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Vernellia R. Randall, Racial Discrimination in Health Care in the United States as a Violation of the International Convention on the Elimination of All Forms of Racial Discrimination, 14 University of Florida Journal of Law and Public Policy 45 -91 (Fall, 2002) (201 Footnotes Omitted)
“Of all the forms of inequality, injustice in health is the most shocking and the most inhuman.”
Equal access to quality health care is a crucial issue facing the United States. For too long, too many Americans have been denied equal access to quality health care on the basis of race, ethnicity, and gender. Cultural incompetence of health care providers, socioeconomic inequities, disparate impact of facially neutral practices and policies, misunderstanding of civil rights laws, and intentional discrimination contribute to disparities in health status, access to health care services, participation in health research, and receipt of health care financing. This disparity in health care is doubly significant given the devastating racial disparity in health status that exists. The combination of racial disparity in health status, institutional racism in health care and inadequate legal protection points to serious human rights violations under the “International Convention on the Elimination of All Forms of Racial Discrimination”(CERD or Convention).
II. International Convention on the Elimination of All Forms of Racial Discrimination
The International Convention on the Elimination of All Forms of Racial Discrimination (CERD) was adopted in 1965 by unanimous vote of the U.N. General Assembly. Until ratification of the Convention on the Rights of the Child in 1993, CERD was the most widely ratified of the core human rights treaties. The Convention was signed on behalf of the United States on September 28, 1966. It was not transmitted to the U.S. Senate for advice and consent to ratification for almost twelve years (February 23, 1978). The U.S. Senate resisted its adoption and ratification; consequently, the treaty was not ratified for another sixteen years. Thus, it was almost thirty years (1994) after its adoption by the United Nations before the U.S. Senate gave its advice and consent to ratify CERD.
CERD prohibits racial discrimination, which it broadly defines as any distinction based on “race, colour, descent, or national or ethnic origin” that has the purpose or effect of impairing human rights and fundamental freedoms. CERD requires nations that have ratified CERD to review, amend, or nullify laws and practices that have the purpose or effect of discriminating on the basis of race. However, the United States ratified CERD with three reservations, an understanding, and a declaration that qualified the extent to which the United States would adhere to the treaty. Nevertheless, under the reporting procedure of CERD's Article 9, the United States agreed to submit reports every two years, with the first report having been due in 1995. The United States did not submit a report until 2000.
Under CERD, a committee (CERD Committee) reviews the reports and determines whether adequate legal protections for groups that have experienced racial discrimination have been implemented. It also examines evidence of de facto discrimination. Although not legally binding, the CERD Committee makes concluding observations about the reports and may make suggestions on how the reporting states could improve their application of CERD.
CERD procedure permits interested nongovernmental organizations to submit shadow reports on a state's compliance to the Convention. Numerous organizations submitted shadow reports, including the Allied Research Center, which through its Transnational Racial Justice Initiative issued a report entitled “The Persistence of White Privilege and Institutional Racism in U.S. Policy: A Report on U.S. Government Compliance with the International Convention on the Elimination of All Forms of Racial Discrimination” (White Privilege Shadow Report). The White Privilege Shadow Report included an Introduction by Makani Themba-Nixon, Editor for the Transnational Racial Justice Initiative. In her introduction, Ms. Themba-Nixon noted a number of problems with the initial U.S. report and provided a summary of issues relating to U.S. noncompliance with the Convention. The White Privilege Shadow Report also included discussions of Welfare Policy by Julie Quiroz-Martinez of the Center for Third World Organizing, Health Policy by Vernellia R. Randall of The University of Dayton School of Law, Education Policy by Expose Racism and Advance School Excellence (ERASE Project) of the Applied Research Center, and Land Use Policy by Gavin Kearney of the Institute on Race and Poverty.
This Article discusses disparity in health status, institutional discrimination in health care, and inadequate legal enforcement, which point to serious human rights violations under CERD. This Article then makes specific recommendations to the CERD Committee and includes several appendices, including “Concluding Observations of the CERD Committee.” The basic thesis of this Article is that persistent discrimination in U.S. health care contributes to continuing health disparities, which is a violation of the U.S. obligations under CERD.
III. Racial Disparity in Health Status of the U.S. Population
The need to focus specific attention on the racism inherent in the institutions and structures of health care is overwhelming. Racial minorities are sicker than White Americans and are dying at a significantly higher rate. These are undisputed facts. There are many examples of disparities in health status, both between racial/ethnic groups and between men and women: infant mortality rates are 2 1/2 times higher for African-Americans, and 1 1/2 times higher for American Indians, than for Whites; the death rate from heart disease for African-Americans is higher than for Whites; 50% of all AIDS cases are among a minority population that comprises only 25% of the U.S. population; the prevalence of diabetes is 70igher among African-Americans and twice as high among Hispanics than it is among Whites; Asian-Americans and Pacific Islanders have the highest rate of tuberculosis of any racial/ethnic group; cervical cancer is nearly five times more likely among Vietnamese-American women than among White women; women are less likely than men to receive lifesaving drugs for heart attacks; more women than men require bypass surgery or suffer a heart attack after an angioplasty.
Yet, despite these significant health status heathcare disparities, many Americans have been denied equal access to quality health care on the basis of race, ethnicity, or gender. Cultural incompetence of health care providers, socioeconomic inequities, disparate impact of facially neutral practices and policies, misunderstanding of civil rights laws, and intentional discrimination all contribute to disparities in health status, access to health care services, participation in health research, and receipt of health care financing.
Doctors Michael Byrd and Linda Clayton clearly laid out the long history of racism and medicine in their two-part seminal works entitled “An American Dilemma: A Medical History of African Americans and the Problem of Race: Beginnings to 1900” and “An American Dilemma: A Medical History of African Americans and the Problem of Race: 1900 to 2000.” In their work, Drs. Byrd and Clayton show that the problems of minority health status and minority health care access are a part of a long continuum of racism and racial discrimination dating back almost four hundred years.
Since colonial times, the racial dilemma that affected America also distorted medical relationships and institutions. There has been active assignment of racial minorities to an underfunded, overcrowded, and inferior public health care sector. Furthermore, medical leadership has helped to establish the slaveocracy, create the racial inferiority myths, build a segregated health subsystem, and maintain racial bias in the diagnosis and treatment of patients. Only after 350 years of active discrimination and neglect were efforts made to admit minorities into the “mainstream” health system. However, these efforts were flawed, and since 1975 minority health status has steadily eroded, and continues to experience racial discrimination in both access to health care and in the quality of health care received.
However, current issues in health disparity are not isolated to problems in the health system. They are the cumulative result of both past and current racism throughout U.S. culture. For instance, because of institutional racism, minorities have less education and fewer educational opportunities. Minorities are disproportionately homeless and have significantly poorer housing options. Due to discrimination and limited educational opportunities, minorities disproportionately work in low pay, high health risk occupations (e.g., migrant farm workers, fast food workers, garment industry workers). Historic and current racism in land and planning policy also plays a critical role in minority health status. Minorities are much more likely to have toxic and other unhealthy uses sited in their communities than Whites, regardless of income. For example, over-concentration of alcohol and tobacco outlets and the legal and illegal dumping of pollutants both pose serious health risks to minorities. Exposure to these risks is not a matter of individual control or even individual choice. It is a direct result of discriminatory policies designed to protect white privilege at the expense of minority health.
