Update from Geneva: During February 20-22, 2008, SALT joined other NGOs in Geneva to participate in the review by United Nations Committee on the Elimination of Racial Discrimination (CERD) of the United States periodic report setting out alleged compliance with the terms of the International Convention on the Elimination of All Forms of Racial Discrimination. The U.S. signed the treaty in 1994. Ben Davis, professor at University of Toledo School of Law, represented SALT as part of the delegation organized by the United States Human Rights Network (USHRN). Click here for access to podcasts on CERD Committee's review in Geneva. 

The USHRN brought together a diverse group of civil society organizations, each with specific concerns about U.S. compliance with its obligations under the treaty. SALT’s filing concentrated on the decrease in the number of students of color admitted to American law schools and the activities of the Department of Education and U.S. Commission on Civil Rights to dismantle affirmative action despite the Supreme Court’s decision in Grutter v. Bollinger (2003).

The purpose of the Geneva meeting was to provide information to the CERD members and to the CERD Rapporteur to influence their reaction to the U.S. periodic report, and ultimately influence the content of the CERD Concluding Observations on the U.S. periodic report. Mr. Linos-Alexandre Sicilianos was the key person reviewing the U.S. periodic report. The process includes the CERD Rapporteur asking the US delegation questions based on the US filing and NGO “Shadow reports.” The US was given an opportunity to answer these questions. Then those questions and US responses were presented to the USHRN delegation, including SALT, for further comments.

The USHRN delegation was broad and diverse: Western Shoshones, Hawaiian Islanders, Katrina victims, Human Rights Watch, ACLU, Amnesty International, National Day Laborers Organizing Network, Center for Reproductive Rights, Law Enforcement Working Group, among others.

The U.S. periodic report placed emphasis on distinctions between correlation and causation of racial disparities while the CERD emphasis is more in terms of direct and indirect effects that result in disparate impact. During the questioning sessions on February 21-22, the Rapporteur and CERD member questions were often based on NGO challenges to the U.S. periodic report. Rendition and torture issues came in along with every imaginable aspect of racial discrimination in American society. The language of the CERD treaty includes “special measures” and “affirmative action” rather than the limited language that has become a part of the current Supreme Court’s analysis of racial disparities and remedies available. Ben Davis concluded that the U.S. relied mostly on legalistic approaches rather than policy or vision that would truly address problems of discrimination and racial inequality.

Each of the USHRN members prepared a closing document that included four parts: positive developments, concerns, recommendations, and follow up. These were combined into a final document that was submitted by USHRN to the CERD Rapporteur.  SALT thanks Ben Davis for his hard work and expertise.

The CERD Concluding Observations responding to the U.S. periodic report are now available on line, which resulted in this observation:

"15. The Committee notes with concern that recent case law of the U.S. Supreme Court and the use of voter referenda to prohibit states from adopting race-based affirmative action measures have further limited the permissible use of special measures as a tool to eliminate persistent disparities in the enjoyment of human rights and fundamental freedoms. Article 2 (2)."

"The Committee reiterates that the adoption of special measures “when circumstances so warrant” is an obligation arising from Article 2, paragraph 2, of the Convention. The Committee therefore calls once again on the State party to adopt and strengthen the use of such measures when circumstances warrant their use as a tool to eliminate the persistent disparities in the enjoyment of human rights and fundamental freedoms and ensure the adequate development and protection of members of racial, ethnic and national minorities."

The essence of SALT's initial filing is described here: Rather than devise ways to encourage and support African American and Mexican American students to enter and succeed in law schools after a precipitous drop in enrollment, the U.S. Commission on Civil Rights and the Department of Education are pressuring the American Bar Association (ABA) to adopt accrediting standards that will adversely impact the availability of legal education to students of color and other non-traditional students.

The United States is a signatory, since 1994, to the international treaty the Convention on the Elimination of All Forms of Racial Discrimination (CERD). CERD is monitored by the United Nations High Commissioner for Human Rights. Periodically signatory countries must file reports on their progress towards the goals of the treaty.

In April 2007, the United States filed its periodic report. Non-governmental organizations then have an opportunity to respond to the U.S.’s representations.

In January 2008, the Society of American Law Teachers (SALT) submitted an individual response to the U.S. filing, claiming several major violations of the terms of the CERD Treaty. Briefly, these are SALT’s objections:

1. The under-representation of racial and ethnic minorities in American legal education is the result of the government’s continued misuse of its accreditation power and raises concerns about the rights of racial minorities to education and training under Article 5 (e)(v).

2. The exclusion of minorities from the legal profession also implicates the requirement of equal treatment of under-represented communities before tribunals and other justice organs under Article 5(a).

3. Under-representation of minorities within the legal profession questions the efficacy to protect minorities and provide them with legal remedies for discrimination under Article 6.

4. Because a legal education is an important entry route into political office, minority under-representation also adversely affects exercise of political rights under Article 5(c).

The recent actions by the U.S. Commission on Civil Rights and the Department of Education regarding the accreditation process of law schools will have the effect of further diminishing the opportunities for students of color to enter law schools. Several Convention protections meant to address de facto discrimination are impacted by this illicit pressure:

• Article 1(4): requiring special measures for adequate advancement to ensure equal enjoyment of human rights and fundamental freedoms
• Article 2(1): requiring that the government condemn and eliminate discrimination and promote understanding
• Article 2(2): mandating special concrete measures to ensure adequate development and protection of certain racial groups
• Committee Recommendation XIV: calling for the end to practices and legislation that are discriminatory in effect, if not in purpose.

In addition, in December 2007, SALT joined other human and civil rights organizations in a larger filing by the US Human Rights Network, contesting US compliance with CERD. Click here for access to that document. To view the press release issued by US Human Rights Network, click here.

UPDATE: SALT also joined with other human and civil rights organizations in an amicus brief, filed in San Francisco, using the CERD treaty as grounds to uphold a local anti-discrimination ordinance. SALT thanks Constance de la Vega, Frank C. Newman International Human Rights Clinic, University of San Francisco, School of Law for her extraordinary efforts in this endeavor. Click here for a copy of the brief. On February 19, 2008, the California Supreme Court granted the petition to allow the amicus brief.