Wednesday, June 20, 2018

The Persistence of
White Privilege and
Institutional Racism
in US Policy

A Report on US Government Compliance with the
International Convention on the Elimination of All Forms of Racial Discrimination
March, 2001

Rinku Sen
Director, Transnational Racial Justice Initiative
A Program of the Applied Research Center
3781 Broadway
Oakland, California 94611
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VOICE (510) 653-3415
FAX (510) 653-3427

Executive Summary

This is a shadow report filed to provide additional information and analysis to supplement the US Government's Initial Report of the United States of America to the UN Convention on the Elimination of Racial Discrimination. Although it documents several areas of non-compliance and makes recommendations for improvement, it is not intended to be exhaustive.

Our focus is on the persistence of white privilege, a system that accrues to whites (or European Americans) greater wealth, resources, more access and higher quality access to justice, services, capital -- virtually every form of benefits to be reaped from US society -- than other racial groups. Conversely, white privilege has resulted in impoverishment and injustice for the vast majority of those belonging to racial minorities.

White privilege is more than a set of attitudes or individual opinions. It is an overarching, comprehensive framework of policies, practices, institutions and cultural norms that undergird every aspect of US society. Too often, discussion of racial discrimination focuses solely on the effects on those who are oppressed as if there are no oppressors or beneficiaries.

In this analysis, racial minorities are cast as "problems to be solved" instead of victims of an unjust system. Yet, as 19th century African American freedom fighter Frederick Douglass put it nearly a century ago, " There is no negro problem. The problem is whether the American people have loyalty enough, honor enough, patriotism enough, to live up to their own constitution..." The US will come into compliance with CERD provisions -- and other human rights conventions -- only when it dismantles white privilege and makes the promise of "equality and justice for all" the letter and effect of the law.

Key Findings and Recommendations

� This report found gross inequities and discrimination along racial lines in every area of investigation. Contrary to Government claims, the US Constitution does not offer adequate or clear protection, assurances or remedies for victims. A complete review and revision of US law, at every level, is required to adequately address issues of discrimination.

� The US legal standard requiring that victims of discrimination prove "intent" to discriminate as a condition of remedy is a major barrier to addressing racial inequity in general and meeting CERD obligations in particular. The US must move to making discriminatory effect the standard and develop an appropriate legal and policy framework for actualizing such a standard at every level of government.

� There is currently no central office responsible for providing oversight, coordination, and management of the CERD reporting, evaluation and implementation process. The Government should fund this work adequately and identify such an agency (preferably an NGO with expertise and competency in this arena) to undertake these responsibilities.

� The failure to undertake any assessment at the state and local levels provides an incomplete and inaccurate picture of US CERD compliance. The Government should establish a process with clear timelines and milestones for engaging state and local government in a comprehensive reporting and evaluation process for CERD and other human rights convention to which the Government is a signer.

� The Government's efforts to address hate violence are inadequate. In the US and elsewhere, ethnic and racial minorities, migrants, refugees and displaced people are increasingly victims of violence and repression by the state as well as private, sometimes quasi-government groups (sometimes known in the US as militias). Operating from a political framework of white supremacy and racism, these state agencies and private organizations are contributing to the development of a global "hate" movement. Strong measures must be developed to deal with these issues including:


Standardized reporting and data collection should be established to better track and make public the prevalence and character of these crimes. This data collection and reporting should be adequately funded and undertaken by appropriate non governmental organizations in collaboration with affected communities.

Clear laws, with clear consequences when appropriate, must be established to create disincentives for committing these crimes. Policies and prohibitions must be established to prevent state violence and repression in particular including but not limited to training, remedial hiring and personnel practices, videotaping and other forms of monitoring, civilian review, and a ban on "raids" and similar militaristic tactics.

� We understand that there is a clear difference between free speech, which many nations value, and speech with the purpose of inciting violence against individuals or groups based on their race. Such "hate speech" should not receive any legal protection as it does in the United States. The right to live free of violence and intimidation should certainly outweigh any "right" to speech that threatens the safety of others and incites violence. As such, we urge the United States to remove its RUDs concerning Article 4 of CERD and implement CERD fully.

