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

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Vernellia R. Randall
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Both the federal and state judiciary provide extensive avenues for judicial review of both anti-discrimination law and discriminatory practices in the United States. In the years since the seminal case of Brown v. Board of Education, 347 U.S. 483 (1954), U.S. courts have played a key role in the review of governmental, national and local policies that may have the effect of creating or perpetuating racial discrimination. Four areas in which U.S. courts have been particularly active in reviewing and shaping anti-discrimination law have been in employment, voting, housing and education.


Employment. In the early years after the enactment of Title VII, many cases of race discrimination were proven with direct evidence of a racial bias. Direct evidence is generally understood as biased statements made or adopted by an employer's decision-makers. However, as employers became more aware of the prohibitions in the new law, race discrimination increasingly took on more subtle forms. In 1973, the Supreme Court held in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), that discrimination may also be proven by indirect, or circumstantial, evidence, and it established the disparate treatment theory of proving discrimination. Specifically, McDonnell Douglas established the elements of a prima facie case of race discrimination; the defendant's burden to articulate a legitimate, non-discriminatory reason for its actions; and the plaintiff's burden to show that the defendant's articulated reason is a mere pretext for a discriminatory motive. This paradigm continues to function, with only minor modifications, as the most common theory for proving race discrimination.

In 1971, the Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424 (1971), examined the issue of whether race discrimination prohibited by Title VII includes cases where the employer lacks a discriminatory motive. The Griggs decision established the adverse impact theory of proving discrimination, holding that a plaintiff may prove race discrimination where an employer's policy or practice is neutral on its face, yet is discriminatory in operation and is not justified by business necessity. The Supreme Court later established a more stringent test for establishing adverse impact claims, but Congress restored and clarified the Griggs standard in the Civil Rights Act of 1991.

Another commonly used method of proving race discrimination is the harassment theory. Over the years, appellate courts have consistently held that Title VII prohibits racial harassment, even where it entails no tangible job detriment. See, e.g., Daniels v. Essex Group, 937 F.2d 1264 (7th Cir. 1991); Vance v. Southwestern Bell Tel. & Tel. Co., 863 F.2d 1503 (11th Cir. 1989); Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971). Under this theory of discrimination, an employer may violate Title VII where it subjects employees to severe or pervasive unwelcome conduct because of their race. Under certain circumstances, employers can even be vicariously liable for harassment by co-workers.


Voting. The Voting Rights Act, enacted in 1965, did not include a provision prohibiting the imposition of poll taxes, but instead, it directed the Attorney General to challenge its use. In Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966), the Supreme Court held Virginia's poll tax to be unconstitutional under the 14th Amendment. Between 1965 and 1969 the Supreme Court also issued several key decisions upholding the constitutionality of Section 5 and affirming the broad range of voting practices for which prior federal approval ("preclearance") was required. As the Supreme Court stated in its 1966 decision upholding the constitutionality of the Act:

Congress had found that case-by-case litigation was inadequate to combat wide-spread and persistent discrimination in voting, because of the inordinate amount of time and energy required to overcome the obstructionist tactics invariably encountered in these lawsuits. After enduring nearly a century of systematic resistance to the Fifteenth Amendment, Congress might well decide to shift the advantage of time and inertia from the perpetrators of the evil to its victims.

South Carolina v. Katzenbach, 383 U.S. 301, 327-28 (1966). See also Allen v. State Board of Elections, 393 U.S. 544 (1969) (recognizing that gerrymandered district boundaries or at-large elections could be used to dilute minority voting strength).

Some years later, in 1973 the Supreme Court held certain legislative multi-member districts unconstitutional under the 14th Amendment on the ground that they systematically diluted the voting strength of minority citizens in Bexar County, Texas. This decision in White v. Regester, 412 U.S. 755 (1973), strongly shaped litigation through the 1970's against at-large systems and gerrymandered redistricting plans. However, in Mobile v. Bolden, 446 U.S. 55 (1980), the Supreme Court held that any constitutional claim of minority vote dilution must include proof of a racially discriminatory purpose. This requirement was widely seen as making such claims far more difficult to prove. As noted above, Congress amended the Voting Rights Act in response to Mobile v. Bolden to prohibit procedures or practices that have the effect of discrimination against minority voters.

