11. The definition of racial discrimination continues to be a major impediment towards the fullimplementation of the convention. Under the Convention and other customary human rightslaw, racial discrimination is understood to mean both intentional and
discrimination.With few exceptions cognizable racial discrimination in the US requires evidence of
todiscriminate. This requirement is contrary to the Convention’s framework and does not reflectthe real-world operation of discriminatory behavior in contemporary American society.
12. As recognized by both the Convention and the Committee, discrimination includes policiesand practices that produce outcomes that have a disparate impact, including those impacts inthe areas of education, health, housing, and other economic, social, and cultural rights aselaborated in Article 5 of ICERD.13. The Committee expressed concern in both 2001 and 2008 that the US law, policy, and courtpractice relies on a definition of racial discrimination at odds with their obligations under article1, paragraph 1 of the Convention to ensure prohibition of conduct not only discriminatory notonly in purpose but also in effect.
It recommended in both years that the US review itslegislation and practices to ensure protection against all forms of racial and ethnicdiscrimination and any unjustifiably disparate impact upon persons from different racial andethnic backgrounds.14. Numerous U.N. human rights monitors, including the Special Rapporteur on Education,Racism, and Housing have highlighted the challenge of racial disparities in combating racialdiscrimination in the United States.
15. Each of the Special Rapporteur's noted the presence of racial disparities and highlighted theimportance of policies to reduce these disparities.
16. The US has an extensive constitutional and legislative framework to address intentionaldiscrimination by public and private actors but lacks adequate protections and remediesrelated to the racially disparate impact of “neutral” policies and practices.17. The fourteenth amendment of the Constitution contains an Equal Protection Clause thatformally recognizes the principle of equality before the law. The fifteenth amendment further extends the right to vote to all races.18. The advent of the “intent” doctrine, established through a 1976 court ruling, essentiallynarrowed the fourteenth amendment by requiring that victims of discrimination to prove “intent”to discriminate as a condition to getting a remedy; this is in direct conflict with the Convention.
5 A Summary of U.S. NGO responses to the U.S. 2007 Combined Periodic Reports to the International Committee on the Eliminationof All Forms of Racial Discrimination, February 2008, 6. Available athttp://www.ushrnetwork.org/files/ushrn/images/linkfiles/CERD/0_Executive%20Summary.pdf 6 As defined in Article 1 and General Recommendation XIV, racial discrimination includes distinctions and exclusions that have an“unjustifiable disparate impact” upon the rights of freedoms of particular racial or ethnic groups.7 Special Rapporteur on the Right to Education Katarina Tomasevski visited the United States from 24 September to 10 October 2001. Her report (E/CN.4/2002/60/Add.1) was submitted on 17 January 2002. Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, Doudou Diène, visited the US from 19 May to 6 June 2008. Hisreport (A/HRC/11/36/Add.3) was submitted on 28 April 2009. Special Rapporteur on Adequate Housing as a Component of theRight to an Adequate Standard of Living, and on the Right to Non-Discrimination in this Context, Raquel Rolnik, visited the US from22 October to 8 November 2009. Her report was submitted on 12 February 2010.