IV. Institutional Racism and Racial Discrimination in the U.s. Health Care System
Compounding the racial discrimination experienced generally is the institutional racism in health care that affects minority access to health care and the quality of health care received. Despite efforts over the past thirty years to eliminate discrimination and reduce racial segregation, there has been little change in the quality of, or access to, health care for many minorities. According to the U.S. Commission on Civil Rights, “Despite the existence of civil rights legislation equal treatment and equal access are not a reality for racial/ethnic minorities and women in the current climate of the health care industry. Many barriers limit both the quality of health care and utilization for these groups, including ... discrimination.” Racial discrimination in health care delivery, financing, and research continues to exist, and racial barriers to quality health care manifest themselves in a number of ways.
A. Lack of Economic Access to Health Care
More than 38.4 million Americans are uninsured with no economic access to health care. A disproportionate number of the uninsured are racial minorities. As access to health insurance in the United States is most often tied to employment, racial stratification of the economy due to other forms of discrimination has resulted in a concentration of racial minorities in low wage jobs. These jobs are almost always without insurance benefits. As a result, disproportionate numbers of the uninsured are racial minorities. Recent changes in the “safety net” have resulted in increased problems. Specifically, welfare reform enacted in 1996 changed the structure of public assistance, resulting in a disparate impact on women and minorities.
One of the direct effects of welfare reform has been a reduction in the use of medicaid by those who qualify due to an unawareness of eligibility requirements, resulting in an increased number of uninsured. A second effect has been that the subsequent increased poverty among those in need of assistance has caused a worsening of health status and an increase in the need for health care services. In fact, a disproportionate number of racial minorities have no insurance, are unemployed, are employed in jobs that do not provide health care insurance, are disqualified for government assistance programs, or fail to participate because of administrative barriers. Gaps in health status and the absence of relevant health information are directly related to access to health care.
B. Barriers to Hospitals and Health Care Institutions
The institutional/structural racism that exists in hospitals and health care institutions manifests itself in (1) the adoption, administration, and implementation of policies that restrict admission; (2) the closure, relocation, or privatization of hospitals that primarily serve the minority community; and (3) the continued transfer of unwanted patients (known as patient dumping) by hospitals and institutions. Such practices have a disproportionate effect on racial minorities, banishing them to either distinctly substandard institutions or to no care at all.
C. Barriers to Physicians and Other Providers
Areas that are heavily populated by minorities tend to be medically underserved. Disproportionately few White physicians have their practices located in minority communities. Minority physicians are significantly more likely to practice in minority communities, making the education and training of minorities extremely important. Yet, due to discrimination in post-secondary education, racial biases in testing, and quality-of-life issues affecting school performance, minorities are seriously underrepresented in health care professions. The shortage of minority professionals affects not only access to health care, but also access to the power and resources needed to structure the health care system, leaving its control almost exclusively in White hands. The result is an inadequate, ineffective and marginalized voice on minority health care issues.
D. Racial Disparities in Medical Treatment
Differences in health status reflect, to a large degree, inequities in preventive care and treatment. For instance, African-Americans are more likely to require health care services, but are less likely to receive them. Disparity in treatment has been well documented in a number of studies, including studies done on AIDS, cardiology, cardiac surgery, kidney disease, organ transplantation, internal medicine, obstetrics, prescription drugs, treatment for mental illness, pain treatment, and hospital care. Certainly, difference in treatment can be based on a number of different factors, including clinical characteristics, income, and medical or biological differences. However, race plays an independent role. There are marked differences in time spent, quality of care and quantity of doctor's office visits between Whites and African-Americans. Whites are more likely to receive more, and more thorough, diagnostic work and better treatment and care than people of color — even when controlling for income, education, and insurance. Differences also exist in the number of doctor's office visits between Whites and African-Americans, even when controlling for income, education, and insurance. Furthermore, researchers have concluded that doctors are less aggressive when treating minority patients. Thus, the most favored patient is “White, male between the ages of 25 and 44.” In fact, at least one study indicated a combined effect of race and gender resulting in significantly different health care for African-American women.
E. Discriminatory Policies and Practices
Discriminatory policies and practices can take the form of medical redlining, excessive wait times, unequal access to emergency care, deposit requirements as a prerequisite to care, and lack of continuity of care, which all have a negative effect on the type of care received. Because discriminatory practices are often facially neutral, citing exact practices becomes a difficult task. There are many examples, however, of policies and practices that disproportionately affect racial and ethnic minorities, such as refusal to admit patients who do not have a physician with admitting privileges at that hospital, exclusion of medicaid patients from facilities, and failure to provide interpreters and translations of materials, to name a few. One significant example is a racially-neutral federal medicaid policy that limits the number of beds a nursing home can allocate to medicaid recipients. The policy encourages these facilities to move existing patients who have depleted their assets and are now newly eligible for medicaid into medicaid beds as they become available. It is mostly White women who have the assets to afford long-term care without medicaid and who live long enough to deplete those assets. The effect of this policy is that fewer medicaid resources are spent on nursing for minority populations even though minorities represent a larger portion of the medicaid population and have more illness. The combination of minority overrepresentation and government under-spending in medicaid is yet another example of the kind of structural and institutional racial discrimination that persists in many areas of the health care system.
F. Lack of Language and Culturally Competent Care
A key challenge has been to get the government to establish clear standards for culturally competent health care. Culturally competent care is defined as care that is “sensitive to issues related to culture, race, gender, and sexual orientation.” Cultural competency involves ensuring that all health care providers can function effectively in a culturally diverse setting; it involves understanding and respecting cultural differences. In addition to recognizing the disparities in health status between White Americans and minority groups, society must recognize differences within groups as well. Ethnic and racial minority communities include diverse groups with diverse histories, languages, cultures, religions, beliefs, and traditions. This diversity is reflected in the health care minorities receive and the experiences they have with the health care industry. Without understanding and incorporating these differences, health care cannot be provided in a culturally competent manner. Nonetheless, there has been relatively little research done on the differences in accessing quality health care by racial/ethnic subgroups, and few data are available on many of these groups.
One example of institutional barriers to culturally competent care is the prevalence of linguistic barriers that also affect the quality of health care services, particularly for Hispanics and Asian Americans. The failure to use bilingual, professionally and culturally competent, and ethnically matched staff in patient/client contact positions results in lack of access, miscommunication and mistreatment for those with limited proficiency in English. This failure includes not providing education or information at the appropriate literacy level. Furthermore, “English only” laws — laws that restrict access to public services to those with proficiency in English — also have an acute and racially disproportionate impact on minorities. The lack of an official government infrastructure (extending from the federal to the local level) to ensure standards of culturally competent care and equal access to services is inconsistent with Article 5 of CERD.
G. Disparate Impact of the Intersection of Race and Gender
The unique experiences of women of color have been largely ignored by the health care system. These women share many of the problems experienced by minority groups in general, and by women as a whole. However, race discrimination and sex discrimination often intersect so as to magnify the difficulties minority women face in gaining equal access to quality health care. In addition to barriers restricting access to health care for racial/ethnic minorities, there are barriers to health care that predominantly affect minority women. There are also gender differences in medical use, provision of treatments, and inclusion in research. This is partly the result of different expectations of medical care between men and women and of gender bias of health care providers. Furthermore, the difficulty minority women face accessing adequate health care, and all its components, is not limited to illnesses that affect both male and female populations. Rather, there is evidence that minority women often find it difficult to access quality health care related to gender-specific illnesses, such as breast cancer.