In Shaw v. Reno (1993), the Supreme Court for the first time recognized an "analytically distinct" equal protection claim for challenging a redistricting plan that allegedly constitutes a racial classification. In Shaw, the Court held that five North Carolina voters had stated a claim under the Equal Protection Clause in alleging that the state's congressional redistricting plan contained districts shaped so dramatically irregular that they could only be viewed as having been drawn along racial lines. In a series of subsequent cases, chief among them Miller v. Johnson in 1995 and Bush v. Vera in 1996, the Court developed an elaborate framework for the adjudication of these Shaw claims. Under that framework, the plaintiff's initial burden is to show that the state used race as the "predominant factor" in the design of the challenged district, "subordinat[ing] traditional race-neutral districting principles . . . to racial considerations." If the plaintiff makes this showing, the plan is subject to strict scrutiny and will be held unconstitutional unless the state demonstrates that its use of race was narrowly tailored to achieve a compelling state interest.

The appropriate application of this new constitutional cause of action - and its interaction with the Voting Rights Act -- has been the subject of great debate and the law in this area is still evolve.


Housing. In the years since the enactment of the Fair Housing Act, there have been many important decisions by the federal courts that have shaped housing discrimination law. See e.g., United States v.West Peachtree Tenth Corp., 437 F.2d 221, 228 (5th Cir. 1971) (setting forth a model remedial decree for fair housing cases); United States v. City of Black Jack, 508 F.2d 1179 (8th Cir. 1974) (United States successfully challenged racially discriminatory zoning practices that had precluded development of racially integrated, low-income housing in a St. Louis suburb); United States v. Hunter, 459 F.2d 205 (4th Cir.), cert. denied, 409 U.S. 934 (1972) (holding that Section 804(c), 42 U.S.C. sec. 3604(c), prohibited the publication of an advertisement for an apartment in a "White home" without violating the First Amendment).

Two of the most important Supreme Court cases in this area are Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 209, 211 (1972) and Havens v. Coleman, 455 U.S. 365 (1982). In Trafficante, the Supreme Court held that existing tenants in an all-White housing complex have standing to sue under the Fair Housing Act to redress the landlord's discrimination against Blacks who desired to become tenants. In Havens, the Court held that fair housing "testers" (matched pairs of Blacks and Whites who pose as homeseekers in order to detect whether the housing provider is unlawfully discriminating) and fair housing organizations have a right to sue in federal court under certain circumstances. After these two important Supreme Court decisions, standing under the Fair Housing Act is as broad as Congress could have made it.

Education. The establishment of a judicial framework for eliminating race discrimination in education began to evolve in the 1930s with challenges to the legalized denial of equal protection of the laws. In San Diego, California, for example, children of Mexican descent challenged segregation successfully in state court in Alvarez v. The Board of Trustees of the Lemon Grove School District. (Superior Court of the State of California, San Diego, Petition for Writ of Mandate No. 66625, February 13, 1931). Local school officials in Lemon Grove, California barred Mexican students from the local school, instead directing them to a separate, inferior building. The children refused to attend, and they challenged the school board. The state court ruled that the school board had no legal right to segregate the children.

The assault in the federal courts began with an attack on the absence of professional and graduate schools for Blacks. These efforts bore initial fruit in 1938 when the Supreme Court ruled in Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938), that each state had a legal responsibility to provide an equal education within its borders and ordered the admission of a Black student to the School of Law at the State University of Missouri. In 1950, the Court also ruled in Sweatt v. Painter, 339 U.S. 629 (1950), that the state of Texas violated the Fourteenth Amendment's Equal Protection Clause when it refused to admit the petitioner to the University of Texas Law School.

Led by future Supreme Court Justice Thurgood Marshall, Blacks directly challenged the separation of the races in education in the seminal case of Brown v. Board of Education of Topeka (Brown I). 347 U.S. 483 (1954). The Court noted the importance of education as "perhaps the most important function of state and local governments," and concluded, "in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal."

Later, in concert with congressional action on the issue of equal educational opportunity, the Supreme Court repeatedly required school districts to take action that achieved integration, rather than merely removed legal barriers. The Supreme Court supported these requirements in Green v. County School Board of New Kent County, 391 U.S. 430 (1968). Alexander v. Holmes County Board of Education, 396 U.S. 19 (1969) and Swann v. Charlotte-Mecklenburg Board of Education, 402 US. 1, 30-31 (1971).

Then, in Keyes v. School District No. 1413 U.S. 189 (1973), the Court made clear that the North and West were required to comply with the Court's desegregation mandates. In Keyes, the Court required the City of Denver to dismantle a school system that its school districts had purposefully segregated.