� The current system of white privilege has its roots in the US conquest and oppression of indigenous peoples and the US role in the Trans-Atlantic slave trade. The inequality and injustice originating from these historic phenomena were maintained and exacerbated by government policies like Jim Crow laws, forced relocation, protective covenants, etc. The US Government must recognize its culpability as related to these issues and immediately institute comprehensive remedies and reparations that address the deep and abiding racism, repression and discrimination that result from these acts and continue to fundamentally affect and shape present contemporary social problems.

 Health Care Policy
Section Author
Vernellia R. Randall

Institute on Race, Health Care and the Law

The University of Dayton School of Law

Key Findings

� US health policy is inconsistent with several provisions of the CERD including virtually all of Articles 2 and 5.

� The Government's own 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.

Key Recommendations

� The current law has proven ineffective in eliminating racial discrimination in health care. The Government should act now to develop a health policy, practice and program infrastructure that brings it in compliance with the CERD.

� The US should define "justifiable" discrimination to exclude racial discrimination resulting from policies and practices that limit access and quality of health care received; and racial discrimination resulting from policies and practices that have a disparate impact.

� The US should require significant progress to be made in eliminating disparities in health and health care.

� The US should require a unified data collection system in government programs (e.g., Medicaid, Medicare, Child Health Insurance Program and military) which would allow easy determination of discriminatory practices.

III. Health Care Policy

Summary of CERD Compliance Issues

70. 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 All Forms of Racial Discrimination (CERD).

71. Article 2(1)(a).

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 out its 1999 report to the President and Congress, the United States Commission on Civil Rights (the US oversight agency) found significant weaknesses in the government's enforcement efforts. Specifically, the commission noted that:

72. "The deficiencies in the [government's] 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 Right (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." (1)

73. Through its 1999 study, the Commission on Civil Rights found significant weaknesses in the Office for Civil Rights' enforcement efforts. In particular, the Commission noted the government's failure to implement many of the recommendations indicated by the Commission in its report on Title VI enforcement issued in 1996:(2)

74. "Despite some focus on minorities' health generally the government has 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."(3)

75. Thus, there remain disparities in access to health care and in health care research, and unequal distribution of health care financing in the United States as a result of the US failure to meet its obligation under Article 2(1)(a).(4)

76. Article 2(1)(c)

Under Article 2(1)(c), the United States has failed to meet its obligation. While the United States has undertaken extensive measures to review national laws and regulation which have the effect of creating or perpetuating racial discrimination, it has failed to make necessary revisions and modification in the law as recommended by the US Commission on Civil Rights. As noted by the Commission:

77. "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."(5)

78. The United States, while undertaking measures to review the national effect 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 or no judicial activity in reviewing and shaping anti-discrimination law in health care. The government's report fails to identify this lack of oversight. The United States, despite taking five years to submit a report under its obligation, has failed to review state and local laws and regulations.

79. Article 2(1)(d)

Under Article 2(1)(d), 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. Although Congress has enacted civil rights laws designed to address specific rights, such as equal opportunity in employment, education, and housing, it has not given health care the same status. ...Unequal access to health care is a nationwide problem that primarily affects women and people of color.(6) According to the Commission on Civil Rights:

80. "...for 35 years, [the government through] 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."(7)

81. Article 5(e)(iv)

Under Article 5(e)(iv), 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] the right to public health, medical care, social security and social services." This failure has been noted by the US Commission on Civil Rights:

82. "Over the past 35 years the US 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 US 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 continue to confront women."(8) [emphasis added]

83. According to the US Commission on Civil Rights, there is substantial evidence that discrimination in health care delivery, financing, and research continues today. Such evidence suggests that Federal laws designed to address inequality in health care have not been adequately enforced by Federal agencies. The Commission noted that Health and Human Service's inability to enforce civil rights laws and the Office of Civil Right's isolation from the rest of the agency, as well as the civil rights community, have resulted in a failure to remove historical barriers to quality health care for minorities. This, in turn, has perpetuated these barriers.(9)