An additional symptom of gender bias in the health care system that can affect outcomes is the way the medical concerns of minority women are not taken as seriously as those of minority men and are often dismissed as the result of emotional distress or as a psychosomatic condition. Further, some health issues of minority women, such as violence against women, have been largely ignored by the medical community and seen primarily as a social issue, not necessarily a health issue. Part of the problem is that medical professions have historically lacked a female perspective, in much the same way that the minority perspective is missing, therefore giving little attention to the health concerns of minority women.
Policies and practices that increase government surveillance and control of minority women are also a key factor in health status. Minority women are less likely to receive sympathetic intervention by law enforcement in cases of domestic violence. Women who, after calling upon police for help in such cases, become victims of both domestic violence and police violence. Family planning is another area where public policy has had a negative impact on health status and life choices of minority women. Minority women do not have equal access to preventive medicine or the full range of birth control options available. Barriers include lack of family-planning services or facilities in their communities; lack of medicaid or other publicly-funded health insurance coverage of certain services, medications or procedures; and disproportionately higher prescriptions of medically risky or unnecessary procedures, such as contraceptive implants or forced sterilization. State and local policies are more likely to be discriminatory than federal policies. There are few standards for ensuring equal access and equal treatment at the state and local levels. With jurisdiction over health care issues increasingly devolving to the state and local levels, there is a critical need for a clear regulatory infrastructure that provides redress for these barriers and remedies and consequences for policies and practices with discriminatory outcomes.
H. Inadequate Inclusion in Health Care Research
Despite volumes of literature suggesting the importance of race, ethnicity, and culture in health, health care, and treatment, there is relatively little information available on the racial, ethnic, and biological differences that affect the manifestations of certain illnesses and their treatments. Billions of dollars are spent each year on health research ($35.7 billion in 1995). However, a strikingly minute percentage of those funds are allocated to research on issues of particular importance to women and minorities, and to research by women and minority scientists (21.5% and .37%, respectively). In response to years of exclusion of women and minorities, several statutory requirements have been enacted to ensure that research protocols include a diverse population. However, the health condition of women and minorities will continue to suffer until they are included in all types of health research.
I. Lack of Data and Standardized Collection Methods
Current data collection efforts fail to capture the diversity of racial and ethnic communities in the United States. Disaggregated information on subgroups within the five racial and ethnic categories is not collected systematically. Further, racial and ethnic classifications are often limited on surveys and other data collection instruments, and minorities are often misclassified on vital statistics records and other surveys and censuses. It is important to collect the most complete data on racial and ethnic minorities and subpopulations to fully understand the health status of all individuals, as well as to recognize the barriers they face in obtaining quality health care. The lack of data on different minority populations (such as Asian-Americans) makes it difficult to conduct research studies and comparative analyses. Furthermore, the lack of a uniform data collection method makes obtaining an accurate and specific description of race discrimination in health care difficult. The existing data collection does not allow for regularly collecting race data on provider and institutional behavior.
J. Rationing Through Managed Care
The health care financing system has been steadily moving to managed care as a means of rationing health care. Without proper oversight, which does not currently exist, managed care will, over time, tend to place increasingly stringent requirements on providers. Providers may fail to develop more expensive but culturally-appropriate treatment modalities, and they may refuse or minimize the expenditures necessary to develop an adequate infrastructure for minority communities. The potential for discrimination, particularly racial/ethnic discrimination, to occur in the context of managed care is significant and is recognized as such by the Office of Civil Rights, leading commentators, and advocates for civil rights in health care services, financing, and treatment. However, little has been done to protect minorities from this risk of discrimination. The U.S. Commission on Civil Rights reported:
The Office of Civil Rights (OCR) also has not sufficiently prepared its investigative staff to identify and confront instances of discrimination by managed care organizations. Despite indications of discrimination prohibited under Title VI, OCR has not yet developed policy guidance specifically addressing Title VI compliance in the managed care context. OCR headquarters indicate that OCR has known about the potentially discriminatory activities of managed care organizations since 1995, yet the office has been loath to encourage or support the regional investigators in identifying cases.
Several managed-care practices can have a disparate impact on minorities. For example, one of the most common ways in which Managed Care Organizations (MCOs) discriminate against minorities is in the MCOs' selection of available providers. A physician or other type of provider that serves mainly poor minorities may not be included in a managed care network, because the provider's patients might be labeled “too costly.” Further, some plans target suburban areas for enrollment while ignoring inner-city areas, a process known as selective marketing. In addition, some MCOs may be limiting the access of medicaid patients to the full array of providers by sending these patients provider lists containing only providers that accept medicaid, resulting in segregated provider lists. Other methods MCOs have used to discriminate against medicaid patients include excluding sections of the inner city from the service area; applying a stricter definition of medical necessity, the standard used to determine whether a patient will receive a particular test or treatment; and longer waiting times for new-patient or urgent-care appointments.
V. Inadequacy of Legal Efforts to Eliminate Racial Discrimination in Health Care
It might be that civil rights laws often go unenforced; it might be that current inequities spring from past prejudice and long standing economic differences that are not entirely reachable by law; or it might be that the law sometimes fails to reflect, and consequently fails to correct, the barriers faced by people of color.
— Derrick Bell
There are a number of federal laws which address access to health care: Title XVIII (medicare) and Title XIX (medicaid) of the Social Security Act, Title IX, and the Hill Burton Act. However, federal law related to eliminating racial discrimination in health care delivery is limited to Title VI of the Civil Rights Act. Racial inequality in health care persists in the United States despite laws against racial discrimination, in significant part because of the inadequacy of Title VI. First, despite a regulatory requirement to produce data, the Office of Civil Rights Title VI enforcement effort has produced little consistent data for evaluating Title VI compliance. Second, there has been “little uniformity in how different states handle Title VI requirements, little guidance, little analysis of the information collected by this process, [and] no research and development.” Third, Title VI lacks specific definitions of prohibited discrimination and acceptable remedial action. Fourth, OCR has relied on individual complaints as a means of enforcement.
Even if the provisions of Title VI were improved and data collected, the legal system within which Title VI operates would still be inadequate for the particular difficulties present in the health care system. That is, the legal system has had particular difficulty addressing issues of unthinking discrimination, discrimination resulting from actions based on biases and stereotypes. While legal standards for discrimination have not always centered on intent, they do so now. Thus, to prove a disparate treatment claim an individual must show that the defendant intentionally discriminated. Such a standard means that few of the discriminatory acts that occur in the health care system can be successfully litigated, since most occur from unthinking or unconscious biases. As long as the law requires a conscious discriminatory purpose for disparate treatment liability, individual discrimination claims cannot address the issue of unconscious prejudice.
Furthermore, the health care system presents several additional problems. First, similar to the situation that arises when racial minorities use housing and lending institutions, individuals can be totally unaware that the provider or institution has discriminated against them. Second, because of the very specialized knowledge required in medical care, individuals can be totally unaware that they have been injured by the provider. Third, the health care system, through managed care, has actually built-in incentives that encourage unconscious discrimination. Because of these issues, an appropriate legal structure is essential to eliminating institutional/cultural racism.
