful grounding for holding the government accountable to specific obligations.

(3)Identify current laws and the government’s implementation record

Broadly sketch — to the best of your knowledge and where relevant — the federal and state laws and regulations that apply to the situations described in your report. Identify any specific institutions or authorities charged with

5 See Section III.B.

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enforcing the laws in your identified area and include your understanding of how the U.S. Constitution applies to your described situation(s).

Once the laws have been identified, then identify who needs to be trained or made aware of them: judges, police, prosecutors, advocates, school administrators, teachers, etc., and show how these laws would apply to the case studies in your report. Explain to what extent the communities you work with, and who are represented in the case studies, have benefited from the laws at the national and local levels. Best practices should also be highlighted here.

In particular, NGOs should use the government’s previous reports to the treaty bodies, and the subsequent Committee comments on those reports, to identify areas where the government has met or not met its objectives. This element is key, because it demonstrates that NGOs are observing what the state has committed itself to in its international statements, and what the international community expects from the state, and that civil society will hold the government accountable. Links to the previous reports and comments are in Section VI below.

(4)Identify obstacles to achieving full implementation of the treaties

In reference to the issues or themes you have chosen to focus on, discuss the obstacles that communities face in achieving the rights or protections at the local, national and international level. Include obstacles faced in the private sphere – i.e., family, business, private schools or churches. Under ICERD, for example, you should examine the entire range of factors affecting people of color’s lives, including such things as lack of access to education, information, or resources. Note specific obstacles, such as people of color not being able to afford a lawyer, or having little access to power brokers. Discuss whether existing legislation and policy addresses the situation described in your report. If relevant, refer to the U.S. government report to CERD, particularly if your report directly challenges the government’s position or assertion.

Also detail the ways that social attitudes, cultural expectations, media representations, and things such as usual business practices can be discriminatory. For example, do employers tend to believe certain racial/ethnic groups are incapable of performing certain jobs? Do medical professionals tend to believe certain racial/ethnic group’s nutrition or health is less important than that of the general population?

Further, identify how the inability of communities to enjoy equality in the area you are reporting on affects their ability to enjoy other rights in other areas, or places them at risk of other rights violations. For example, look at the way the lack of education affects employment choices and economic status, among other things, of people of color.

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(5)Recommendations

Identify what steps should be taken by the federal and state governments to address the obstacles to achieving racial equality and to redress the situation presented in your report.6 Include not only legislative action, but also education and public awareness campaigns, funding of programs, and other types of affirmative steps. For example, if your issue or theme is environmental justice, you might recommend training programs and the involvement of community groups in that training. Also identify some key indicators for holding your national government accountable and explain how you would want the treaty bodies to measure the government’s progress over time.

Draft sample “Concluding Observations” for the Committee that include specific actions to be taken by the U.S. federal government, or by state governments, that will address the obstacles identified. Recommendations should be concrete and linked to a time line. For example, “government should improve services for refugees of all ethnic groups,” would not be concrete. A better way to formulate this would be, “government should: (a) collect accurate data on the needs of people of color in (the specific area); (b) coordinate with local groups on an assessment of needs for different ethnic groups; (c) review current laws to ensure that they address the needs of refugees of all ethnic groups (in the report area); (d) train relevant personnel to ensure that policies and laws are implemented fairly; and (e) provide grants, without justifiable discrimination, to groups that provide services to refugees.

6 This refers also to private actors which receive government support and/or which are able to carry out racially discriminatory actions as a result of the government’s failure to act.

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(6)Submission of the report to the CERD

The shadow report should be sent directly to the treaty body. Although, there is no official deadline for the report, the more time that members of the Committee have to review the report, the more effective it may be. In any case, shadow reports should be submitted after the U.S. report so they can address the content of that report, but before the scheduled oral review of the country. For CERD, the best time to submit shadow reports is early January for the March session, and May for the August session.

A key issue to consider is that of translation. Although many members of the CERD are fluent in English, some are not. Translating the report into at least Spanish and/or French will greatly increase the likelihood that it will be given full attention by all the members of the body. Particularly if the Rapporteur for the U.S.’s report is not fluent in English, the shadow report should at least be translated into a language the Rapporteur can understand. Translation of a 10-15 page report can run into the thousands of dollars, so it is important to budget for this at an early stage. Sharing costs with coalition partners can help to defray expenses in this regard.

Shadow reports should be sent to the following address:

OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTSThe United Nations Committee on the Elimination of All Forms of Racial Discrimination8-14 Avenue de la Paix1211 Geneva Switzerland 10

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Shadow Reporting: Information Checklist

Check to make sure that the main body of your shadow report contains the following features:

A reference to the appropriate article(s) of the treaties (this could be a numerical and abbreviated reference in the main body of the text, with a full copy of the primary articles of the treaty in an appendix);

References to national, constitutional, and state laws relevant to the report;

Indicators such as statistical data and case studies; Identification of key actors responsible for implementing necessary

laws and directly responsible for violating the right to freedom from discrimination and the right to equality ;


Tel: +41 22-917-9000; Fax: +41 22-917-9006

The cover letter should be addressed to the “Chair of CERD”.

C. Engaging the Committee

(1)Lobbying Strategy

Beyond submitting a shadow report to CERD, NGOs should consider sending one or more representatives to the Committee session when the U.S. is scheduled for review. As noted above, there are usually two sessions where U.S.-related activity will occur: first, when the CERD gives its draft questions to the U.S. representatives, and then the following session when they have the full hearing. Although there will be more opportunity for substantive interaction with the Committee at the latter session, groups should also consider sending representatives to the earlier meeting, as the questions asked can greatly influence the direction of the follow-up hearing.

At the session, NGOs will have the opportunity to observe the work of the Committee, and monitor the presentation and responses of the national government representative. Although there is no formal process for lobbying Committee experts and NGOs are not permitted to make interventions during the review of a government, NGOs may informally lobby the Committee experts prior to the session and during the lunch break to help shape the questions posed to the national government representatives.

As far in advance as possible, NGOs should consult with organizations which have U.N. ECOSOC consultative status (e.g. Global Rights) to find out how to obtain U.N. passes for the session.7 Such NGOs can also provide guidance on how to approach the Committees’ international experts. For participating NGOs, this reporting process can be very useful for domestic advocacy — particularly in challenging the national government to uphold promises and to explain statements made to the treaty body. NGOs also have the opportunity to provide the international community with more precise information as well as highlight best practices in their part of the country.

An especially useful method of informal lobbying is through the use of lunchtime briefings with the members of the Committees. These briefings,

7 ECOSOC refers to the Economic and Social Council, which is responsible for the coordinating, rationalizing and, to some extent, programming the activities of the United Nations, its autonomous organs and the specialized agencies in all of these sectors. NGOs with consultative status may send observers to public meetings of the Council and its subsidiary bodies and may submit written statements relevant to the Council's work. They may also consult with the United Nations Secretariat on matters of mutual concern. NGOs wishing to work regularly with U.N. mechanisms are encouraged to apply for ECOSOC consultative status. See section VII, Useful Information Sources.

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usually about an hour long, allow NGOs an opportunity to make their case in vivid terms directly before the Committee examines the State Party. Arrangements for briefings should be made as far in advance as possible through consultation with the secretary of the Committee and the Country Rapporteur. Given the limited time while the Committees meet, it is important to coordinate these briefings with other interested groups.

While in Geneva, NGOs should attempt to also coordinate their advocacy with the international press. Press should be notified well in advance, and repeatedly, of the briefings once they are scheduled. This is a tremendous opportunity to attract an international spotlight to your issue.

(2) Beyond the Committee: Accountability and Follow Up

Among the strategies to consider in releasing the shadow report is the timing — how and where the report should be released to maximize its exposure is critical. For example, an excellent time to release the report would be simultaneous with the occurrence of any national, regional, or international conferences or meetings (attended by national government and/or NGOs representatives) at which the report could be presented. Also, NGOs should investigate what networks or sources can be tapped for publication and distribution of the report. There is also the question of who should receive the report first — the national government, the press and the public, or specific individuals, organizations, or agencies. All of these possibilities merit consideration.