84. For nearly 20 years, from 1980 to 1999, the government has neglected its civil rights enforcement responsibilities to an almost unprecedented degree. Neglect of its civil rights enforcement responsibilities has been well documented.(10)

The consistently weak record has resulted, in part, from the lack of commitment to civil rights enforcement in the United States. (11) According to the 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 of civil rights enforcement in the health care industry -- a view that is deeply ingrained within the culture of the Department of Health and Human Services (HHS).(12) "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."(13) While the activities of agencies charged with protecting the rights of equal access to education and employment are matters of tremendous importance, the failure to conduct strong civil rights enforcement in health care literally means the difference between life and death for many people of color. (14)

70. However, the responsibility for this shameful record does not lie with HHS alone. The rest of the federal Government, namely Congress and the President, has failed to offer the oversight, support, and assistance to civil rights enforcement activities that HHS so desperately needs.(15)

71. Congress has not conducted an oversight hearing on OCR's civil rights enforcement activities since 1987. Congress also has drastically reduced the agency's annual appropriation to a point where it is extremely difficult for the agency to perform its responsibilities effectively. While the [former] Administration has worked with HHS to implement minority health initiatives, none of these efforts contained a strong civil rights enforcement component or attempts to develop the key role that OCR should be playing in these efforts."(16) The commission 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." (17)

72. Finally, the Commission on Civil Rights notes that this lack of enforcement is of particular concern "because 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"(18)

73. 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's use of the 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.

Overview of Racial Disparity in Health Care

"Of all the forms of inequality, injustice in health is the most shocking and the most inhuman."

-- Martin Luther King, Jr.

74. 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 racially 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.(19)

75. The need to focus attention on racism inherent in the institutions and structures of health care is overwhelming. Racial minorities are sicker than white Americans; they are dying at a significantly higher rate. The many examples of disparities in health status between racial/ethnic groups and between men and women are indisputable proof.

� Infant mortality rates are 2.5 times higher for blacks and 1.5 times higher for American Indians, than for Whites.

� The death rate for heart disease for blacks is higher than for whites.

� Individuals from racial and ethnic minority groups account for more than 50 percent of all AIDS cases although they only account for 25 percent of the US population.

� The prevalence of diabetes is 70 percent higher among blacks and twice as high among Hispanics as 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 White women.

� Women are less likely than men to receive life-saving drugs for heart attacks and more women than men require bypass surgery or suffer a heart attack after angioplasty.(20)

70. In their seminal work, An American Dilemma: A Medical History of African Americans and the Problem of Race, Beginnings to 1900, Drs. Michael Byrd and Linda Clayton lay out the long history of racism in medicine. In this book along with numerous other studies, it is clearly shown that the problems of minority health status and minority access to health care are part of a long continuum of racism and racial discrimination dating back almost 400 years. Since colonial times, the racial dilemma that affected America also distorted medical relationships and institutions.(21) There has been active assignment of racial minorities to the underfunded, overcrowded, inferior, public health-care sector.(22) Furthermore, medical leadership helped to establish and maintain slavery, created and sustained myths of racial inferiority, built a segregated health subsystem, and maintained racial bias in the diagnosis and treatment of patients.(23) Only after 350 years of active discrimination and neglect, were efforts made to admit racial minorities into the "mainstream" health system.(24) However, these efforts were flawed as since 1975 minority health status has steadily eroded and minorities continue to experience racial discrimination in access to health care and quality of health care received.(25)

71. 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 US 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; and 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 present 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, overconcentration of alcohol and tobacco outlets as well as the legal and illegal dumping of pollutants 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 whites at the expense of minority health.