In an effective public health policy, appropriate state and federal laws must be available to eliminate discriminatory practices in health care. The crux of the problem, given managed care, the historical disparity in health care, and unthinking discrimination, is that the law does not address the current barriers faced by minorities, and the executive branch, the legislatures and the courts are all reluctant to hold health care institutions and providers responsible for institutional racism. The U.S. Commission on Civil Rights found:
There is substantial evidence that discrimination in health care delivery, financing and research continues to exist. Such evidence suggests that Federal laws designed to address inequality in health care have not been adequately enforced by federal agencies ... [Such failure has] ... resulted in a failure to remove the historical barriers to access to quality health care for women and minorities, which, in turn has perpetuated these barriers.
VI. Violations of the International Convention on the Elimination of All Forms of Racial Discrimination
As indicated in the U.S. Report on CERD, the Federal Government has laws that make it illegal to discriminate based on race (Title VI of the Civil Rights Act of 1964). The report fails to admit that the effort of the United States in ensuring equal access to quality health care has not only been ineffective and inefficient, but has also perpetuated racial discrimination. Astonishingly, the United States fails to even mention its own assessment of civil rights enforcement in health care conducted by the U.S. Commission on Civil Rights. In a two-volume critical analysis, the Commission accused the government of perpetuating disparities in health status and access:
[The government] has failed to enforce civil rights laws vigorously and appropriately. The failure [of the government] to be proactively involved in [civil rights] health care issues or initiatives has resulted in continuance of policies and practices that, in many instances are either discriminatory or have a disparate impact on minorities .... Thus, there remain disparities in access to health care and in health care research and unequal distribution of health care financing.
Although Congress has enacted civil rights laws designed to address specific rights, such as equal opportunities in employment, education, and housing, it has not given health care the same status. As a consequence, discrimination in health care is uncorrected, which has the consequence of perpetuating differences in health status. Thus, in the area of health care, the United States has failed to meet its obligation under Article 2(1)(a), Article 2(1)(c), Article 2(1)(d), and Article 5(e)(iv) of the Convention on the Elimination of Racial Discrimination (CERD).
A. Article 2(1)(a)
Under Article 2(1)(a), “Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation.” Specifically, the United States has failed to “ensure that all public authorities and public institutions, national and local, shall act in conformity” with its obligation under Article 2(1)(a). Throughout its 1999 report to the President and Congress, the U.S. Commission on Civil Rights found significant weaknesses in the governmental enforcement efforts. Specifically, the Commission noted:
The deficiencies in the [governmental] enforcement efforts ... largely are the consequences of [a] fundamental failure to recognize the tremendous importance of its mission and to embrace fully the opportunity it has to eliminate disparities and discrimination in the health care system. Although [the government through the] Office of Civil Rights (OCR) has attempted to identify noncompliance with the Nation's civil rights laws over the years, it has failed to understand that all of its efforts have been merely reactive and in no way have they remedied the pervasive problems within the [health care] system. [The government's] failure to address these deeper, systemic problems is part of a larger deficiency ... a seeming inability to assert its authority within the health care system. As a result of the myopic perspective ... the [government] appears unable to systematically plan and implement the kind of ... “redevelopment” policy that it so clearly needs.
Further, the Commission found significant weaknesses in the enforcement efforts of the Office for Civil Rights. In particular, the Commission noted the governmental failure to implement many of the recommendations indicated by the Commission in its 1996 report on Title VI enforcement.
Despite some focus on the health of minorities, the government has generally failed to enforce civil-rights laws vigorously and appropriately. The failure of the government to be proactively involved in health care issues or initiatives has resulted in the continuance of policies and practices that, in many instances, are either discriminatory or have a disparate impact on minorities and women.
Thus, there remain disparities in access to care, treatment, research, and financing in the United States as a result of the U.S. failure to meet its obligation under Article 2(1)(a).
B. Article 2(1)(c)
Under Article 2(1)(c), “Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists.” The United States has failed to meet its obligation. While the United States has undertaken extensive measures to review national laws and regulations which have the effect of creating or perpetuating racial discrimination, it has failed to make necessary revisions and modifications in the law as recommended by the U.S. Commission on Civil Rights. As noted by the Commission:
In the United States today, there remain tremendous racial and gender disparities in access to quality health care services and health care financing, as well as in the benefits of medical research. Many of these disparities continue to plague the Nation's health care system because the [government] ... has failed to enforce the crucial nondiscrimination provisions of the Federal civil rights laws with which it is entrusted. The ... enforcement operation is lacking in virtually every key area .... Most significantly, ... [the government] generally has failed to undertake proactive efforts such as issuing appropriate regulations and policy guidance, allocating adequate resources for onsite systemic compliance reviews, and initiating enforcement proceedings when necessary.
The United States, while undertaking extensive measures to review the national effects of creating or perpetuating racial discrimination, has failed to “amend, rescind or nullify any laws and regulations” that have such effects. There has been little judicial activity in reviewing and shaping antidiscrimination law in health care. Despite taking five years to submit a report under its obligation, the government's report failed to identify this lack of oversight. Furthermore, the United States failed to review state and local laws and regulations.
C. Article 2(1)(d)
Under Article 2(1)(d), “Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization.” The United States has failed to meets its obligation to “bring to an end, by all appropriate means, including legislation,” racial discrimination in health care. For instance, the U.S. Congress has not enacted civil-rights laws relating to health care, even though it has enacted specific antidiscrimination laws in the areas of employment, education, and housing. Unequal access to health care is a nationwide problem that primarily affects women and people of color. According to the U.S. Commission on Civil Rights:
For 35 years, [the government through the Department of Health and Human Services (HHS)] and its predecessor agency, the Department of Health, Education, and Welfare (HEW), have condoned policies and practices resulting in discrimination against minorities and women in health care. In many ways, segregation, disparate treatment, and racism continue to infect the Nation's health care system. [The government] ... has pursued a policy of excellence in health care for white Americans by investing in programs and scientific research that discriminate against women and minorities. [The government] ... essentially has condoned the exclusion of women and minorities from health care services, financing, and research by implementing an inadequate civil rights program and ignoring critical recommendations concerning its civil rights enforcement program. The Commission, the HHS Office of Inspector General, and the HHS Civil Rights Review Team have offered many recommendations for improving civil rights enforcement ... However, failure to implement these recommendations has resulted in failure of the Federal Government to meet its goals of ensuring nondiscrimination and equal access to health care for minorities and women.”
D. Article 5(e)(iv)
Under Article 5(e)(iv),
In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: ... e) Economic, social and cultural rights, in particular: ... (iv) The right to public health, medical care, social security and social services.
The United States has failed to “prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, ... [including] [t]he right to public health, medical care, social security and social services.” Such failure has been noted by the U.S. Commission on Civil Rights:
Over the past 35 years the U.S. Commission on Civil Rights has been monitoring health care access for minorities and women, focusing primarily on the important role civil rights enforcement efforts can play in providing equal access to quality health care. Although there have been some improvements in accessing health care over the last three decades, the timid and ineffectual enforcement efforts of the [government through the] Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) have fostered, rather than combated, the discrimination that continues to infect the Nation's health care system. This is evident in the segregation, disparate treatment, and racism experienced by African Americans, Hispanic Americans, Native Americans, Asian Americans and Pacific Islanders, and members of other minority groups, as well as in the persistent barriers to quality health care that women continue to confront.