As part of their shadow report strategy, NGOs will want to consider possible follow-up activities once the report has been prepared, submitted, and released to the public. Some of the questions to consider when devising your overall strategy include: Will the national government make an official report on CERD’s findings to the public? Do you want to make a calendar to monitor the national government’s progress? Should you plan a debate with the national, state, or local government about the differences in the official and shadow reports? Would a public evaluation be more fruitful if presentations were limited to NGOs and other actors in civil society? Bear in mind that one of the advantages of preparing a shadow report is that it can then be used for a wide variety of purposes over an extended period of time.

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Model Shadow Report Structure

The following is a possible organizational structure for a shadow report under ICERD that focuses on one U.S. state. However, the format and concepts could be easily adapted to a different focus.

Table of ContentsExecutive Summary (one page) Welcome the U.S. government report. Explain why you’re writing the submission on that particular state and

how it links to the federal situation (e.g. education policy is affected by decisions at both the state and federal levels and the sample state’s situation, while not identical to the approach of other states, does implicate the Convention and does provide the Committee with some insight into education issues at the state level.)

Political/social context for submission (e.g. traditionally disadvantaged communities are excluded from decision-making processes that create education policy. This strategy has been rooted in racial discrimination and abuses of human rights and enables the continued repression of these communities’ interests). This section sets the mood of communities, usually in contrast to the government’s analysis of the state of race relations.

Outline key issues/areas of concern raised in the submission (without providing detail)

List recommendations

Introduction Welcome the U.S. government report Contextualize the submission: a much more detailed explanation for

why this submission, including why you’ve written on that state and how it relates to the Federal situation.

Political/social context for submission, including appropriate general statistics such as the population percentages of different racial/ethnic communities in the state.

Broad overview of primary issue(s) being addressed in submission, perhaps one paragraph on each issue (e.g. criminal justice, immigration etc.)

Main Body of Submission (see Section V.B. above)

Recommendations (see Section V.B(5) above)

Conclusion: A few paragraphs that draw attention to main overarching point (i.e. the U.S. government needs to have a comprehensive rather than piece-meal strategy to tackling race equality and must demonstrate


V. OTHER CONSIDERATIONS IN SHADOW REPORTINGThe process of shadow reporting can, and should, be useful in many ways beyond the production of the document itself.

Internal Organizational

Civil rights and social justice organizations should not regard the shadow reporting process as an extraneous task outside their mission. Rather, organizations should review their institutional goals and identify where the use of the international law and mechanisms could complement and advance the work they are doing already. Many of the ways the process can help are described further below.

Public Relations Goals in the U.S.

Many state and local organizations often find it difficult to get media attention for their issues. Taking their causes to the international level offers several opportunities for increased visibility. First, the groups may gain access to international press for whom the organization’s cause may be more fresh, which can help raise the profile of the cause in its own right. Additionally, the interest of the international press can in turn influence the domestic press to begin covering the cause as well. Finally, because the international human rights framework remains somewhat of a novelty in this country, by reframing the abuse a group is confronting as an international human rights violation, it may be able to draw additional attention from domestic media outlets. By having a public relations strategy in place through all parts of the shadow reporting process, from the issuance of the state report, through the Committee hearings, to the Concluding Observations, as discussed more in depth below, the organization can maximize the benefit it gets from investing in the shadow reporting process. An example of a high-visibility press release from the publishing of the last report with “A Call to Action” issued by 45 prominent civil rights leaders is attached as Appendix 3.

Advocacy in the U.S.

NGOs should begin by considering both the domestic and international usefulness of creating a shadow report as it relates to their agenda, mandates, and resources. For example, they should evaluate the strategic uses of such a report in: (1) identifying sources of information; (2) coalition building; and (3) working with the national government. The usefulness of creating a shadow report can be evaluated by its function in providing additional information to the treaty Committees that is absent from the national government’s reports. It is also useful in an ongoing way to monitor national responses, to conduct domestic media and education campaigns,

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and to critique the national and state government’s stands on issues such as racial discrimination.

While the big events of the shadow reporting process occur far away in Geneva, the primary purpose that groups have in utilizing the process is to generate accountability here at home. With sufficient planning in advance, especially as regards media coordination, as discussed above, the impact of the shadow reports can stretch far beyond sending the report off to the Committee. For example, the research for the shadow reports can begin with town hall meetings with impacted community members, to describe the process and what it can hold for them. The effect of the reports can be multiplied through coordination with other groups as reports come together. Before groups are leaving for Geneva, they can stop over in Washington, D.C., to hold meetings with their Congressional representatives and agency officials to discuss the issues they raise in their reports. As the Committee meets and groups attend meetings, they can share their experiences with their members back home through blogging. And when the Committee issues its Concluding Observations, it is up to NGOs to publicize the recommendations through op-eds in general circulation media and articles in their own newsletters to hold the U.S. accountable to its international obligations.

Priorities and NGO Coordination

As discussed above, the importance of NGO coordination cannot be understated in making the shadow reporting process effective. Given the diversity among various kinds of NGOs their mandates, and activities, entities preparing joint or collaborative reports should anticipate discussions concerning divisions of labor, editorial decision-making, and resource sharing. This coordination should begin, if possible, before the issuance of the report, in order to have a rapid response when the report is issued, publicizing the report in the media and responding to areas of concern.

Once the government report is issued, groups need to assess the report and begin doing outreach to affected populations who are not yet involved in the process, to ensure maximum inclusiveness of issues. Given the size of the U.S., and also its federal/state structure, there is potentially much information to be submitted to the treaty bodies, addressing a range of issues and also perspectives. To avoid duplication and in consideration of the limited resources or areas covered, many NGOs will consider making joint submissions. Choosing themes or issues in common with other NGOs (social justice organizations, human rights groups, civil rights groups, community organizations etc.) will facilitate the creation of information-gathering alliances and/or enhance solidarity among existing coalitions. Working together with other NGOs will also advance the production and distribution of the shadow report. This can result in either fully joint reports or coordinated

26


individual reports, depending on group need. Above all with ICERD, but with other treaties as well, special attention should be given to reaching out to non-mainstream groups and minorities, with emphasis on those communities that may be facing intersectional discrimination, such as on the basis of gender or religion combined with race. As noted above, the drafting of the proposed questions, the testimony before the Committee, and the shadow reports themselves must be coordinated in order to ensure total coverage of issues while also prioritizing them, so the Committee is not swamped by information and distracted by issues of lesser importance to groups here at home.

Groups should be aware that there are many ways they can contribute to the shadow reporting effort without drafting an entire report and heading to Geneva themselves. By coordinating with larger organizations, smaller groups with fewer resources, but more on-the-ground knowledge can get their information to those larger organizations that can then integrate it into a joint report. Alternatively, smaller groups can work with law school clinics to help them in drafting their own report. Or groups can simply be part of a reviewing subcommittee will look at the shadow reports before they are submitted to ensure non-mainstream voices and issues are not being omitted. And for groups that cannot make the trip to Geneva, it is essential that they communicate their priorities to those who can attend to ensure they are not lost in the oral presentations and informal lobbying. Most importantly, with all groups publicizing events through their networks, the greatest number of people can be informed about the process, and mobilized to hold the government accountable for its obligations. Finally, in addition to the immediate benefits of coordination, hopefully groups can find new allies for their causes and continue working in concert in the future.

VI. CONCLUSION

The overall goal of the shadow report is to achieve greater government accountability for and protection of all people’s human rights under domestic and treaty laws. The process of preparing the report should contribute to and strengthen existing initiatives and coalitions. The discussion of the treaty bodies and their concluding observations can never be predicted and NGOs should be aware that a Committee many not necessarily address all of their issues. Also, the preparation and submission of NGO shadow reports require considerable time, planning, effort, and resources. Nevertheless, the impact shadow reports can have in making the treaties more effective and more relevant for all; on influencing policy-makers in the U.S.; and on raising awareness about racism as a violation of human rights, often make shadow reporting a worthwhile endeavor.

