Race, Racism and the Law 
Speaking Truth to Power!

Art 2(2) Special Measures

United States Report on Convention on Elimination of All Forms of Racial Discrimination,
  Initial Country Report (Sept, 2000). 

Please Sign My Guest book!      Read My Guestbook

 

 

Vernellia R. Randall
Professor of Law and
Web Editor

Search this site  
powered by FreeFind
 
What's New
Announcements
Awards and Recognitions
 

Units

Race and Racial Groups
Citizenship Rights
Justice and Race
Patterns of Basic Needs
Intersectionality Issues
Human Rights
 

Syllabi

Race and Racism
 

Surveys

Race Relations
Who is White?
 

Favorite Poetry

InvictusThe Bridge Poem
Still I Rise
No Struggle No Progress
 

Related Websites

Race and Health Care
Gender and the Law
Legal Education
Personal Homepage
Special Measures. Article 2(2) provides that, when circumstances so warrant, States Parties shall take "special and concrete measures" for the "adequate development and protection of certain racial groups or persons belonging to them for the purpose of guaranteeing to them the full and equal enjoyment of human rights and fundamental freedoms." Article 1(4) specifically excludes from the definition of "racial discrimination" "[s]pecial measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection" in order to provide equal enjoyment of human rights and fundamental freedoms. Such measures may not, however, lead to the maintenance of "unequal or separate rights for different racial groups" or "be continued after the objectives for which they were taken have been achieved."

Together, Article 1(4) and Article 2(2) permit, but do not require, States Parties to adopt race-based affirmative action programs without violating the Convention. Deciding when such measures are in fact warranted is left to the discretion of each State Party.

At the federal level, the United States has been pursuing such "special measures" for many years. For much of this century, racial and ethnic minorities and women have confronted a variety of legal and social barriers to equal opportunity in the United States. Segregated, inferior schooling combined with historic economic disadvantage left many effectively barred from participating in the benefits of a growing national economy. Even after the legal barriers to equal treatment were removed, the residual economic and social effects remained.

In 1961, President John F. Kennedy issued an Executive Order (No. 10925) which used the term "affirmative action" to refer to measures designed to achieve non-discrimination in employment. Four years later, President Lyndon Johnson signed Executive Order 11246, requiring federal contractors to take affirmative action to ensure equality of employment opportunity without regard to race, religion and national origin. In 1967, the Executive Order was amended to add gender as a prohibited basis of discrimination. The most far-reaching expansion of the affirmative action approach at the federal level took place in 1969 in connection with the so-called "Philadelphia Order" concerning construction trades in Philadelphia, PA.

The concept of using affirmative action to ensure equality of opportunity was initially incorporated into federal statutory law through Title VII of the Civil Rights Act of 1964, which aimed at ending discrimination by large private employers whether or not they had government contracts.

A substantial number of existing federal ameliorative measures could be considered "special and concrete measures" for the purposes of Article 2(2). These include the array of efforts designed to promote fair employment, statutory programs requiring affirmative action in federal contracting, including sheltered corporations, race-conscious educational scholarships, and direct support for historically Black colleges and universities, Hispanic-serving institutions and Tribal colleges. Some are hortatory, such as those based in statutes encouraging recipients of federal funds to use minority-owned and women-owned banks. Others are mandatory; for instance, the Community Reinvestment Act requires federally chartered financial institutions to conduct and record efforts to reach out to under-served communities, including, but not limited to, minority communities. Still others focus on targeted outreach and training efforts; for instance, the U.S. Department of State maintains the Foreign Affairs Fellowship Program, an initiative designed to increase minority participation in the Foreign Service.

The Small Business Act requires each federal agency to set goals for contracting with "small and disadvantaged businesses." Under its so-called "Section 1207" authority, the Defense Department is permitted to provide a ten percent bid price preference and to employ reduced-competition systems when necessary to meet its "small and disadvantaged businesses" contracting goals. The Omnibus Diplomatic Security and Anti-Terrorism Act requires that a minimum of ten percent of funds appropriated for diplomatic security projects be allocated to minority business enterprises. Certain small education grant programs (e.g., those under the Patricia Roberts Harris Fellowship, 20 U.S.C. sec. 1134d-g, and the Women and Minorities in Graduate Education Program, 20 U.S.C. sec. 1134a) target minorities in graduate education. The Department of Agriculture gives preferences to "socially disadvantaged" persons in the sale of farm properties and sets aside loan funds for farmers in this group. The Department of the Treasury administers a "minority-owned bank deposit" program in which designated banks receive special consideration to act as depositary institutions holding cash for federal agencies, so long as no increased cost or risk results to the government. The Department of Transportation gives preferences to small businesses owned and controlled by socially and economically disadvantaged individuals in Department of Transportation-assisted contracts.

The Clinton Administration has placed substantial emphasis on increasing educational opportunities for minorities in the United States. For instance, the Hispanic Education Action Plan is designed to provide targeted assistance to raise the educational achievement of Hispanic students and to close the achievement gap. The Plan incorporates a number of other programs, such as the State Agency Migrant Program and "GEAR UP."

Enacted in 1998 and administered by the Department of Education, GEAR UP funds partnerships of high-poverty middle schools, colleges and universities, community organizations, and businesses. The partnerships provide tutoring, mentoring, information on college preparation and financial aid, an emphasis on core academic preparation, and, in some cases, scholarships. In its first year, GEAR UP is serving nearly 450,000 students nationwide. Over 1,000 organizations are GEAR UP partners, including colleges and universities, libraries, arts organizations, local chambers of commerce, the YMCA, Boys and Girls Clubs, Wal-Mart, Unisys, and the New York Times Education Program. In the upcoming year, GEAR UP is expected to serve over 750,000 students. 

 
  
Same level:
Art. 2(1)a Prohibition of Discrimination ] Art 2(1)b No Support or Defense of Discrimination ] Art. 2(1)c Take Effective Measures to Eliminate ] Art 2(1)d Prohibit and Bring to an End Discrimination ] Art 2(1)e Encourage Integrationist Multi-racial Organizations ] [ Art 2(2) Special Measures ] Art 2(1) Prohibit and Eliminate Discrimination ]
Child Level:
Home ] Up ]
Parent Level:
Introduction ] General Report ] Legal Prohibition ] U.S. Reservations, Understandings and Declarations ] Compliance with Specific Articles ] Article 1 - Racial Discrimination ] Article 2 ] Art 3 Condemn Racial Segregation and Apartheid ] Article 4 Eliminate Incitements or Acts of Discrimination ] Article 5 Equality Under the Law ] Article 6 Assure Effective Protection and Remedies ] Article 7 Adopt Measures ] Conclusion ]
Units:
[Race and Racial Groups] [Citizenship Rights]  [Justice and Race] [Patterns of Basic Needs] [Intersectionality Issues] [Human Rights]
 

Always Under Construction!

Always Under Construction!
Subscribe to Race and Racism
Enter your e-mail address:
Race-And-Racism Archive
A group hosted by eGroups.com

Copyright @ 1997, 1998, 1999, 2001. Vernellia R. Randall
All Rights Reserved.


Last Updated:
Friday, October 05, 2001  

You are visitor number
Hit Counter  


Thanks to Derrick Bell and his pioneer work: 
Race, Racism and American Law
(1993).