As outlined above, discrimination in health care delivery, financing, and research does exist. This is due, in significant part, to the failure to enforce federal laws designed to address inequality in health care. Specifically, the Commission noted that the government's failure to remove the historical barriers to access to quality health care perpetuated discrimination.
From 1980 to 1999, the government has also neglected its civil-rights enforcement responsibilities. This neglect is well documented. According to the U.S. Commission on Civil Rights:
[The government's] steadfast refusal to address concerns about the quality of its efforts indicates a fundamentally limited view of the role civil rights enforcement can and should play in the health care industry, a view that is deeply ingrained within the culture of the Department of Health and Human Services (HHS). What makes this disregard of recommendations for vigorous civil rights enforcement efforts particularly shameful is that HHS provides Federal assistance to medical programs and facilities that save lives every day. While the activities of agencies charged with protecting the rights to equality of opportunity in education and employment are matters of tremendous importance, the failure to conduct strong civil rights enforcement in health care literally can mean the difference between life and death [for many people of color].
It is important to remember that all the major actors in the government have failed to fulfill their responsibilities to act to eliminate discrimination. The President “failed to offer the oversight, support, and assistance to civil rights enforcement.” Congress not only failed to provide oversight, it drastically reduced appropriations. While the President and HHS implemented a number of minority health initiatives, “none of these efforts contains a strong civil rights enforcement component or attempts to develop the key role that OCR should be playing in these efforts”. The U.S. Commission on Civil Rights notes that this lack of civil-rights enforcement is “particularly ineffective when compared with some of the more sophisticated civil-rights enforcement programs the Commission has evaluated.”
Finally, the Commission notes that this lack of enforcement is of particular concern:
[b]ecause many new forms of discrimination against minorities have emerged as the Nation has moved from “fee-for-service” medicine to managed care. Without appropriate ... [civil rights enforcement] ... neither recipients or beneficiaries of Federal funding, nor OCR investigative staff can develop a clear understanding of what constitutes discrimination by managed care and other health care organizations.
One such form of discrimination is embedded in the business necessity rationale where, under the guise of cost cutting and fiduciary risk reduction, policies and practices that are biased against racial minorities are considered justifiable discrimination. The CERD term “unjustifiable disparate impact” indicates that the Convention also covers those practices that appear race-neutral but create statistically significant racial disparities and are unnecessary, i.e., unjustifiable.
VII. Recommendations and Conclusion
U.S. health policy is inconsistent with several provisions of CERD, including virtually all of Articles 2 and 5. Federal agencies have repeatedly found discrimination and bias in health care but have consistently failed to address these problems. Disparities and bias range from treatment and diagnosis to access, funding, training, and representation of racial minorities in the health care system. Millions suffer and thousands lose their lives each year as a result of discrimination in health. Current trends toward managed care only exacerbate disparities. To rectify the situation the CERD Committee should make the following actions:
1. The Committee should clearly define the current situation related to health care for minorities in the United States (the significant disparate impact in the health status of minorities, in access to health care, and in diagnosis and treatment of illness) to be a violation of the International Convention on the Elimination of All Forms of Racial Discrimination, that is, human rights.
2. The Committee should make it clear to the United States that “justifiable” discrimination does not include racial discrimination resulting from policies and practices that limit access and quality of health care received; or racial discrimination resulting from policies and practices that have a disparate impact where there is an alternative that would either not discriminate or have less impact.
3. The Committee should ask the United States to make significant progress, by its next report, in eliminating disparities in health and health care including, but not limited to,
A. increasing the availability of facilities and training of providers in communities of color;
B. adequately funding the Department of Health and Human Services' Office of Civil Rights to enforce civil-rights laws related to non-discrimination in health;
C. designing specific civil right laws, regulations, and policy guidance to address health care discrimination;
D. developing clear standards for culturally competent health care;
E. adequately funding research by minority and women scientists;
F. establishing funding guidelines that promote research on women and minorities;
G. developing policy guidance specifically addressing Title VI compliance in the health care setting (i.e., managed care); and
H. developing specific training related to the use of race and class in research and intervention development.
4. The Committee should ask the United States to develop a unified data-collection system in government programs (medicaid, medicare, and military), which would allow easy determination of facilities, providers, and organizations that discriminate in the diagnosis and treatment of illness.
Medicine has found cures and controls for many afflictions, resulting in the improved health of all Americans — African-Americans, Asian-Americans, Hispanic-Americans, Native-Americans and White Americans. However, the health institutions have failed to extend the same magnitude of improvement in health among White Americans to minority populations. Health institutions have failed to eliminate the inequitable racial distribution of health care. They also perpetuate distinctions among racial groups. The law in the United States has proven ineffective in eliminating racial discrimination in health care. This situation is a violation of basic human rights and is intolerable.
Appendix An Selected Paragraphs from the United States Report Pursuant to Article 9 of the Convention
71. Although there has been significant progress in the improvement of race relations in the United States over the past half-century, serious obstacles remain to be overcome. Overt discrimination is far less pervasive than it was 30 years ago, yet more subtle forms of discrimination against minority individuals and groups persist in American society. In its contemporary dimensions discrimination takes a variety of forms, some more subtle and elusive than others. Among the principal causative factors are:
(k) Disadvantages for women and children of racial minorities. Often, the consequences of racism and racial discrimination are heightened for women and children. Whether in the criminal justice system, education, employment or health care, women and children suffer discrimination disproportionately. Startlingly high incarceration rates for minority women and children have placed them at a substantial social, economic and political disadvantage;
(l) Health care. Persons belonging to minority groups tend to have less adequate access to health insurance and health care. Historically, ethnic and racial minorities were excluded from obtaining private insurance, and although such discriminatory practices are now prohibited by law, statistics continue to reflect that persons belonging to minority groups, particularly the poor, are less likely to have adequate health insurance than White persons. Racial and ethnic minorities also appear to have suffered disproportionately the effects of major epidemics like AIDS. For example, in 1999, 54 per cent of new cases of HIV infection occurred among [African-Americans], even though they make up less than 15 per cent of the population;
(n) Discrimination against immigrants. Whether legal or illegal, recent immigrants often encounter discrimination in employment, education and housing as a result of persistent racism and xenophobia. Some also contend that U.S. immigration law and policy is either implicitly or explicitly based on improper racial, ethnic and national criteria. Language barriers have also created difficulties of access, inter alia, to health care, education and voting rights for some.