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VII. USEFUL INFORMATION SOURCES

-U.N. Office for the High Commissioner for Human Rights websitehttp://www.unhchr.ch

-Copies of U.N. treaties:http://www.unhchr.ch/html/intlinst.htm

- Information on obtaining ECOSOC consultative statushttp://www.un.org/esa/coordination/ngo/

or contactUnited Nations, NGO Section, DESA, 1 U.N. Plaza/DC 1 – 1480, New York, NY 10017Email: [email protected] Tel. 212 963 8652, Fax. 212 963 9248

-Treaty documents (including general recommendations, concluding observations etc) http://www.unhchr.ch/tbs/doc.nsfhttp://bayefsky.com/http://www1.umn.edu/humanrts/

-U.S. Government Report to CERD (2000)http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CERD.C.351.Add.1.En?Opendocument

-CERD Concluding Observations on the 2000 U.S. reporthttp://www.unhchr.ch/tbs/doc.nsf/(Symbol)/A.56.18,paras.380-407.En?Opendocument

-U.S. Government Report to HRC (1995)http://www.bayefsky.com/reports/usa_ccpr_c_81_add.4_1994.php

-HRC Concluding Observations on the 1995 U.S. reporthttp://www.unhchr.ch/tbs/doc.nsf/(Symbol)/b7d33f6b0f726283c12563f000512bd1?Opendocument

-U.S. Government Report to CAT (1999)http://www.state.gov/www/global/human_rights/torture_index.html

-CAT Concluding Observations on the 1999 U.S. reporthttp://www.unhchr.ch/tbs/doc.nsf/(Symbol)/59a7a114139ef798802568e3004e289e?Opendocument.

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http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/59a7a114139ef798802568e3004e289e?Opendocument

http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/59a7a114139ef798802568e3004e289e?Opendocument

http://www.state.gov/www/global/human_rights/torture_index.html

http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/b7d33f6b0f726283c12563f000512bd1?Opendocument

http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/b7d33f6b0f726283c12563f000512bd1?Opendocument

http://www.bayefsky.com/reports/usa_ccpr_c_81_add.4_1994.php



http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CERD.C.351.Add.1.En?Opendocument

http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CERD.C.351.Add.1.En?Opendocument

http://www1.umn.edu/humanrts/

http://bayefsky.com/

http://www.unhchr.ch/tbs/doc.nsf

mailto:[email protected]

http://www.un.org/esa/coordination/ngo/

http://www.unhchr.ch/html/intlinst.htm

http://www.unhchr.ch/


Appendix 1: NGO Shadow Report: a sample

Below is an extract from a joint report submitted to CERD by Americans for a Fair Chance and Global Rights (under its prior name, the International Human Rights Law Group) in the summer of 2001.

CALIFORNIA SHADOW REPORT:

Affirmative Action in Higher Education

Americans for a Fair ChanceInternational Human Rights Law

Group

C. Russell ClauseWilmer, Cutler & Pickering

July 9, 2001

This report covers events through May 2001

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INTRODUCTION

Although we welcome the Initial Report of the United States of America to the United Nations Committee on the Elimination of Racial Discrimination, we believe that it underestimates the severity of the level of racial discrimination present in many parts of the country, including the subject of this report, California. As the most populous U.S. state, California suffers from many of the racial problems identified throughout this Response. Indeed, California is a fascinating state to study because it presents a kind of microcosm of the whole American society.

In its racial problems, as much as with its thriving industries, scenic wonders, and diverse populace, California often leads the way in the United States. California’s racial demographics have been changing dramatically in recent years, with the state having recently become the United States’ first large “majority minority” state or, in other words, a state in which white citizens no longer make up a majority of the total number of citizens. Indeed, since 1970, the white population of California has shrunk from 77% to just under half.8 During this same period, the portion of the state’s population composed of black, Latino, and Asian citizens has grown proportionately. As of the 2000 census, California’s population was about 47% white, 29% Latino, 11% Asian-American, 6% black, and 2% made up of other races. About 5% of Californians classified themselves as “multi-racial.”9

A recent survey of California citizens conducted by the Public Policy Institute of California found that 81% of the 20,000 California citizens polled between April 1998 and May 2000 were satisfied with racial relations in the area in which they lived.10 A majority of citizens in each of California’s four largest racial groups (whites, blacks, Latinos, and Asians), indicated that they were aware that the state’s demographics have been changing recently, and that they still believed race relations were good in the state and would be improving in the future. Although there was disagreement on some of the more controversial issues involving race such as affirmative action, which was supported by 78% of blacks, but opposed by 72% of whites, and racial profiling, with only 43% of whites believing that police target minorities

8 Public Policy Institute of California, Press Release, “Cause For Cheer, Concern in Study of Racial and Ethnic Attitudes,” Jan. 4, 2001 (hereinafter “PPI Survey”); Solomon Moore, “Survey Finds Optimism in State About Race Relations,” Los Angeles Times, Jan. 4, 2001, no page number available (hereinafter “Moore I”). The Public Policy Institute is a nonprofit organization that conducts nonpartisan research on economic, social, and political issues that affect the lives of Californians.

9 Maria L. LaGanga and Shawn Hubler, “California Grows to 33.9 Million, Reflecting Increased Diversity,” Los Angeles Times, Mar. 30, 2001, at A1.

10 PPI Survey; Moore I.

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based upon race, as opposed to 82% of blacks and 65% of Latinos, the overall picture depicted by the survey was largely optimistic.

We present this shadow report because we believe that the issue of affirmative action in education did not receive a sufficient level of attention in the U.S. Report. Affirmative action in education is a touchstone racial issue in Californian and American society today. Unfortunately, the news in California on this issue also is not very good. From 1995, when the use of affirmative action for making admissions decisions at California’s public universities was banned by referendum, until today, minority admissions at the state’s top schools have declined dramatically and show no sign of recovering anytime soon. Until they were dropped, affirmative action programs had played a crucial role in Californian society for the last three decades by dispersing opportunities more broadly. However, the state’s abandonment of these programs now threatens to reverse long-term social trends towards eliminating entrenched discrimination, while also depriving California of an entire generation of multicultural business and political leaders which will be vital for dealing with the challenges and problems that may arise as the state moves toward a future in which white citizens will represent a progressively lower percentage of the population.

Since they came into widespread use in American society in the mid- to late-1960s, affirmative action programs have aided innumerable minority students in gaining educational opportunities that lingering discrimination otherwise might have prevented them from experiencing. By opening up the nation’s best universities to more minority students, affirmative action was one of the greatest, but most misunderstood, success stories of late twentieth century American life. Moreover, as discussed below, no viable alternative to well-tailored, comprehensive affirmative action programs ever has been proposed.

Affirmative action programs are not important solely because they are a means of remediating the insidious racial and ethnic-based discrimination that still pervades too many facets of U.S. life. These programs also embody the nation’s continued commitment to make real the dreams of civil rights pioneers like Abraham Lincoln and Martin Luther King Jr. Banning affirmative action in this day and age in which racial discrimination still leads to wildly disparate results when it comes to the opportunities available to white, black, Latino, Asian American, and Native American U.S. citizens simply is unwise and unfair. Such a decision represents a stark refutation of the core principles of freedom and equality on which the United States was founded, but which we, as a people, still have not entirely achieved. Thus, in the words of Martin Luther King Jr., if this nation ever is to “rise up and live out the true meaning of its creed[:] We hold these truths to be self evident that

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all men are created equal,”11 it must remain steadfastly committed to wise and necessary programs like affirmative action which attempt to ennoble and empower us all, while building a truly just society.

11 Martin Luther King Jr., “I Have a Dream” Speech, at Washington, D.C., Aug. 28, 1963 (full text available at http://www.holidays.net/mlk/speech.htm).

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ANALYSIS

A. Introduction

1. ICERD Article 7 provides:

States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations or ethnical groups. . . .

Similarly, Article 5 provides in relevant part:

States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

. . .

(e) (v) The right to education and training. . . .

On the issue of taking active or so-called “affirmative” steps to eliminate racial discrimination, two Articles are important. Article 2(2) states:

States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.

Relatedly, Article 1(4) explains:

Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or

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exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.

Finally, regarding the issue of federalism, Article 2(1)(c) requires that:Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists.

2. The recent history of affirmative action in California higher education has been a story of missed opportunities. California has been moving in the wrong direction on these issues since 1995, when it ceased relying on affirmative action principles at its flagship universities in the nine-campus University of California (“UC”) system, which enrolls more than 160,000 students. This mistake was then compounded in 1996, when a state-wide voter initiative called the California Civil Rights Initiative (aka, “Proposition 209”) passed, banning the use of affirmative action in all public education decisions throughout the state.

3. As a result of these retrograde actions, thousands of minority California students have been deprived of crucial educational opportunities they otherwise would have enjoyed, and all California students, regardless of race, nationality, and ethnic origin, have been denied beneficial multicultural experiences that they would have known if affirmative action had not been discontinued.

