Given the breadth of the definition of "racial discrimination" under
Article 1(1), the obligation imposed on States Parties in Article 2(1)(d) to
bring to an end all racial discrimination "by any persons, group or
organization," and the specific requirements of paragraphs 2(1)(c) and (d)
as well as Articles 3 and 5, the Convention may be viewed as imposing a
requirement on a State Party to take action to prohibit and punish purely
private conduct of a nature generally held to lie beyond the proper scope of
governmental regulation under current U.S. law.
a. Fourteenth Amendment
Since the time of the Civil Rights Cases, 109 U.S. 3 (1883), the U.S.
Supreme Court has consistently held that the Fourteenth Amendment does not reach
purely private conduct. Thus, the Fourteenth Amendment can only be invoked to
protect against conduct that is the result of "state action." The
state action requirement of the Equal Protection Clause reflects a traditional
recognition of the need to preserve personal freedom by circumscribing the reach
of governmental intervention and regulation, even in situations where that
personal freedom is exercised in a discriminatory manner.
In determining whether "state action" is present in a given case, the
critical inquiry under U.S. domestic law is whether the conduct of a private
party is "fairly attributable" to the state. Lugar v. Edmonson,
457 U.S. 922, 937 (1982). Under that test, mere governmental involvement with
private parties is often insufficient to trigger a finding of state action. For
example, in and of itself, government licensing and regulation of private
entities is not state action. Moose Lodge No. 107 v. Irvins, 407 U.S.
163 (1972) (licensing); Jackson v. Metropolitan Edison, 419 U.S. 345
(1974) (regulation). The same is true for government contracting. Blum v. Yaretsky,
457 U.S. 991 (1982). However, state employees acting under color of law are
generally considered "state actors." West v. Atkins, 487 U.S.
42 (1988). In addition, the Supreme Court has held that the following constitute
state action: the private performance of "public functions," Marsh v. Alabama,
326 U.S. 501 (1946); judicial enforcement of private discriminatory arrangements
such as restrictive covenants on property, Shelley v. Kraemer, 334 U.S. 1
(1948); certain forms of governmental assistance or subsidies to private
parties, Norwood v. Harrison, 413 U.S. 455 (1973); and state
encouragement of discrimination by private parties, Reitman v. Mulkey,
387 U.S. 369 (1967).
b. Thirteenth Amendment
On the other hand, the Thirteenth Amendment's prohibition against slavery and
involuntary servitude encompasses both governmental and private action. Civil Rights Cases,
109 U.S. 3, 20 (1883). The U.S. Supreme Court has held that Congress may
regulate private conduct under sec. 2 of the Thirteenth Amendment, which
provides that "Congress shall have the power to enforce this article by
appropriate legislation." Jones v. Alfred H. Mayer Co., 392 U.S.
409 (1968). Such power includes determining what constitutes the "badges
and incidents of slavery and the authority to translate that determination into
effective legislation." See also United States v. Kozminski, 487
U.S. 931, 942 (1988) (discussing Thirteenth Amendment right to be free from
Although Jones could be read as authorizing Congress to regulate a broad
array of harms on the ground that they were a form of servitude and slavery, the
Court has not had the opportunity to define the outer limits of Jones.
The Court has intimated, however, that "some private discrimination . . .
in certain circumstances" is subject to legislation under Section 2 of the
Thirteenth Amendment. See Norwood v. Harrison, 413 U.S. 455, 470 (1973).
For instance, the Reconstruction Era civil rights statutes discussed above (42
U.S.C. sec. 1981, 1982 and 1983, which create a cause of action against any
person who, acting under color of state law, abridges rights created by the
Constitution), have been used to prohibit private actors from engaging in racial
discrimination in a variety of activities, including the sale or rental of
private property, see Jones, 392 U.S. at 413; the assignment of a lease,
see Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969); and the
grant of membership in a community swimming pool, see Tillman v. Wheaton-Haven Recreation Ass'n. Inc.,
410 U.S. 431 (1973); the making and enforcement of private contracts, see Patterson v. McLean Credit Union,
491 U.S. 164, 272 (1989); see also Runyon v. McCrary, 427 U.S. 160 (1976)
(reaching refusal of private school to admit Black students). Finally, section
1985(3) has been applied to some private conspiracies. Compare Bray v. Alexandria Women's Health Clinic,
506 U.S. 263 (1993) (demonstration against abortions clinics was not within the
scope of statute) with Griffin v. Breckenridge, 403 U.S. 88 (1971)
(conspiracy to deprive Blacks of right of interstate travel was within the reach
c. Commerce and Spending Powers
In addition to the Thirteenth Amendment, Congress may regulate private conduct
through the Commerce and Spending powers it possesses under Article I of the
Constitution. For example, it was under the Commerce Clause that Congress passed
Title II and Title VII of the 1964 Civil Rights Act, which prohibit private
entities from discriminating in public accommodations and employment. See Katzenbach v. McClung,
379 U.S. 294 (1964). The Fair Housing Act is similarly grounded in the Commerce
Clause. Further, it was under Congress' Spending Power as well as under its
authority under Section 5 of the Fourteenth Amendment, that Congress passed
Title VI of the 1964 Civil Rights Act, which prohibits discrimination by public
and private institutions that receive federal funds. Lau v. Nichols, 414
U.S. 563 (1974).
Arguably, the reference to "public life" in the definition of
"racial discrimination" in Article 1(1) of the present Convention
might be read to limit the reach of its prohibitions to actions and conduct
involving some measure of governmental involvement or "state action."
The negotiating history of the Convention is far from clear on this point,
however, and it is not possible to say with certainty that the term "public
life" as contemplated by the drafters is synonymous with the permissible
sphere of governmental regulation under U.S. law. Moreover, the Committee
appears to have taken an expansive view in this regard, finding in the
Convention a prohibition against racial discrimination perpetuated by any person
or group against another. Accordingly, some forms of private individual or
organizational conduct that are not now subject to governmental regulation under
U.S. law could well be found within the sphere of "public life" as
that term is interpreted under the Convention.
Accordingly, it was appropriate to indicate clearly, through a formal
reservation, that U.S. undertakings in this regard are limited by the reach of
constitutional and statutory protections under U.S. law as they may exist at any
[T]he Constitution and laws of the United States establish extensive
protections against discrimination, reaching significant areas of
non-governmental activity. Individual privacy and freedom from governmental
interference in private conduct, however, are also recognized as among the
fundamental values which shape our free and democratic society. The United
States understands that the identification of the rights protected under the
Convention by reference in Article 1 to fields of "public life"
reflects a similar distinction between spheres of public conduct that are
customarily the subject of governmental regulation, and spheres of private
conduct that are not. To the extent, however, that the Convention calls for a
broader regulation of private conduct, the United States does not accept any
obligation under this Convention to enact legislation or take other measures
under paragraph (1) of Article 2, subparagraphs (1)(c) and (d) of Article 2,
Article 3 and Article 5 with respect to private conduct except as mandated by
the Constitution and laws of the United States.