Institutional Racism in US Health Care

72. Compounding the racial discrimination experienced generally is institutional racism in health care. In spite of 30 years of government efforts to reduce these disparities, the US Commission on Civil Rights finds that, "Failure to recognize and eliminate differences in health care delivery, financing, and research presents a discriminatory barrier that creates and perpetuates differences in health status.(26) Racial barriers to quality health care manifest themselves in a number of ways including:

73. Lack of economic access to health care. Over 42 million Americans are uninsured with no economic access to health care. 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.

74. The "safety net," the network of policies and public services designed to provide low-wage and no-wage workers (stay-at-home mothers, recipients and others) access to health care and other social services has been drastically reduced. Government cutbacks and other policies limiting access to translation, requiring additional applications and/or interviews, work-for-benefit rules and more have dramatically decreased minority access to healthcare benefits. One of the direct effects of welfare reform has been a reduction in the use of Medicaid by those who qualify because of unawareness of eligibility requirements which has also increased the number of uninsured. In addition, increased poverty as a result of cutbacks has resulted in a worsening of health status and an increase in the need for health care services.(27)

Case Study: Discrimination in the Idaho CHIP Program


(Adapted from "Leading with Race" by Gary Delgado in Grass Roots Innovative Policy Program, Applied Research Center 2000)

75. The Idaho Community Action Network (ICAN), a grassroots, member based organization in the state of Idaho received numerous complaints from their members about the application process for the federal Child Health Insurance Program (CHIP). ICAN took testimony from members and reviewed the evidence. Although nearly all applicants were treated poorly, there was clearly a pattern of discrimination that needed further investigation. ICAN developed a project that tested the accessibility of the program in three Idaho cities. They sent white and Latino families to apply for the CHIP and documented how people were treated. The testing program uncovered clear evidence of discrimination: lack of translators; intrusive questions by eligibility and caseworkers; requirements of proof of citizenship for Latino applicants; and unduly long processing time for all applicants that was even longer for Latino applicants. Mounting a publicity and organizing campaign, ICAN forced the state to standardize application procedures and reduce the written application form for both Medicaid and CHIP from twelve to four pages.

76. 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 racial minorities; and (3) the continued transfer of unwanted patients (known as "patient dumping") by hospitals and institutions to underfunded, over burdened public care facilities. Such practices have a disproportionate effect on racial minorities banishing them to distinctly substandard institutions or to no care at all.

77. Barriers to physicians and other providers. Areas that are heavily populated by minorities tend to be medically underserved. (28) 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 under represented in health care professions.(29) The shortage of minority professionals affects not only access to health care but also access to the power and resources to structure the health care system leaving its control almost exclusively in white hands. The result is a system that benefits whites at the expense of racial minorities.

78. 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 than whites, but are less likely to receive them.(30) In fact, racial disparity in treatment has been well documented. Studies have shown racial disparity in both quality and availability of treatment in AIDS, cardiology, cardiac surgery, kidney disease, organ transplantation, internal medicine, obstetrics, prescription drugs, treatment for mental illness, and hospital care.There are marked differences in time spent, quality of care and quantity of doctor's office visits between whites and blacks. 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. Furthermore, researchers have concluded that doctors are less aggressive when treating minority patients.(31) At least one study indicated a combined affect of race and gender resulting in significantly different health care for African American women(32)

79. Discriminatory policies and practices. Discriminatory policies and practices can take the form of "medical redlining"(excluding key medical services from predominantly minority communities and concentrating them in white communities), excessive wait times, unequal access to emergency care, deposit requirements as a prerequisite to care, and lack of continuity of care. Discriminatory practices and policies often appear racially neutral but disproportionately affect racial and ethnic minorities. For example, 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."(33)

80. One significant example, is a federal Medicaid "racially neutral" 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 spent down 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 live long enough to spend down those assets. The effect of this policy is that there are fewer resources spent on minority populations for nursing home care even though they represent a larger portion of the Medicaid population and have more illness. The combination of minority over-representation 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.

81. 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.(34)

82. One example of institutional barriers to culturally competent care is the prevalence of linguistic barriers -- particularly for Latinos and Asian Americans. (35) 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 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 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 the CERD.