4. These unfortunate social consequences come during a time at which California just has become the nation’s first large majority minority state, as discussed above. Thus, in an era when diversity and maximization of opportunity should be most valued and encouraged, California, a state so often at the forefront of social change, finds itself drifting against the tide of historical progress.

5. In its Report, the United States attempts to disclaim responsibility for enforcing affirmative action policies throughout the country on the grounds that such issues fall within the states’ bailiwick under the federal system of government. However, this “federalism defense” falls short for several reasons. First, when a nation enters into an international agreement, it assumes responsibility for ensuring the compliance of its subordinate political entities. The American constitution provides explicit authority for the federal government to enforce principles of equal protection and due process within state systems. The U.S. government historically has relied on

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this authority to enforce civil rights in recalcitrant states. Quite simply, there is no reason that these constitutional provisions cannot be invoked in support of a federal effort to ensure the re-implementation of affirmative action in states which have abandoned it, like California. Moreover, when it ratified the ICERD, the U.S. Senate explicitly expressed its understanding that “the Federal Government shall, as necessary, take appropriate measures to ensure the fulfillment of this Convention.” Thus, by its own design, the federal government has assumed responsibility for ensuring compliance with the ICERD. The U.S. cannot shirk this sovereign duty by citing the politically convenient, but legally false, defense of federalism.

6. In any event, whenever a jurisdiction as large, varied, and important as California embarks on a voyage as ill-fated as the state’s recent decision to ban affirmative action, an analysis of the implications of the decision must begin with an examination of how a state filled with such enormous potential could pursue such a flawed and senseless policy.

B. The History of Affirmative Action at California’s Public Universities

7. In order to understand the harm that has been done by eliminating affirmative action in California’s schools, one first must grasp the enormous, beneficial social changes that affirmative action had a large role in creating. For example, in 1940, a full 75 years after the end of the Civil War, an astounding 93% of all U.S. black citizens lived below the poverty line.12 The average black student received about seven years of education, and only two percent earned a college degree.13

8. Although the opportunities created by northern industrialization and a strong economy sliced this figure to 55% by 1960, a majority of the United States’ black citizens still lived in poverty as recently as 40 years ago.14

9. Until the 1960s, California’s public universities, particularly its most prestigious campuses, were almost exclusively white.15 As one author described UC’s Berkeley campus during the 1930s:

12 William G. Bowen, et al., The Shape of the River 1 (Princeton Univ. Press, Princeton, 1998) (hereinafter “Bowen I”). This figure can be compared, for example, with the fact that only 53% of all of South Africa’s population lived below its poverty line in 1998 even though a sizable portion of that country’s population is white. See “Poverty Hearings to Begin in Bloemfontein,” Daily Dispatch (South Africa) On-Line, Feb. 5, 1998 (available at http://www.dispatch.co.za/1998/02/25/ southafrica/bloemfon.htm) (no author listed).

13 Bowen I, at 1.14 Id.15 Jerome Karabel, “The Rise and Fall of Affirmative Action at the University of California,”

Journal of Blacks in Higher Education 109, Autumn 1999 (hereinafter “Karabel I”).

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“[it was] 99.9 percent white. I didn’t know of a single American-born black student at Berkeley in the thirties. . . . [If affirmative action had been suggested,] it would have been rejected at just about every hand, student, and faculty irrespective of political ideology, or anything else.”16

10. If it is even possible, professional programs at these schools were even more exclusively reserved for white students at this time. Thus, between 1955 and 1968, of the 764 students who received medical degrees (M.D.s) from UCLA, not one single graduate was black or Hispanic.17 Similarly, black and Hispanic students together constituted less than one percent of the class of UC Berkley’s Boalt Hall School of Law in 1967.18 Even at UCLA’s law school, which had made somewhat more progress in this area, black and Latino students together accounted for only eight percent of the 1967 class.19

11. In the wake of the Supreme Court’s 1954 Brown v. Board of Education desegregation decision and President Lyndon Johnson’s 1965 decision to adopt affirmative action for various federal contracts and employment programs, California’s public universities began using affirmative action in the late 1960s in an attempt to boost minority enrollment to a level roughly corresponding to minority population in the larger society.

12. Positive effects were almost immediate. For example, between 1967 and 1969, black enrollment at the UCLA School of Law increased from six to 8.7 percent. At Berkeley’s School of Law, the figure went from about one percent to four percent, and at UCLA’s School of Medicine, black enrollment rose to 5.6 percent.20

13. While affirmative action was employed in slightly different ways between 1969 and 1995, the positive social changes it unleashed in California were both cumulative and exponential. In other words, every minority California student who benefited from affirmative action was able to play a more useful and beneficial role in California society after graduation due to the increased opportunities opened up by a better education. Over time, these individual advances cumulated into a state-wide accomplishment larger than the sum of its individual success stories. Moreover, the effect also was exponential, in that every minority student who was able to “get ahead,” then was able to pass down the secrets and skills of success to each generation of younger minority citizens.

16 Id. (quoting Robert Nisbet, The Degradation of the American Dogma, The University in America, 1945-1970 (Basic Books, New York, 1971), no page number available).

17 Karabel I, at 109.18 Id.19 Id.20 Id.

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14. By the mid-1990s, black students made up 6.8% of all undergraduates admitted to Berkeley, and Latinos represented 15.4 percent.21 System wide, Latino undergraduate enrollment at UC had increased 86% from 1980 to 1991, and graduate enrollment was up 61 percent.22 More generally, the beneficial effects of expanding educational opportunities could be observed radiating throughout the wider California society. For example, Latino holders of bachelor’s degrees increased from just 4.5% in 1970 to 9.4% in 1992.23 As another study noted, “African-Americans and Latinos significantly increased their numbers as ‘Officials and Managers in Major Companies’ between 1975 and 1993 from 2.6% to 4.5% for African-Americans and from 4.8% to 8.3% for Latinos.”24 Similarly, a respected nationwide study found that at least 300 of 700 black students aided by affirmative action in the 1970s went on to become identifiable community leaders, with more than 250 becoming doctors, lawyers, or business executives.25 The lesson, then, is clear: affirmative action, properly applied, can greatly increase the chances of minority students in getting ahead in life and making a real difference in the world. 15. In many ways, the achievement of expanded opportunity through quality education lay at the very heart of the California success story. By providing opportunity for less privileged youngsters who might not otherwise have seen reason to hope for a better life, affirmative action was a crucial component in the state’s ambition of building a thriving, prosperous multicultural society during the latter quarter of the twentieth society. Indeed, it is fair to say that no governmental program or policy was more instrumental or important in achieving that goal. Nonetheless, as discussed below, California’s 1995 abandonment of affirmative action threatens to endanger all of the successes that the state realized since the 1960s.

C. The Campaign Against Affirmative Action

16. To some extent, affirmative action always was controversial in California. However, the real momentum toward its eventual abandonment only began with Republican Governor Pete Wilson’s appointment of Ward Connerly to UC’s governing body, the Board of Regents, in 1993. Upon joining the Board, Connerly, who is himself black, immediately began

21 Transcript, “Losing Diversity,” The NewsHour with Jim Lehrer, PBS newscast, Apr. 1, 1998 (hereinafter “PBS Transcript”).

22 Americans for a Fair Chance Report, “Facts on Minorities and Education” (hereinafter “AFC Report”).

23 Id.24 American Civil Liberties Union (“ACLU”) of Southern California, “Affirmative Action in

California” (available at http://www.aclu-sc.org/reports/209analysis.html”) (no author listed) (hereinafter “ACLU Report”).

25 Richard Flacks, “Getting to Yes,” Los Angeles Times Book Review, July 4, 1999, at 7.

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agitating for an end to the use of affirmative action in California’s public universities.26 Connerly was supported in his campaign by Wilson, for whom he was a major political contributor and fundraiser, and 1996 Republican Presidential candidate Bob Dole.27 His cause also was aided by the fact that, by 1995, 17 of the 26 members of the UC Board of Regents had been appointed by Republican governors Wilson, George Deukmejian, and Ronald Reagan.28

17. On July 20, 1995, the Connerly-led Board of Regents passed Resolutions SP-1 and SP-2 by votes of 14-10-1, banning any consideration of race or ethnicity in UC admissions.29 In so doing, UC became the first major university in the U.S. to stop using affirmative action.

