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Shadow Report on the United Nations International Convention on the Elimination of All Forms of Racial Discrimination

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Shadow Report on the United Nations International Convention on the Elimination of All Forms of Racial Discrimination LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW UNEQUAL OPPORTUNITY: A CRITICAL ASSESSMENT OF THE U.S. COMMITMENT TO THE ELIMINATION OF RACIAL DISCRIMINATION A Response to the 2007 Periodic Report of the United States in Preparation For Country Review of the United States By the United Nations Committee on the Elimination of Racial Discrimination LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW UNEQUAL OPPORTUNITY: A CRITICAL ASSESSMENT OF THE U.S. COMMITMENT TO THE ELIMINATION OF RACIAL DISCRIMINATION A Response to the 2007 Periodic Report of the United States in Preparation For Country Review of the United States By the United Nations Committee on the Elimination of Racial Discrimination LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW Copyright © 2007 By Lawyers’ Committee for Civil Rights Under Law All rights reserved. This report, or parts thereof, may not be reproduced in any form without permission. UNEQUAL OPPORTUNITY: A CRITICAL ASSESSMENT OF THE U.S. COMMITMENT TO THE ELIMINATION OF RACIAL DISCRIMINATION A Response to the 2007 Periodic Report of the United States in Preparation For Country Review of the United States By the United Nations Committee on the Elimination of Racial Discrimination. Lawyers’ Committee For Civil Rights Under Law ______________________________________________________________________________ Copyright © 2007 By Lawyers’ Committee for Civil Rights Under Law Lawyers’ Committee for Civil Rights Under Law 1401 New York Avenue, NW Suite 400 Washington, DC 20005 202-662-8600 www.lawyerscommittee.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW Acknowledgments The Lawyers’ Committee for Civil Rights Under Law (“Lawyers’ Committee”) greatly appreciates the tremendous contribution of Morrison & Foerster LLP to the production of this Shadow Report on the United Nations International Convention on the Elimination of All Forms of Racial Discrimination. This Shadow Report would not have been possible without the time and talent of many Morrison attorneys and staff. We especially commend the leadership of master editors and coordinators Annemarie O’Shea and Nicholas Spiliotes. A team of twelve attorneys and three paralegals at Morrison & Foerster put in countless hours working with the Lawyers’ Committee to frame the issues presented in this shadow report as well as to research, gather data, write, and edit the final product. We also express appreciation for the substantive contributions made to various sections of our Shadow Report by Cleary Gottlieb Steen & Hamilton LLP; including Kelly Frawley, Scott Regents, and Antonio Reynolds; the Lawyers’ Committee International Board Committee, under the leadership of its Co-Chairpersons, Douglas Cassel and Preeta Bansal; and the US Human Rights Network. Finally, we recognize the Lawyers’ Committee staff for its time and contributions in coordinating this Shadow Report and assisting in the drafting of its various sections. Lawyers’ Committee staff includes Kim Alton, Nancy Anderson, Barbara Arnwine, Nicole Birch, John Brittain, Kenneth Chandler, Sarah Crawford, Michael Foreman, Tricia Jefferson, Marcia Johnson-Blanco, Callie Kozlak, Trisha Miller, Daria Neal, Joseph Rich, David Tipson, David Salie, Michelle Woolley; and Lawyers’ Committee interns Denise Ballesteros and Francis Nugent. Morrison & Foerster LLP greatly appreciates the opportunity to have worked with its long-standing client, the Lawyers’ Committee, in producing this Shadow Report on the United Nations Convention on the Elimination of All Forms of Racial Discrimination. Morrison & Foerster LLP views the Shadow Report as contributing to the advancement of civil rights through this important international treaty reporting process. LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW TABLE OF CONTENTS Page INTRODUCTION AND EXECUTIVE SUMMARY .......................................................... 1 CHAPTER 1: COMPARATIVE LEGAL ANALYSIS OF THE CERD COMMITTEE’S 2001 RECOMMENDATIONS AND THE UNITED STATES REPORT TO THE CERD COMMITTEE OF APRIL 2007 ........................................................................................... 7 Introduction. ............................................................................................................ 7 Overview of the CERD Committee’s Concerns and Recommendations to the U.S. Government................................................................................................ 7 Concerns:................................................................................................................. 7 Recommendations:................................................................................................... 8 The United States’ Responsibility to Follow Up on the CERD Committee’s 2001 Recommendations. .......................................................................................... 9 Analysis of the United States’ 2007 Response........................................................ 10 Proposed Questions for the CERD Committee to Put to the U.S. Government Regarding Responding to the 2001 Recommendations. .......................................... 22 Proposed Concerns and Recommendations to the U.S. Government Regarding Responding to the 2001 Recommendations. ........................................................... 22 Recommendations to the U.S. Government Regarding Responding to the 2001 Recommendations.................................................................................................. 23 CHAPTER 2: VOTING RIGHTS ............................................................................... 24 Introduction. .......................................................................................................... 24 Voting Rights Act Reauthorization......................................................................... 24 Litigation by the DOJ............................................................................................. 27 The Help America Vote Act................................................................................... 27 Government-Issued Photo Voter I.D. Laws. ........................................................... 28 Felon Disfranchisement.......................................................................................... 29 DC Voting Rights. ................................................................................................. 31 Recommendations.................................................................................................. 32 CHAPTER 3: EQUAL JUSTICE AND EQUAL ACCESS TO JUSTICE ................... 33 Introduction. .......................................................................................................... 33 -i- TABLE OF CONTENTS (continued) Page Failure to Provide A Right to Counsel in Civil Proceedings Or Adequate Funding For Legal Aid........................................................................................... 34 The U.S. Government Has a Model for Resolving the Legal Needs of the Poor, But Has Restricted and Under-Funded the Program at the Expense of the Poor and Racial Minorities. .............................................................................. 35 Failure to Guarantee a Right to Counsel. ................................................................ 36 Counsel for Criminal Defendants. .......................................................................... 37 Recommendations.................................................................................................. 39 CHAPTER 4: EMPLOYMENT DISCRIMINATION ................................................. 40 Introduction. .......................................................................................................... 40 Enforcement of Employment Protections Negatively Impacts Minorities. .............. 41 Interpretations of Employment Statutes Diminish Employee Rights. ...................... 42 Anti-Immigrant Sentiment Has Led to Employment Discrimination at the Intersections of Race and National Origin. ............................................................. 43 National Origin and Religious Discrimination Against Arab, Muslim, Sikh and South Asian American Communities Post 9/11................................................ 45 Recommendations.................................................................................................. 45 CHAPTER 5: AFFIRMATIVE ACTION.................................................................... 47 Introduction. .......................................................................................................... 47 Laws Enacted to Address Disparities ..................................................................... 48 Affirmative Action and Education.......................................................................... 49 Affirmative Action and Employment. .................................................................... 50 Affirmative Action and Contracting. ...................................................................... 51 Recommendations.................................................................................................. 52 CHAPTER 6: HATE SPEECH AND HATE CRIMES................................................ 53 Introduction. .......................................................................................................... 53 Hate Speech and the First Amendment................................................................... 53 Hate Speech and the Internet.................................................................................
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