83. Double impacts 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 women, as a whole. However, race discrimination and sex discrimination intersect to magnify the barriers minority women face in gaining equal access to quality health care.(36) This intersection or "double impact" affects women of color with regard to provision of treatments, access to medical care and inclusion in research. This is partly the result of different expectations of medical care between men and women and of gender bias among health care providers. Furthermore, these barriers are exacerbated in the case of gender-specific illnesses such as breast cancer.(37)

84. 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 the case of domestic violence. There are numerous cases of women who, after calling upon police for help in such cases, are 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 available. Barriers include lack of family planning services or facilities in their communities; lack of coverage of certain services, medications or procedures by Medicaid or other publicly funded health insurance programs; and disproportionately higher prescription 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. However, there are few standards for ensuring equal access and equal treatment at this level of government. With jurisdiction over this area increasingly devolving to the state and local level, 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.

85. Inadequate inclusion in health care research. Despite volumes of literature suggesting the importance of race, ethnicity, and culture in health, health care, and treatment, a minute percentage of those funds are allocated to research on issues of particular importance to women and minorities (21.5 percent). Funding of research by women and minority scientists only amounts to .37 or less than one half of one percent. Although several statutory requirements have been enacted to ensure that research protocols include a diverse population,(38) more must be done to address decades of exclusion. The health condition of women and minorities will continue to suffer until they are included in all types of health research.(39)

86. Lack of data and standardized collection methods. Current Government data collection efforts are inadequate and 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 often are wrongly classified on vital statistics records and other surveys and censuses. It is important to collect the most complete data on racial and ethnic minorities, and "sub-populations" to fully understand the health status of all individuals as well as to recognize the barriers they face in obtaining quality health care.(40) 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.

87. Rationing through managed care. The health care financing system has been steadily moving to managed care (a system where a corporation intervenes and structures the health care process after standard business principles) as a means of rationing health care. As there is no proper oversight, managed care has tended over time to place increasingly stringent fiduciary requirements on providers. The impact of these largely financial interventions includes the failure to develop more expensive but culturally appropriate treatment modalities, not allocating the necessary expenditures to develop adequate health care infrastructure for minority communities. The potential for discrimination, particularly racial/ethnic discrimination, to occur in the context of managed care is significant. Leading commentators and advocates for civil rights in health care services, financing, and treatment have recognized this risk yet little has been done to protect minorities from this form of discrimination. The federal Office of Civil Rights (OCR) made the following statement on the issue:

88. "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."

89. Several managed care practices have disparate effects on minorities. One of the most common ways in which managed care organizations (MCOs) discriminate against minorities is in their selection of 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." 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 that contain only providers that accept Medicaid resulting in "segregated" provider lists. Other methods MCOs have used to discriminate against Medicaid patients are excluding sections of urban, predominantly minority communities from the MCO's 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.(41)

Inadequacy of Legal Efforts

90. "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

91. Racial inequality in health care persists in the United States despite laws against racial discrimination in large part because the laws in the United States are inadequate for addressing issues of institutional racial discrimination. The US legal system has had particular difficulty addressing issues of racial discrimination that result from individuals acting on biases and stereotypes, and institutions that implement policies and practices that have a racial impact. The legal system requires individuals to be aware that the provider or institution has discriminated against them and that the provider has intentionally injured them. As discussed in previous sections of this document, this is a real barrier to legal redress. Finally, the health care system, through managed care, has actually built in incentives that may encourage "unintentional" or automatic discrimination.

92. In the case of health care discrimination, the laws do not address the current barriers faced by minorities; and the executive branch, the legislatures and the courts are singularly reluctant to hold health care institutions and providers responsible for institutional racism.

Critique of Government Report

93. As indicated in the US Report on CERD, the Federal Government has made attempts to ensure equal access to health care through a number of statutes(42) that were enacted to fight racial discrimination. However, the report omitted federal agency findings that the Government's failure to ensure equal access to quality health care has not only been ineffective and inefficient, but also has perpetuated racial discrimination.