18. Sixteen months later, by a racially-divided vote of 54% to 45%, California voters approved a broader initiative, Proposition 209, which rendered illegal any consideration of race or ethnicity in public education, employment, or contracting in California.30

19. Resolutions SP-1 and SP-2 and Proposition 209 remained the law of the State of California until May 2001, when the Board of Regents voted unanimously to drop their ban on using affirmative action.31 However, while this action was symbolically important, it lacked any legal effect since Proposition 209 remains in place to this day.32

D. The Tragedy of Proposition 209: Back to the 1960s

26 Amy Wallace, “He’s Either Mr. Right or Mr. Wrong,” Los Angeles Times Magazine, Mar. 31, 1996, at 12.

27 Id.; ACLU Report.28 ACLU Report.29 Karabel I, at 110; Jerome Karabel, “No Alternative: The Effects of Color-Blind Admissions in

California,” in Gary Orfield, et al., Chilling Admissions: The Affirmative Action Crisis and the Search for Alternatives 33, 33-34 (Harvard Civil Rights Project and Harvard Education Publishing Group, Cambridge, 1998) (hereinafter “Karabel II”).

30 Karabel I, at 110; Dave Lesher, “Governments Step Unsurely Toward ‘Colorblind’ Goal,” Los Angeles Times, Nov. 4, 1997, at A1. Proposition 209 provides:

[t]he state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contracting.

Id.; see also Bill Stall, et al., “Prop. 209 Wins, Bars Affirmative Action,” Los Angeles Times, Nov. 6, 1996, at A1.

31 Rebecca Trounson and Jill Leovy, “UC’s Regents End Affirmative Action Ban,” Los Angeles Times, May 17, 2001, no page number available.

32 See, e.g., Rebecca Trounson and Kenneth R. Weiss, “Numbers of Blacks, Latinos Admitted to UC System Rise,” Los Angeles Times, Apr. 4, 2001, no page number available (hereinafter “Trounson I”); Kenneth R. Weiss, “Protesters in UCLA Sit-In Call for End to Ban on Affirmative Action,” Los Angeles Times, Mar. 15, 2001, at B1; Becky Bartindale, “UC Regent Delays Push on Race Rule,” San Jose Mercury News, Mar. 8, 2001, no page number available.

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20. Minority enrollment at California’s best public universities has plummeted since the schools were barred from using affirmative action. As a result, there has been an extremely alarming “cascade” effect associated with these declines, with those minority students turned away from the most elite schools and programs “cascading” down the educational “ladder” to less prestigious and/or less selective schools and programs.33 This diminution in the opportunities available to some of the state’s best minority students threatens to wipe out an entire generation of future California civic and community leaders, as well as depriving all students of the benefits that derive from being educated amongst a multicultural group of peers.34

21. The statistics discussed below demonstrate the magnitude of this tragedy in California education. Moreover, although other statistics circulated over the last few years by opponents of affirmative action sometimes seem to indicate that the consequences of ending affirmative action have not been severe, it must be remembered that the numbers offered by opponents of affirmative action often ignore or hide important demographic factors. For example, it was reported that the UC system, as a whole, had “only” 27 fewer minority students matriculate in 1999 than in 1997 among a total class of 47,804.35 Although 27 sounds like an extremely small difference, several other facts must be remembered in order to put this decrease in perspective. First, the small decline in minority enrollment occurs at a time of rapidly increasing minority population in California. Thus, to the extent that minority matriculation is not rising, relatively, it really is falling precipitously as a portion of the available university-going population. Second, matriculation of Asian-American students also has been rising over this period of time. However, Asian-Americans are not a minority population towards which affirmative action traditionally has been directed. Thus, to the extent that minority Asian-Americans are matriculating in higher numbers, and thereby adding a proportionate increase to the level of “minority” matriculants as a whole, other minority students, such as African-Americans and Latinos, are matriculating at relatively lower rates.36

22. With these keys to understanding the relevant data in mind, it can be recognized that the educational disaster wrought by Resolutions SP-1 and SP-2 and Proposition 209 was dramatic and immediate.37 For example, matriculation of black students at Boalt Law School on the Berkeley campus

33 See Adam Cohen, “When the Field Is Level,” Time, July 5, 1999, no page number available (hereinafter “Cohen I”).

34 See, e.g., Laura E. Gomez, “Loss of UC Diversity Means Lost Opportunity for Law Students,” Los Angeles Times, Sept. 24, 2000, no page number available (hereinafter “Gomez I”); Tanya Schevitz, “UC Regents Urged to Step Up Minority Outreach at Schools,” San Francisco Chronicle, Jan. 21, 2000, at A23.

35 Cohen I; Michelle Locke, “Minority Admissions Up, Enrollment Down at Some Campuses,” Associated Press State & Local Wire, June 19, 2000.

36 See Associated Press, “UC President Plans to Reexamine Admissions,” Los Angeles Times, Sept. 14, 2000, no page number available (hereinafter “AP I”).

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dropped from 20 in 1996 to only one in 1997 -- a decline of 95 percent.38 At UCLA’s law school, black matriculants decreased from representing 7.4% of the class in 1995 to only 2.6% in 1997.39 The 1997 figures for both of these schools were the lowest since 1967, before affirmative action first was being used by UC. Indeed, Boalt had enrolled an average of 24 black students a year between 1968 and 1996 -- as compared to just one in 1997.40

23. Even by the year 2000, only seven black students enrolled at Boalt Hall, as compared to 20 in the last year that affirmative action was used.41 At UCLA Law in 2000, only two percent of the entering class was black, just as was the case immediately after affirmative action was banned, as compared to 7.4% in the last year that it was used.42

24. For the state’s five public medical schools, the decline also was precipitous. In 1993, black and Latino matriculants made up 106 of 569 students (18.6%); by 1997, the figure was just 66 of 569 (11.6%).43

25. The ban on affirmative action was devastating in terms of minority undergraduate admissions. Between 1997 and 1999, Hispanic enrollment at the prestigious Berkeley campus fell by 34%, and black enrollment was off by 57 percent. Berkeley’s 1999 freshman class included only 13.6% of students who were black, Latino, or Native American, as compared to 21.5% in 1997.44 At UCLA, in the first year affirmative action was not used, black admissions fell by 43% and Latino admissions declined by 33 percent.45 Overall, the percentage of black, Latino, and Native American students entering the UC system in 2000 had fallen to 16% from the 22% figure of 1995.46 Indeed, even staunch affirmative action foe Ward Connerly has conceded that Proposition 209 cut minority representation on the Berkeley and UCLA campuses more than he had envisioned, although admittedly he has not, by any means, altered his fundamental opposition to affirmative

37 Indeed, there is evidence that black and Latino applications dropped at UC after the enactment of SP-1 and SP-2 even though the measures did not require an immediate end to the use of affirmative action, either because minority applicants did not feel welcome at the schools or because they preferred to attend other schools that did not have such hostile admissions policies in effect. Karabel II, at 34-35.

38 Karabel I, at 110, 112.39 Id. at 110.40 Ronald Dworkin, “Affirming Affirmative Action,” New York Review of Books, Oct. 22, 1998, no

page number available.41 “Minority Enrollment Rises at Boalt Hall but Numbers of Black Students Still Low,” San

Francisco Chronicle, Aug. 26, 2000, at A17 (no author listed); Karabel I, at 112.42 Gomez I; Karabel I, at 110.43 Id. at 110-11.44 See, e.g., Carlos Munoz, “The Nonstop Attack on UC’s Ethnic Studies,” San Francisco Examiner,

Feb. 11, 2000, at A21 (hereinafter “Munoz I”).45 PBS Transcript. 46 AP I.