To deal with discrimination on the basis of race and ethnicity as complicated by language differences, the Supreme Court determined in Lau v. Nichols, 414 U.S. 563 (1974), that the failure of a school system to provide appropriate services to Chinese students who were no proficient in English to allow meaningful participation in the educational process. It therefore constituted discrimination under Title VI of the Civil Rights Act.

The Supreme Court has also dealt some blows to desegregation and equality in education. In San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 12-14, 55 (1973), the Court held that the vastly unequal expenditures between different school districts did not violate the Equal Protection Clause despite the concentration of minority students in districts with drastically lower expenditures. In Milliken v. Bradley, 418 U.S. 717, 745 (1974), the Court excluded many suburban districts from desegregation plans by limiting desegregation remedies to the school district in which the constitutional violation occurred. As Whites rushed to the suburbs, this decision limited options for desegregation in many cities that had large concentrations of minority students and few Whites.

Disparate Impact. With respect to the second obligation of Article 2(1)(c), practices that have discriminatory effects are prohibited by certain federal civil rights statutes, even in the absence of any discriminatory intent underlying those practices. Thus, such practices may be nullified under the force of those statutes, consistent with Article 2(1)(c). This is true of the Voting Rights Act of 1965, which Congress amended in 1982 to make clear that practices that have a discriminatory effect on minority voters violate Section 2 of that statute. The same is true under Title VII of the 1964 Civil Rights Act, the federal regulations implementing Title VI of the 1964 Civil Rights Act, and the Fair Housing Act, as those statutes have been interpreted by the Supreme Court and lower courts. Griggs v. Duke Power Co., 401 U.S. 424 (1971) (Title VII); Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582 (1983) (Title VI implementing regulations); R. Schwemm, Housing Discrimination Law and Litigation 10.04 (1990) (noting that although the Supreme Court has yet to address the issue, lower courts have uniformly held that disparate impact claims may be brought under the Fair Housing Act, even in the absence of discriminatory intent).

While evidence of a disparate impact alone can establish a violation of the Voting Rights Act, the Fair Housing Act and Titles VI and VII of the 1964 Civil Rights Act, it is not sufficient to demonstrate a Constitutional violation of equal protection (under the Fifth or Fourteenth Amendments). In such cases, the plaintiff must establish that the challenged act was done with discriminatory intent. See Washington v. Davis, 426 U.S. 229 (1976) (Equal Protection Clause); General Building Contractors Ass'n, Inc. v. Pennsylvania, 458 U.S. 375 (1982) (18 U.S.C. sec. 1981); R. Schwemm, Housing Discrimination Law and Litigation 10.04 (1990). This is not to say that disparate impact is irrelevant in equal protection or Sections 1981 or 1982 litigation, however. Determining whether discriminatory purpose exists "demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266 (1977). As the Supreme Court noted in Arlington Heights, disparate impact "may provide an important starting point" for that inquiry. Id. Indeed, where racial disparities arising out of a seemingly race-neutral practice are especially stark, and there is no credible justification for the imbalance, discriminatory intent may be inferred. Casteneda v. Partida, 430 U.S. 482 (1977). In most cases, however, adverse effect alone is not determinative, and courts will analyze statistical disparities in conjunction with other evidence that may be probative of discriminatory intent. Arlington Heights, 429 U.S. at 266-67. If the totality of the evidence suggests that discriminatory intent underpins the race-neutral practice, the burden shifts to the defendant to justify that practice. See Mt. Healthy City School Bd. of Education v. Doyle, 429 U.S. 274 (1977).


In its recently adopted General Recommendation XIV, the Committee declared that "in seeking to determine whether an action has an effect contrary to the Convention, it will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or ethnic origin." The Committee's use of the term "unjustifiable disparate impact" indicates its view that the Convention reaches only those race-neutral practices that both create statistically significant racial disparities and are unnecessary, i.e., unjustifiable. This reading of Article 2(1)(c) tracks the standards for litigating disparate impact claims under Title VII, the Title VI implementing regulations, and the Fair Housing Act. It is also consistent with equal protection and Sections 1981 and 1982 standards, to the extent that statistical proof of racial disparity -- particularly when combined with other circumstantial evidence -- is probative of the discriminatory intent necessary to make out a claim under those provisions. In the view of the United States, Article 2(1)(c) does not impose obligations contrary to existing U.S. law.



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