136. The President has executive authority to direct the activities of federal agencies in furtherance of the Constitution and laws of the United States. In exercise of this authority, the President has issued executive orders that prohibit discrimination in federal programmes and that encourage diversity in the federal workplace to the extent that such actions are consistent with federal law. For example:
(d) On 11 February 1994, in Executive Order 12898, President Clinton directed every federal agency to identify and consider adverse human health or environmental effects of its programmes, policies, and activities on minority and low-income populations. The Order also established a working group on environmental justice comprising the heads of the major executive agencies. The working group's task was to coordinate, provide guidance and serve as a clearinghouse for the federal agencies on their environmental justice strategies;
182. The President convened an Advisory Board of seven distinguished Americans to assist him with the Initiative. The Advisory Board worked with the President to engage the many diverse groups, communities, regions, and various industries in this country. The President asked the Advisory Board to join him in reaching out to local communities and listen to Americans from all different races and backgrounds, to achieve a better understanding of the state of race relations in the United States. The Advisory Board also studied critical substantive areas in which racial disparities are significant, including education, economic opportunity, housing, health care and the administration of justice. Once the year-long effort was completed, the Advisory Board submitted a report to President Clinton concerning its findings and recommendations for creative ways to resolve racial disparities.
376. Health and health care. Although the U.S. health care system provides the finest overall care in the world, the data show significant disparities with regard to certain health measures. For example:
— Infant mortality rates are 2.5 times higher for African-Americans than for Whites, and 1.5 times higher for Native Americans. In 1997, the infant mortality rates for Whites was 6.0 deaths per 1,000 live births, compared to 13.7 deaths per 1,000 live births for [African-Americans];
— [African-American] men under age 65 have prostate cancer at nearly twice the rate of White men;
— The death rate from heart disease for [African-Americans] is 41 per cent higher than for Whites (147 deaths per 100,000, compared with 105 deaths);
— Diabetes is twice as likely to affect Hispanics and Native Americans as the general population. Diabetes rates are 70 per cent higher for [African-Americans] than for Whites;
— [African-American] children are three times more likely than White children to be hospitalized for asthma;
— The maternal mortality rate for Hispanic women is 23 per cent higher than the rate for non-Hispanic women. [African-American] women have a 5 per cent higher death rate in childbirth than non-Hispanic White women;
— [African-Americans] experience disproportionately high mortality rates from certain causes, including heart disease and stroke, homicide and accidents, cancer, infant mortality, cirrhosis and diabetes;
— Native Americans are 579 per cent more likely to die from alcoholism, 475 per cent more likely to die from tuberculosis and 231 per cent more likely to die from diabetes than Americans as a whole;
— Individuals from minority racial and ethnic groups account for more than 50 per cent of all AIDS cases, although they represent only 25 per cent of the U.S. population;
— The rate of AIDS cases was 30.2 per 100,000 for Whites in 1993. It fell to 9.9 in 1998. The rate for [African-Americans] in 1993 was 162.2; 84.7 in 1998. The rate for Hispanics fell from 89.5 in 1993 to 37.8 in 1998.
377. Health care professionals. In 1996, about 740,000 medical doctors practiced in the United States (280 per 100,000 population). Minorities are likely to live in areas under-served by these and other medical professionals. Poor urban communities with high proportions of [African-Americans] and Hispanics averaged only 24 physicians per 100,000. Poor communities with low proportions of [African-Americans] and Hispanics averaged 69 doctors. This shortage is exacerbated by data that show [African-American] physicians are five times more likely than other doctors to treat [African-American] patients, and Hispanic doctors are 2.5 times more likely than other doctors to treat Hispanic patients. Minority doctors are also more likely to treat medicaid or uninsured patients than White doctors from the same area.
378. Health care facilities. There are about 6,200 hospitals in the United States providing more than one million beds. Before the 1960s, hospitals were voluntary organizations and did not face the same legal requirements as public institutions. In addition, hospital medical staffs were self-governing, which gave them freedom to select members, choose patients, and adopt their own payment policies. In many parts of the country, health care services and providers were segregated by race. Since passage of civil rights laws in the 1960s, these practices are no longer legal.
379. Health care financing. It is primarily through health insurance that Americans pay for their health care. Employer-provided health plans cover some of the costs of health care; others rely on private health insurers or managed care organizations, such as health maintenance organizations. Those without insurance must rely on financial assistance to obtain health coverage, and may qualify for public assistance, such as supplementary security insurance.
380. Public assistance for health care includes medicare (for the elderly) and medicaid (for the non-elderly poor). Medicare provides health insurance coverage for persons aged 65 years and older, and individuals with disabilities. Medicare provides health care coverage for more than 38 million people at a cost of about $200 billion. Medicaid provides coverage for low-income persons. It is administered by the states with matching funds from the Federal Government. Medicaid covers 37 million people at a cost of about $164 billion. While medicaid rules and policies are set and monitored by federal and state agencies, the administration of the programmes is run by insurance companies.
381. Although medicare and medicaid provide more than 70 million people with health coverage, a large number of Americans remain uninsured and unable to access quality health care. Most of the uninsured are minorities and women with children, resulting in unequal access to health care. Almost 30 per cent of Hispanic children, and 18 per cent of [African-American] children are estimated to be without health insurance. Moreover, immigrants, those who are unemployed, work part-time, or are retired often have inadequate insurance.
382. Eliminating disparities in health care access. The U.S. Government has long sought to address the need for equal access to quality health care. During the past 35 years in particular, federal civil rights laws and policies have addressed the need to ensure equal access to health care and non-discrimination in health care programmes for racial and ethnic minorities. Congress has created several federal statutes designed to achieve equal protection of the laws through an emphasis on equality of access to institutions, including the nation's health care system. These statutes have helped establish the framework for the Federal Government's efforts to eliminate discrimination in the health care delivery system.
383. Two statutes are particularly relevant to health care: (a) the Hill-Burton Act, formally Title VI and XVI of the Public Health Service Act of 1964, Public Law No. 79-725, 60 Stat. 1040 (1946), codified as amended at 42 U.S.C. sec. 291-291-0 (1994) and Pub. L. No. 93-641, 88 Stat. 2225 (1974); and (b) Title VI of the Civil Rights Act of 1964, Pub. L. No. 88-352, Title VI, 78 Stat. 252 (codified as amended at 42 U.S.C. sec. 2000d-2000d-7 (1994)).
384. When it was first enacted in 1946, the Hill-Burton Act was designed as a means for facilitating hospital construction, especially in rural communities. In 1964, however, Congress reformulated Hill-Burton as a key provision in the Public Health Service Act to include the modernization of existing hospital facilities. In 1974 the Act was amended yet again, this time requiring that hospitals receiving funds provide a specified amount of service to those unable to pay. Additionally, a facility receiving funds was to be made available to all members of the community in which it was located, regardless of race, colour, national origin or creed.
385. The Department of Health and Human Services (HHS) is the federal agency with primary responsibility for enforcing Title VI in the health care context, as well as other civil rights statutes and provisions addressing equal access to quality health care. HHS seeks to ensure compliance with the non-discrimination provisions of these laws by relying on implementing regulations, policy guidance, comprehensive full-scope compliance reviews, complaints investigations, mediation, settlement agreements, technical assistance, outreach and education programmes, as well as through enforcement actions.
386. The impact of medicare and medicaid, originally passed by Congress in 1965, has been enormous. In 1964, Whites were almost 50 per cent more likely than [African-Americans] to see a physician. By 1994 this ratio had been reversed: [African-Americans] were about 12 per cent more likely than Whites to have seen a doctor in the preceding two years. However, [African-Americans] continue to be twice as likely to use hospital outpatient services, while Whites are substantially more likely to visit a private physician.