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action.47 Cascading also has been a major problem, with black admissions concomitantly rising by more than 54% at UC Riverside, one of the system’s less prestigious schools, and Latino admissions up by 66 percent, while the numbers fell at Berkeley and UCLA.48

26. The most recent statistics are little better. For example, although somewhat more in-state Latino students were admitted to the UC system as a whole for matriculation this coming fall, the increase is entirely attributable to the fact that the system now admits a higher portion of applicants of all races and ethnicities than it did in the past.49 More significantly, numerically fewer black and Latino students were admitted to Berkeley and UCLA in 2001 than in 1997. Indeed, black admissions to these top two schools are off by a full 40% during this period of time. Thus, to the limited extent that Latino admissions, alone, have risen modestly in number, the increase has tended to take place almost entirely at lower-ranking schools.50 Moreover, Latino admission must be expected to have risen at least marginally, given the increasingly large portion of the state’s population composed of Latino citizens.51 Overall, the trends for black undergraduate students are even worse than for Latinos.52

27. The effects of discrimination appear to worsen as one progresses up the academic chain. For instance, while blacks and Latinos made up about 22% of the UC undergraduate student body in 1996, only about 13% of UC’s doctoral degrees were awarded to black and Latino students, and, even worse, only 8% of UC’s tenured professors were black or Latino.53

28. Of course, radical decreases in minority populations on the campuses of California’s best public universities has not occurred in a vacuum without causing related deleterious effects. For example, ethnic studies departments at many of these schools have been under sufficiently hostile scrutiny of late that they fairly could be termed “under siege.”54 Moreover, the environment created by Proposition 209 has rendered it difficult to make increasingly outnumbered minority students feel at home on the UC campuses55 or, indeed, even on the campuses of other elite California universities.56 Finally, the campus atmosphere for some minority students has deteriorated to the

47 Anne Bejaminson, “Affirmative Action at UC-Berkeley; Five Years Later,” Daily Californian, July 21, 2000, no page number available (hereinafter “Bejaminson I”).

48 Cohen I. 49 Trounson I. 50 Id.; see also Rebecca Trounson and Kenneth R. Weiss, “Minorities Up 42.5% in UCI’s Fall

Admissions,” Los Angeles Times (Orange County Edition), Apr. 4, 2001, at B1.51 Trounson I.52 Id.53 Bejaminson I; Munoz I.54 Munoz I.55 Cohen I.

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point that they no longer even feel welcome to attend top California schools even if they are admitted, thus causing the relevant admissions numbers to decline even further. ______________________________________________________________________________Case Study: Negative Secondary Effects of Ending Affirmative Action -- Social Exclusion

Karen FlemingUC Irvine student Karen Fleming, a black student, turned down an offer to attend UC Berkeley, the California system’s best public university and perhaps the best public school in the United States, simply because she did not feel welcome on the increasingly all-white Berkeley campus.57 Although Irvine unquestionably is a good university, it, of course, cannot match the resources and accomplishments of Berkeley, its much older and more established northern rival. For example, although such measures do not necessarily reflect overall quality, Berkeley recently was ranked as tied for the twentieth best U.S. “national university” by U.S. News and World Report, while Irvine was ranked as tied with two other schools at forty-first place.58 Explaining her decision, Fleming stated, “[a] lot of universities, including Berkeley, have a cutthroat attitude -- I’m going to do well and I don’t care about you. . . . This campus has more of a family feeling.”59

____________________________________________________________________________________________

E. The Affirmative Action Debate Today

29. The negative effects of reducing or eliminating affirmative action have not been experienced only in California in recent years. Indeed, in Texas, where the flagship University Texas campus at Austin was required by the Fifth Circuit Court of Appeals to cease using affirmative action in making admissions decisions, the law school graduated a mere five black students last year, the same number as in 1950, the year that the U.S. Supreme Court ordered an end to the racial segregation that long characterized that state’s university system.60 Moreover, campus-wide, black admissions fell from 438 in 1996 to 320 in 1998; and Latino admissions were reduced from 1,600 to 1,401, while both white and Asian-American admissions increased significantly.61

56 Editorial, “Declining Enrollment -- Has Proposition 209 Deterred Minorities from Applying to Stanford,” Stanford Daily, Nov. 4, 1999 (speculating that Proposition 209 might even have depressed minority applications at Stanford University, a private school which retains affirmative action, simply because many minority students no longer wish to attend school in California).

57 Cohen I. 58 “2001 College Rankings,” U.S. News and World Report (available at http://www.

usnews.com/usnews/edu/college/rankings/natunivs/natu_a2.htm).59 Cohen I.60 Gomez I; see also Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), cert. denied, 518 U.S. 1033

(1996).61 Affirmative Action and Diversity Project Report, “University Enrollment in the Post-Affirmative

Action Era,” University of San Diego (available at http://aad.english.ucsb.edu/docs/1998-admit.html).

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30. A similar situation also has developed in Florida under Republican Governor Jeb Bush. Contrary to Bush’s claims that his plan to boost diversity in the state’s universities would succeed without the use of affirmative action, recent statistics indicate that the percentage of black and Hispanic students that enrolled in the state’s schools during the first year of the governor’s plan actually declined.62

31. Since the passage of Proposition 209 in California, many commentators have offered suggestions on ways to achieve representative racial diversity on California’s public university campuses without relying on the traditional principles that have characterized affirmative action in the United States for the last 35 years. Some of these alternatives have not been offered in good faith -- they merely represent eviscerations of the dedication to equality that should characterize U.S. educational policy. However, other alternatives have been offered by those who truly wish to assist in the broadening of equal opportunity for all. Unfortunately, however, none of the alternate methods of making admissions decisions, regardless of the offerors’ motivations, represent genuine, viable alternatives to well-tailored, comprehensive affirmative action programs.

32. Perhaps the most widely debated alternative arrangement for promoting equal opportunity in education has been to replace traditional affirmative action’s focus on the race or ethnicity of the applicant with a focus instead on the applicant’s socio-economic background or “class.”63 This alternative is attractive to some because it arguably would have the effect of helping poor students of all races and ethnicities to gain educational opportunities that they might not otherwise enjoy. Moreover, since minority students in California often tend to come from lower than average economic backgrounds, it is true that a class-based system of affirmative action might help certain minority students more than no system of affirmative action.

33. Nonetheless, an economics-based system of affirmative actions simply will not produce academic classes of the varied racial and ethnic diversity produced by more typical forms of affirmative action.64 Although related, class-based and racial disadvantages do not necessarily correlate. Indeed, because racial differences often are more pronounced in lower income groups than in higher income brackets, a class-based system largely would benefit low-income white students.65 Thus, although a class-based policy might expand opportunity to some limited number of minority students, it will not reach the root cause of continued educational inequality in the

62 See Scott Powers, “Diversity Tumbles in Freshman Class,” Orlando Sentinel, May 17, 2001, at A1.

63 See, e.g., Richard Kahlenberg, The Remedy: Class, Race and Affirmative Action (Basic Books, New York, 1996).

64 Karabel II, at 34.65 Id. at 37-38.

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United States -- i.e., systematic racial and ethnicity-based discrimination that, although perhaps not as pervasive as it was fifty years ago, still is sufficiently widespread to require a remedy specifically tailored to address the problem.

34. Several states, including California, Texas, Florida, and Pennsylvania also either have considered or actually have implemented programs under which high school seniors in the top few percentage points of their graduating classes automatically are entitled to admission at the state’s public universities. In California, the top 4% of every graduating class currently is entitled to admission to at least one UC campus.66 In September 2000, UC President Richard C. Atkinson proposed extending this program to the top 12.5% of each graduating class as long as the new students started their studies at a community college. This expanded program would “capture” many of the minority students who barely miss out under the current 4% program.67 However, several problems remain. First, opponents of affirmative action already have questioned whether this program would be constitutional if it is motivated by racially-based considerations. Second, the plan again only roughly corresponds with the conditions of racial and ethnic-based discrimination which characterize U.S. society because it is based on rank in graduating class, rather than racial and/or ethnic background.

35. In another recent, relatively bold move, President Atkinson proposed dropping the SAT and ACT standardized tests as requirements for admission to the UC system.68 If adopted, this change in policy would be of crucial importance for minority students seeking admission to California’s public colleges for several reasons. First, these tests, of course, long have been under attack for being unrepresentative of individual student’s abilities and discriminatory in effect towards minority students.69 Second, minority students generally fare best in admissions processes when their entire academic and personal records are examined, rather than when administrators uncreatively just focus on isolated quantitative criteria, such as grade point average and SAT score. Indeed, it usually is not even fair to compare the classes that a lower-income minority student takes in high school with the classes taken by a higher-income white student because students at private and better public schools often have significantly easier access to “college prep” and “advanced placement” (AP) classes.70 Thus, to

66 Tanya Schevitz, “New UC Plan to Raise Minority Enrollment,” San Francisco Chronicle, Sept. 22, 2000, at A1.

67 Id.68 Diana Jean Schemo, “Head of U. of California Seeks to End SAT Use in Admissions,” New York

Times, Feb. 17, 2001, no page number available.69 See Nicholas Lehman, The Big Test: The Secret History of the American Meritocracy (Farrar,

Straus & Giroux, New York, 1999); Nathan Glazer, “The End of Meritocracy,” New Republic, Sept. 27, 1999, no page number available.