94. "... the Department of Health and Human Services (HHS) has faced several deficiencies, including shortage of resources and funding, which have hampered its ability to enforce civil rights laws and ensure nondiscrimination in the health care context. The result is the perpetuation of severe disparities in health status and access to health care services between minorities and nonminorities and women and men." (43)

95. Although Congress has enacted civil rights laws designed to address specific rights, such as equal opportunity in employment, education, and housing, it has not given health care the same status.(44) As a consequence, discrimination in health care is uncorrected.



96. Medicine has found cures and controls for many afflictions, improving the health of all Americans. However, the health care system has failed to extend the same magnitude of improvement in health among whites to minority populations. It has failed to eliminate the racial distribution of health care and it also perpetuates disparities among racial groups. The current law has proven ineffective in eliminating racial discrimination in health care. This is intolerable. The Government should act now to develop a health policy, practice and program infrastructure that brings it in compliance with the CERD, human rights standards and basic principles of equity and fairness.


� Define "justifiable" discrimination to exclude 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 either would not discriminate or have less of an impact.

� Require significant progress to be made in eliminating disparities in health and health care systems including but not limited to increasing the availability of facilities and training providers in communities of color; adequately funding DHH/OCR to enforce civil rights laws related to non-discrimination in health; designing specific civil right laws, regulations, and policy guidance to address health care discrimination; developing clear standards for culturally competent health care; adequately funding research by minority and women scientists; establishing funding guidelines that promote research on women and minorities; developing policy guidance specifically addressing Title VI compliance in the health care setting (i.e. managed care); and development of specific training related to the use of race and class in research and intervention development.

� Require a unified data collection system in government programs (e.g., Medicaid, Medicare and military) which would allow easy determination of facilities, providers and organizations that discriminate in the diagnosis and treatment of illness.

1. 1 Id., p. 275.

2. 2 Id., p. 275; See also, Federal Title VI Enforcement to Ensure Nondiscrimination in Federally Assisted Programs. A comprehensive evaluation and analysis of the US Department of Justice's performance in its leadership and coordination responsibilities for Title VI, (1996). 677 pp. No. 910-00024-2 (Includes the US Commission on Civil Rights' analysis of the Title VI enforcement efforts of 10 federal agencies and10 sub agencies. Includes recommendations).

3. 3 The Health Care Challenge I, supra. Note 1, p.190.(emphasis added)

4. 4 Id., p. 190.(emphasis added)

5. 5The Health Care Challenge II, supra. Note 1, p. 275.

6. 6 Id., p.1, Preface.

7. 7 Id. chap. 1.

8. 8 Id., p. 190.(emphasis added)

9. 9The Health Care Challenge II, supra. Note 1., p. 275-276.

10. 10The Commission on Civil Rights Agencies is not alone in its documentation of disparate enforcement. Numerous other investigative bodies have documented this problem, both internal to the Department of Health and Human Services and external to the Department, including the General Accounting Office, the House of Representatives' Committee on Government Operations, HHS' Office of Inspector General, and the Department's own Civil Rights Review Team.


11. 11 Id., p. 275-276.

12. 12 Id., p. 275-276.

13. 13 Id., p. 275-276.

14. 14 Id., p. 275-276.

15. 15 Id., p. 275-276.

16. 16 Id., p. 275-276.

17. 17 Id., p. 275-276.

18. 18 Id., p. 275-276.

19. 19 The Health Care Challenge: Acknowledging Disparity, Confronting Discrimination, and Ensuring Equality, Volume I, The Role of Governmental and Private Health Care Programs and Initiatives. 287 pp. No. 902-00062-2. (Sept., 1999)(Hereinafter, The Health Care Challenge I); The Health Care Challenge: Acknowledging Disparity, Confronting Discrimination, and Ensuring Equality, Volume II, The Role of Federal Civil Rights Enforcement 438 pp. No. 902-00063-1. (Sept., 1999) (Hereinafter, The Health Care Challenge II)

20. 20 The Health Care Challenge I, supra. note 1.