387. President Clinton has committed the nation to an ambitious goal of eliminating by 2010 disparities in health status experienced by racial and ethnic groups in the United States. President Clinton targeted six health priority areas: infant mortality, breast and cervical cancer screening and management, cardiovascular disease, diabetes, child and adult immunization levels, and HIV/AIDS. As part of this effort, for example, the Center for Disease Control recently awarded $9.4 million to 32 community coalitions in 18 states to reduce the level of disparities in one or more of the priority areas.
388. Furthermore, in response to studies showing that language barriers in health care present serious problems for a large percentage of Americans with limited English proficiency (LEP), on 11 August 2000, President Clinton issued Executive Order 13166, “Improving access to services for persons with limited English proficiency”. The President ordered that “each Federal agency shall examine the services it provides and develop and implement a system by which LEP persons can meaningfully access those services consistent with, and without unduly burdening, the fundamental mission of the agency. Each Federal agency shall also work to ensure that recipients of Federal financial assistance (recipients) provide meaningful access to their LEP applicants and beneficiaries. To assist the agencies with this endeavour, the Department of Justice has today issued a general guidance document (LEP Guidance), which sets forth the compliance standards that recipients must follow to ensure that the programmes and activities they normally provide in English are accessible to LEP persons and thus do not discriminate on the basis of national origin in violation of Title VI of the Civil Rights Act of 1964, as amended, and its implementing regulations.” As described in the LEP Guidance, recipients “must take reasonable steps to ensure meaningful access to their programmes and activities by LEP persons.”
390. On 11 February 1994, President Clinton issued Executive Order 12898 to all departments and agencies of the Federal Government directing them to take action to address environmental justice with respect to minority populations and low-income populations. Agencies were directed, among other things, to address disproportionate human health or environmental effects of programmes on such populations, to collect additional data on these subjects, and to coordinate their efforts through a newly established inter-agency working group.
391. While most environmental laws do not expressly address potential impacts on low-income and minority communities, Executive Order 12898 directs the Environmental Protection Agency (EPA) “[t]o the greatest extent practicable and permitted by law ... [to] make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programmes, policies, and activities on minority populations and low-income populations.”
446. “Changing America: Indicators of Social and Economic Well-Being by Race and Hispanic Origin” documents current differences in key indicators of well-being: education, labour markets, economic status, health, crime and criminal justice, and housing and neighbourhoods. The information in this publication provides a factual base on which to build dialogue about race.
Appendix B: Excerpts from the White Privilege Shadow Report
A. OVERVIEW OF PROBLEMS WITH THE INITIAL US CERD REPORT
4. The government report ignored the CERD framework ....
5. The government failed to undertake an adequate assessment of policies and practices as outlined by the Convention. Furthermore, it limited what examination it did undertake to the federal or national level.
7. The report makes several misleading claims including:
a. The government claims that it has met its obligations outlined in Article
7. There has been no government public education campaign on these issues ....
b. Throughout the document, the government describes the role of courts to limit and proscribe policies that address racial discrimination as if courts operate independently, away from government influence and outside of the framework of law and public debate ....
c. ... [T]here are a number of laws that are inconsistent with U.S. obligations under the CERD and further, that government action has played a primary role in “creating or perpetuating racial discrimination.”
8. Throughout the U.S. report, the government has attempted to rationalize what is actually policy-based discrimination (e.g., its failure to address disparate racial impact in public education, health and more) as a result of legal conditions beyond its control (decisions made by “independent” courts) and even the purview of the CERD ....
B. SUMMARY OF ISSUES IN US NONCOMPLIANCE WITH THE CONVENTION RAISED IN THIS REPORT
9. The US government has not undertaken any “effective measures to review governmental, national and local policies” (Article II (1)(c) ....
10. The US government has not undertaken “special and concrete measures to ensure the adequate development and protection of certain racial groups” (Article II) (2) despite a preponderance of evidence of racism from both non-governmental organizations and government agencies ....
11. The US Government has not acted in compliance with provisions in Article 5 to prohibit and eliminate discrimination in such areas as equal treatment before the law; right to housing, public health, medical care and other social services; and equal access to public services ....
12. The US government does not assure “effective protection and remedies” or “adequate reparation or satisfaction for any damage suffered” (Article 6) ....
13. The US government has not undertaken “effective measures particularly in the fields of teaching, education, culture and information, with a view to combating prejudices.” ...
The U.S. policy in this arena is inconsistent with several provisions of the CERD, particularly much of Article 2 and Article 5.
Welfare policy in the U.S. has always been highly racialized and this affects equal access to services. Given the pervasiveness of employment discrimination in the U.S., current policy trends to tie access to social services to employment have only exacerbated racial bias and discrimination in these programs.
Discrimination in social services is heightened for those with limited proficiency in English ....
· The government should allocate more resources to effective data collection by race and ethnicity and effective regulation and monitoring in order to track discriminatory effects of these policies. These data need to be analyzed for their discriminatory effects, rather than the intent driving the changes in policy ....
· Clear federal standards for equal treatment and access should be established with special attention to racial discrimination and addressing the needs of those who have limited proficiency in English (reading and speaking).
· Addressing discrimination and bias will require that the U.S. [undergo] ... serious revisions in policy and practice at all levels of government ....
Several issues of CERD non-compliance were identified including unequal access to education and in the case of discipline policy, extreme discrimination with regard to equal treatment under the law.
Schools are incredibly segregated with whites the least likely to attend school with other racial groups. White privilege is institutionalized in education in a myriad of ways including unequal funding and support and bias in curriculum and testing.
Increasing policing of students of color has meant greater law enforcement involvement, which has resulted in racially disproportionate suspensions, expulsions and referrals to the criminal justice system.
Public policy toward predominantly minority primary and secondary schools discourage integration and facilitate isolation and inequity. Policies toward predominantly minority post secondary institutions are characterized by aggressive mandates guaranteeing expanded access for whites. Predominantly white institutions of higher learning are under no such mandates for assuring access to racial minorities.
Design Racial Equity Plans at the school, district, state, and national levels that include annually quantifiable goals.
Schools must act immediately to correct the uneven application of the most severe disciplinary actions, including suspension and expulsion.
End academic tracking and open the way for all students to participate in a challenging curriculum, including advanced classes.
Develop policies that guarantee the equitable distribution of resources that take into account the critical role of quality public education as one remedy for past discrimination.
Institute more accurate and sensitive standards for measuring student progress and college aptitude and discontinue the use of biased and ineffective standardized tests.
At the post secondary level, affirmative action programs and other special measures should be established to increase the number of minorities completing college and graduate school.
Exclusionary Land Use Practices
KEY FINDINGS AND RECOMMENDATIONS
Exclusionary land use practices create a number of harms that unjustifiably impede the rights of people of color in the United States to housing (Art. 5.e.iii), work (Art. 5.e.i.), and education (Art. 5.e.v.).
Federal legislation should be enacted that clearly defines racial discrimination in all relevant anti-discrimination statutes and should be amended to explicitly include policies and actions with unjustifiable disparate impacts on people of color.
Federal legislation should be enacted that places an affirmative duty on states to ensure that their zoning and other land use powers are not being used in manners inconsistent with the mandates of the Fair Housing Act, the Convention on the Elimination of Racial Discrimination, and other relevant international standards. This should include the requirement that public authorities undertake a Fair Housing Impact Assessment process prior to actions with significant housing implications.