70 See David Hill, “Test Case,” Education Week, Mar. 1, 2000, at 34.

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the extent that a diminution in the importance given to the SAT test in admissions decisions would be counterbalanced by more closely analyzing other aspects of students’ backgrounds, minority students probably would benefit.71

36. Moreover, particularly in light of a December, 2000 decision by the California Supreme Court, an expansion in the criteria considered when making university admissions decisions could not come at a more opportune time for minority California students. The Court, in Hi-Voltage Wire Works, Inc. v. City of San Jose, held that Proposition 209 bars California governmental agencies from limiting recruitment or “outreach” efforts purely to women and minority candidates.72 This decision was a blow to civil rights advocates because it was hoped that aggressive outreach efforts aimed at qualified minority candidates partially could substitute for more traditional affirmative action programs by, at minimum, increasing contact and communication with minority candidates.73

37. Thus, in the wake of a ruling that, at best, leaves the constitutionality of many such outreach programs in serious question, the State of California again returns to a point at which the urgent need for, and benefit of, affirmative action cannot seriously be debated. Today, almost five years after the passage of Proposition 209, minority enrollment at state universities remains seriously depressed, and no alternative to affirmative action has been offered to address this problem. While the U.S. Report does recognize the way in which Proposition 209 and Hopwood have impinged on the overall success of affirmative action in the U.S., the Report does not convey the real urgency of the problem. Moreover, it is not at all clear that the new Presidential administration in the U.S. will support the continue use of affirmative action even as blandly as did the Clinton administration.

38. Ultimately, the bottom line is that, even today, for example, about 95% of all senior managers in U.S. Fortune 1000 industrial and Fortune 500 service companies are white men in a society in which white men make up significantly less than 50% of the population.74 If the California and the United States are serious about addressing this deep imbalance, affirmative action is an important tool that must be used to expand educational opportunity, thereby, in time, reducing minority social exclusion.

71 A related, even more recent proposal is to abandon the university’s two-tiered admission process, in which some students are admitted during the first stage based purely on objective criteria, and replace it with a more flexible process in which every applicant is evaluated separately. See Becky Bartindale, “UC Berkeley Considers Abandoning Two-Tier Admission Process,” San Jose Mercury News, May 18, 2001, no page number available.

72 24 Cal. 4th 537, 101 Cal. Rptr. 2d 652, 12 P.3d 1068 (2000).73 Pamela Burdman, “UC System Has No Leeway to Consider Race in Admissions, Despite Recent

Court Ruling,” Black Issues in Higher Education, Jan. 4, 2001, at 22.74 ACLU Report.

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F. Recommendations

In one sense, any recommendations to be proffered on this issue are exceedingly simple in theory, but difficult to execute in practice. Quite simply, either the State of California or the U.S. federal government needs to move immediately to takes steps to reverse the effect of Proposition 209, thus restoring affirmative action to use by California’s public universities. In so doing, however, the following principles also should be upheld:

A well-tailored, comprehensive affirmative action program based on race and ethnicity should be re-implemented, rather than an alternative arrangement. Although there is no reason to ignore class when making admissions decisions, such consideration cannot supplant the consideration of race and ethnicity, which are completely independent factors in determining a student’s educational opportunities.

Abandonment of reliance on standardized tests should be encouraged, and college admissions decisions increasingly should be based on a review of the complete portfolio of an applicant, rather than just his or her GPA and test scores.

Relatedly, pre-college educational funding for lower-income minority students should be expanded in an effort to ensure that students of different socio-economic backgrounds have the same choices when it comes to taking the college prep and AP classes that they need just to be able to apply to college. No student’s college eligibility should be compromised due to circumstances beyond his or her own control before even getting to apply to college.

Accompanying a restoration of traditional affirmative action programs

should be a re-institution and expansion of outreach programs in order to increase communication with minority students and to maximize the diffusion of information regarding education throughout the society.

Each of these changes should apply equally to undergraduate, graduate, and doctoral admissions, as well as to professorial hiring by California’s public universities.

CONCLUSION

In violation of ICERD Articles 5 and 7, the practices and/or circumstances herein described deprive California’s minority citizens of their right to be free of racial and ethnic-based discrimination in the fields of teaching, education, culture, and information. Similarly, the federal

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government’s continued refusal to take special and concrete measures to amend, rescind, or nullify California’s state policies against affirmative action represents a shirking by the U.S. of its sovereign duty under ICERD Article 2 to takes steps when circumstances warrant, as clearly they do here, to guarantee minority citizens the full and equal enjoyment of human rights and fundamental freedoms.

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Appendix 2: U.S. Reservations, Understandings, Declarations

ICERD

Upon signature: "The Constitution of the United States contains provisions for the protection of individual rights, such as the right of free speech, and nothing in the Convention shall be deemed to require or to authorize legislation or other action by the United States of America incompatible with the provisions of the Constitution of the United States of America."

Upon ratification:

"I. The Senate's advice and consent is subject to the following reservations:

(1) That the Constitution and laws of the United States contain extensive protections of individual freedom of speech, expression and association. Accordingly, the United States does not accept any obligation under this Convention, in particular under articles 4 and 7, to restrict those rights, through the adoption of legislation or any other measures, to the extent that they are protected by the Constitution and laws of the United States.

(2) That the Constitution and laws of the United States establish extensive protections against discrimination, reaching significant areas of non-governmental activity. Individual privacy and freedom from governmental interference in private conduct, however, are also recognized as among the fundamental values which shape our free and democratic society. The United States understands that the identification of the rights protected under the Convention by reference in article 1 to fields of `public life' reflects a similar distinction between spheres of public conduct that are customarily the subject of governmental regulation, and spheres of private conduct that are not. To the extent, however, that the Convention calls for a broader regulation of private conduct, the United States does not accept any obligation under this Convention to enact legislation or take other measures under paragraph (1) of article 2, subparagraphs (1) (c) and (d) of article 2, article 3 and article 5 with respect to private conduct except as mandated by the Constitution and laws of the United States.

(3) That with reference to article 22 of the Convention, before any dispute to which the United States is a party may be submitted to the jurisdiction of the International Court of Justice under this article, the specific consent of the United States is required in each case.

II. The Senate's advice and consent is subject to the following understanding, which shall apply to the obligations of the United States under this Convention:

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That the United States understands that this Convention shall be implemented by the Federal Government to the extent that it exercises jurisdiction over the matters covered therein, and otherwise by the state and local governments. To the extent that state and local governments exercise jurisdiction over such matters, the Federal Government shall, as necessary, take appropriate measures to ensure the fulfilment of this Convention.

III. The Senate's advice and consent is subject to the following declaration: That the United States declares that the provisions of the Convention are not self-executing."

ICCPR

I. The Senate's advice and consent is subject to the following reservations:

(1) That Article 20 does not authorize or require legislation or other action by the United States that would restrict the right of free speech and association protected by the Constitution and laws of the United States.

(2) That the United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age.

(3) That the United States considers itself bound by Article 7 to the extent that "cruel, inhuman or degrading treatment or punishment" means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States.

(4) That because U.S. law generally applies to an offender the penalty in force at the time the offense was committed, the United States does not adhere to the third clause of paragraph 1 of Article 15.

(5) That the policy and practice of the United States are generally in compliance with and supportive of the Covenant's provisions regarding treatment of juveniles in the criminal justice system. Nevertheless, the United States reserves the right, in exceptional circumstances, to treat juveniles as adults, notwithstanding paragraphs 2(b) and 3 of Article 10 and paragraph 4 of Article 14. The United States further reserves to

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these provisions with respect to individuals who volunteer for military service prior to age 18.

II. The Senate's advice and consent is subject to the following understandings, which shall apply to the obligations of the United States under this Covenant:

(1) That the Constitution and laws of the United States guarantee all persons equal protection of the law and provide extensive protections against discrimination. The United States understands distinctions based upon race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or any other status - as those terms are used in Article 2, paragraph 1 and Article 26 - to be permitted when such distinctions are, at minimum, rationally related to a legitimate governmental objective. The United States further understands the prohibition in paragraph 1 of Article 4 upon discrimination, in time of public emergency, based "solely" on the status of race, color, sex, language, religion or social origin not to bar distinctions that may have a disproportionate effect upon persons of a particular status.

(2) That the United States understands the right to compensation referred to in Articles 9(5) and 14(6) to require the provision of effective and enforceable mechanisms by which a victim of an unlawful arrest or detention or a miscarriage of justice may seek and, where justified, obtain compensation from either the responsible individual or the appropriate governmental entity. Entitlement to compensation may be subject of the reasonable requirements of domestic law.

(3) That the United States understands the reference to "exceptional circumstance" in paragraph 2(a) of Article 10 to permit the imprisonment of an accused person with convicted persons where appropriate in light of an individual's overall dangerousness, and to permit accused persons to waive their right to segregation from convicted persons. The United States further understands that paragraph 3 of Article 10 does not diminish the goals of punishment, deterrence, and incapacitation as additional legitimate purposes for a penitentiary system.

(4) That the United States understands that subparagraphs 3(b) and (d) of Article 14 do not require the provision of a criminal defendant's counsel of choice when the defendant is provided with court-appointed counsel on grounds of indigence, when the

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defendant is financially able to retain alternative counsel, or when imprisonment is not imposed. The United States further understands that paragraph 3(e) does not prohibit a requirement that the defendant make a showing that any witness whose attendance he seeks to compel is necessary for his defense. The United States understands the prohibition upon double jeopardy in paragraph 7 to apply only when the judgment of acquittal has been rendered by a court of the same governmental unit, whether the Federal Government or a constituent unit, as is seeking a new trial for the same cause.

(5) That the United States understands that this Covenant shall be implemented by the Federal Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by the state and local governments; to the extent that state and local governments exercise jurisdiction over such matters, the Federal Government shall take measures appropriate to the Federal system to the end that the competent authorities of the state or local governments may take appropriate measures for the fulfillment of the Covenant.

III. The Senate's advice and consent is subject to the following declarations:

(1) That the United States declares that the provisions of Articles 1 through 27 of the Covenant are not self-executing.

(2) That it is the view of the United States that States Party to the Covenant should wherever possible refrain from imposing any restrictions or limitations on the exercise of the rights recognized and protected by the Covenant, even when such restrictions and limitations are permissible under the terms of the Covenant. For the United States, Article 5, paragraph 2, which provides that fundamental human rights existing in any State Party may not be diminished on the pretext that the Covenant recognizes them to a lesser extent, has particular relevance to Article 19, paragraph 3, which would permit certain restrictions on the freedom of expression. The United States declares that it will continue to adhere to the requirements and constraints of its Constitution in respect to all such restrictions and limitations.

(3) That the United States declares that it accepts the competence of the Human Rights Committee to receive and consider communications under Article 41 in which a State Party

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claims that another State Party is not fulfilling its obligations under the Covenant.

(4) That the United States declares that the right referred to in Article 47 may be exercised only in accordance with international law.

IV. The Senate's advice and consent is subject to the following proviso, which shall not be included in the instrument of ratification to be deposited by the President:

Nothing in this Covenant requires or authorizes legislation, or other action, by the United Sates of America prohibited by the Constitution of the United States as interpreted by the United States.

CAT

I. The Senate's advice and consent is subject to the following reservations:

(1) That the United States considers itself bound by the obligation under Article 16 to prevent "cruel, inhuman or degrading treatment or punishment," only insofar as the term "cruel, inhuman or degrading treatment or punishment" means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.

(2) That pursuant to Article 30(2) the United States declares that it does not consider itself bound by Article 30(1), but reserves the right specifically to agree to follow this or any other procedure for arbitration in a particular case.

II. The Senate's advice and consent is subject to the following understandings, which shall apply to the obligations of the United States under this Convention:

(1)(a) That with reference to Article 1, the United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from: (1) the intentional

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infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.

(b) That the United States understands that the definition of torture in Article 1 is intended to apply only to acts directed against persons in the offender's custody or physical control.

(c) That with reference to Article 1 of the Convention, the United States understands that "sanctions" includes judicially imposed sanctions and other enforcement actions authorized by United States law or by judicial interpretation of such law. Nonetheless, the United States understands that a State Party could not through its domestic sanctions defeat the object and purpose of the Convention to prohibit torture.

(d) That with reference to Article 1 of the Convention, the United States understands that the term "acquiescence" requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his legal responsibility to intervene to prevent such activity.

(e) That with reference to Article 1 of the Convention, the United States understands that noncompliance with applicable legal procedural standards does not per se constitute torture.

(2) That the United States understands the phrase, "where there are substantial grounds for believing that he would be in danger of being subjected to torture," as used in Article 3 of the Convention, to mean "if it is more likely than not that he would be tortured."

(3) That it is the understanding of the United States that Article 14 requires a State Party to provide a private right of action for damages only for acts of torture committed in territory under the jurisdiction of that State Party.

(4) That the United States understands that international law does not prohibit the death penalty, and does not consider this Convention to restrict or prohibit the United States from applying

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the death penalty consistent with the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States, including any constitutional period of confinement prior to the imposition of the death penalty.

(5) That the United States understands that this Convention shall be implemented by the United States Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered by the Convention and otherwise by the state and local governments. Accordingly, in implementing Articles 10-14 and 16, the United States Government shall take measures appropriate to the Federal system to the end that the competent authorities of the constituent units of the United States of America may take appropriate measures for the fulfillment of the Convention.

III. The Senate's advice and consent is subject to the following declarations:

(1) That the United States declares that the provisions of Articles 1 through 16 of the Convention are not self-executing.

(2) That the United States declares, pursuant to Article 21, paragraph 1, of the Convention, that it recognizes the competence of the Committee against Torture to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the Convention. It is the understanding of the United States that, pursuant to the above mentioned article, such communications shall be accepted and processed only if they come from a State Party which has made a similar declaration.

IV. The Senate's advice and consent is subject to the following proviso, which shall not be included in the instrument of ratification to be deposited by the President:

The President of the United States shall not deposit the instrument of ratification until such time as he has notified all present and prospective ratifying parties to this Convention that nothing in this Convention requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.

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APPENDIX 3: SAMPLE PRESS RELEASE

MEDIA ADVISORYFor Immediate Release: Contact:September 22, 2000 Merce Momeni 202/422-1016 Lisa Jacobs 202/486-5280

U.S. Report Fails to Propose Meaningful Solutions to Criminal Justice Crisis

Yesterday, the U.S. released its first report to the U.N. Committee on the Elimination of Racial Discrimination. We are pleased that the U.S. has released its report, and we acknowledge the progress made on racial discrimination issues by the Clinton Administration. Nevertheless, we contend that the U.S. vastly understates the civil rights crisis in its criminal justice system. In anticipation of the release of the U.S. report, more than 45 prominent individuals, civil rights and human rights leaders called upon the U.N. committee, which will review the U.S. report, to pay particular attention to the racial discrimination that is endemic to the U.S. criminal justice system, including that system’s impact on women and youth of color. The “Call to Action,” highlighted numerous concerns including racial disparities in sentencing, and in the application of the death penalty. Having now reviewed the U.S. report, we note that the U.S. report fails to set forth a plan for redressing these unjustified and pervasive racial disparities.

In a forthcoming document, we will critique the U.S. report as a whole, highlighting areas in which the U.S. has achieved compliance with the Convention and identifying other areas in which we believe U.S. compliance falls short.

Signatories of the “Call to Action,” include Julian Bond, Chair of the NAACP, Jesse Jackson, Sr., actor Spike Lee, Wade Henderson, Executive Director of the Leadership Conference on Civil Righs, Ira Glasser of the ACLU, Hala Maksoud of the American-Arab Anti-Discrimination Committee, Karen Narasaki of the National Asian Pacific American Legal Consortium, Antonia Hernandez of the Mexican American Legal Defense Fund, Judith Lichtman of the National Partnership for Women and Families, JoAnn Chase of the National Congress of American Indians, James F. Fitzpatrick of the International Human Rights Law Group, Kerry Kennedy Cuomo of the Robert F. Kennedy Memorial Center for Human Rights, Dr. Bob Edgar of the National Council of Churches/USA and noted historian and member of the President’s Initiative on Race, Dr. John Hope Franklin.

The “Call to Action” was presented to the U.N. by Mary Frances Berry, Geraldine Segal Professor of History, University of Pennsylvania, and Chair of

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the U.S. Civil Rights Commission; Julian Bond, Chair of the NAACP; and Wade Henderson, Executive Director of the Leadership Conference on Civil Rights.###

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