The Government should undertake a comprehensive federal review of the presence of racial discrimination in land use practices in place throughout the United States.
Appendix C - Selected Paragraphs from the Summary Record of the 1475th Meeting: United States of America. 22/08/2001.
12. Mr. PILLAI. He stressed that education in its entirety was the most basic and critical component of a State's efforts to promote racial equality and harmony, and its impact on health, employment and poverty could not be overemphasized. He hoped, too, that the United States Government would pay due regard to the various reports circulated by a number of civil society organizations relating to racial discrimination in education.
13. Ms. BRITZ said she wondered in general, how, in a country with such a large amount of anti-discrimination legislation, such a high degree of inequality could still exist in matters such as health care, criminal justice, educational opportunities and housing; and whether the legislation itself had particular weaknesses or whether it was not the appropriate cure for racial inequality. A more specific question concerned discrepancy as to what was understood by discrimination, as defined in article 1, paragraph 1 of the Convention and further clarified in the Committee's General Recommendation XIV. According to a Supreme Court interpretation (para. 235 of the report), discriminatory intent, as well as disparate impact, had to be shown in order to demonstrate a constitutional violation of equal protection. But intent was much more difficult to prove than impact. Reading between the lines of the report, it was clear that its authors were aware of that discrepancy.
21. Ms. JANUARY-BARDILL, while recognizing that the Fifth and Fourteenth Amendments to the Constitution prohibited racial discrimination on the part of any public authority (report, para. 177) and that there existed a vast legal environment for implementation of measures relating to the Convention (report, paras. 84-144), expressed concern that, despite the existence of the legal framework and implementing mechanisms, numerous factors continued to have a negative effect on implementation (paras. 71 and 72). High levels of institutional and systemic racial discrimination persisted, as evidenced for example by lack of educational opportunity, discrimination within the criminal justice system, unequal health care for minorities and disadvantaged women, and continued inequality for the African-American population. She stressed that covert racial discrimination was sometimes more dangerous than overt racial discrimination and its effects more devastating and therefore wondered who was to blame for factors which continued to affect implementation and for inadequate funding of public services, how local, state and federal authorities were reacting to violations of legislation at the institutional level, and who would address issues relating to equal access and ensure that equal treatment continued.
23. Mr. YUTZIS, referring to article 5 and the obligation of States parties to guarantee the rights of all, noted that among the factors affecting implementation described in the report was “under-funding of federal and State civil rights agencies” (para. 71(b)), and requested statistics on levels of funding for human rights activities, specifically statistics expressed not only in actual figures, which were relative and could be misleading, but also as a percentage of gross domestic product, which would provide a better understanding of the priority and resources allotted to human rights questions, and should preferably be broken down by areas such as housing, health, etc.
31. [Mr. THORNBERRY.] On the question of affirmative action, article 2, paragraph 2, of the Convention made it very clear that special measures to remedy disadvantage were mandatory when the circumstances so warranted. Such were the special measures taken by the United States Government on behalf of Native Hawaiians (report, para. 48). Although the Supreme Court had cast doubt on the Congress's authority to legislate in such a manner, and although various lower-court judgements [sic] had ordered an end to other affirmative action programmes (report, para. 275), the notion of equality employed in the Convention was one of equality in fact, which implied that those at a disadvantage must be treated differently and that such affirmative treatment could legitimately be ended only when the need for it had clearly ceased. That goal had not been reached in the United States, as indicated in paragraph 276 of the report.
Selected Concluding Observations of the Committee on the Elimination of Racial Discrimination: United States of America. 14/08/2001.
The Committee on the Elimination of Racial Discrimination, issued a report outlining its observations regarding the United States compliance. Below are several paragraphs related to health:
380. The Committee considered the initial, second and third periodic reports of the United States of America (CERD/C/351/Add.1), submitted as one document, which were due on 20 November 1995, 1997 and 1999 respectively, at its 1474th, 1475th and 1476th meetings (CERD/C/SR.1474-1476), on 3 and 6 August 2001. At its 1486th meeting (CERD/C/SR.1486), on 13 August 2001, it adopted the following concluding observations:
383. In view of the dialogue held, the Committee wishes to emphasize that irrespective of the relationship between the federal authorities, on the one hand, and the States, which have extensive jurisdiction and legislative powers, on the other, with regard to its obligation under the Convention, the Federal Government has the responsibility to ensure its implementation on its entire territory.
390. The Committee, concerned by the absence of specific legislation implementing the provisions of the Convention in domestic laws, recommends that the State party undertake the necessary measures to ensure the consistent application of the provisions of the Convention at all levels of government.
392. The Committee also notes with concern the position of the State party with regard to its obligation under article 2, paragraph 1 (c) and (d), to bring to an end all racial discrimination by any person, group or organization, that the prohibition and punishment of purely private conduct lie beyond the scope of governmental regulation, even in situations where the personal freedom is exercised in a discriminatory manner. The Committee recommends that the State party review its legislation so as to render liable to criminal sanctions the largest possible sphere of private conduct which is discriminatory on racial or ethnic grounds.
393. The Committee draws the attention of the State party to its obligations under the Convention and, in particular, to article 1, paragraph 1, and general recommendation XIV, to undertake to prohibit and to eliminate racial discrimination in all its forms, including practices and legislation that may not be discriminatory in purpose, but in effect. The Committee recommends that the State party take all appropriate measures to review existing legislation and federal, State and local policies to ensure effective protection against any form of racial discrimination and any unjustifiably disparate impact.
398. While noting the numerous laws, institutions and measures designed to eradicate racial discrimination affecting the equal enjoyment of economic, social and cultural rights, the Committee is concerned about persistent disparities in the enjoyment of, in particular, the right to adequate housing, equal opportunities for education and employment, and access to public and private health care. The Committee recommends that the State party take all appropriate measures, including special measures according to article 2, paragraph 2, of the Convention, to ensure the right of everyone, without discrimination as to race, colour, or national or ethnic origin, to the enjoyment of the rights contained in article 5 of the Convention.
399. With regard to affirmative action, the Committee notes with concern the position taken by the State party that the provisions of the Convention permit, but do not require States parties to adopt affirmative action measures to ensure the adequate development and protection of certain racial, ethnic or national groups. The Committee emphasizes that the adoption of special measures by States parties when the circumstances so warrant, such as in the case of persistent disparities, is an obligation stemming from article 2, paragraph 2, of the Convention.
[FNa1]. This Article is based on the Health Policy discussion of “The White Privilege Shadow Report” which was submitted to the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) committee. The primary modification has been to add a discussion section about the International Convention on the Elimination of All Forms of Racial Discrimination, to add more citations and to include relevant appendices.
[FNaa1]. Professor of Law, University of Dayton School of Law; J.D., Northwestern School of Law Lewis and Clark College, 1987; M.S.N., University of Washington, 1978; B.S.N., University of Texas, 1972. Thanks to Makani Themba-Nixon whose visions on race and health care inspires me, who provided me with significant professional input, and who did an incredible job editing the original shadow report. Thanks to my sister Brenda Randall, my brothers James Ernest Randall and Jerry Randall and to my sons, Tshaka Randall and Issa Randall, without their continuing support this Article would not exist.
[FN1]. This often cited quote is attributed to Dr. Martin Luther King, Jr. However, I have been unable to locate the original source.