21. 21 Byrd, W. Michael and Clayton, Linda A., An American Health Dilemma: A Medical History of African Americans and the Problem of Race, Beginnings to 1900 (2000)

22. 22 Byrd and Clayton, supra. note.

23. 23 Id.

24. 24 Id.

25. 25 Id.

26. 26 The Health Care Challenge I, supra. Note 1, p. 196.

27. 27 Id., p. 197.

28. 28 Id., p. 190.

29. 29 Id., p. 190.

30. 30 Id., p. 196.

31. 31 Id., p. 196.

32. 32 Id., p. 196.

33. 33 Id., p. 197.

34. 34 Id., p. 190.

35. 35 Id., p. 190.

36. 36 Id., p. 190.

37. 37 Id., p. 197.

38. 38 Id., p. 197.

39. 39 Id., p. 197.

40. 40 Id., pp. 50-52.

41. 41 Id., pp. 88-92.

42. 42The Hill Burton Act, title VI of the Civil Rights Act of 1964, and title IX of the Higher Education Amendments Act of 1972

43. 43The Health Care Challenge I, supra. Note 1, p. 189.

44. 44 Id., Preface.

Education Policy
Expose Racism & Advance School Excellence (ERASE)
Applied Research Center


Key Findings

� 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.Key Recommendation

s� 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.IV. Education Policy Summary of CERD and Other Human Rights Violations

118. We assert that until the recommendations below are fully enacted and the institutional practices which deny children of color their education are addressed, the government of the United States is in violation of the Convention on the Rights of Children (1989), the Convention Against Discrimination in Education (1960), and Articles 2 and 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (1966). Overview

119. An examination of any dimension of public education in the United States today -- funding, curriculum, school discipline, or graduation and college enrollment rate -- reveals vast inequities between people of color and those of their white counterparts. Together these differences make up a system of institutional racism throughout public education in this country.

120. These gross and obvious inequalities are not confined to any single city or region of the country. The research discussed in Applied Research Center's report, Facing the Consequences: An Examination of Racial Discrimination in US Public Schools, (See Appendix E) reveals similar results for small towns and big cities, for the North and the South, for schools where students of color are the minority and where they predominate.

121. If US public schools regularly failed to serve students of color in a single aspect of their education that would be bad enough. What the research reveals, however, is far more pernicious. It is the cumulative effect upon students of color of an education system that channels them away from academically challenging courses, punishes them more frequently and more harshly, and ultimately pushes them out of school without a diploma--all in much higher proportions than their white counterparts. We must face the consequences of racial discrimination in US public education in order to ensure educational equity, opportunity, and excellence for all students.Outcomes versus Intentions

122. What concerns the nation's almost 17 million students of color and their communities is that, regardless of anyone's intent, they receive an inferior education. Public policy must address these systematic inequalities in the application of discipline, in dropout, graduation, and college acceptance rates, in access to advanced classes, and to contemporary textbooks and other educational materials.

123. Inadequate data collection. Of the 12 school districts covered in the Facing the Consequences report, three-quarters failed on at least one indicator simply because they failed to collect or refused to supply the necessary data. A quarter of the districts did not report the demographics of their most recent graduates. Another quarter had no racial breakdown for advanced placement classes or programs for "gifted" students. And more than half did not know the racial composition of the graduates who went on to college.Equity Counts

124. " is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education."--Brown vs. Board of Education (1954)

125. Almost 50 years have passed since the United States Supreme Court ruled that segregated schools were "inherently unequal" and therefore unconstitutional. The data collected demonstrate that half a century later, whether segregated or not, whether by conscious design or through unconscious acceptance, public schools still offer young people of color an unequal, inferior education.

126. At the heart of the landmark Brown decision cited above was indisputable evidence that segregation in education has resulted in a system where whites have reserved the best in education -- be it facilities, teachers, equipment, instructional materials and the like -- for their primary use. This system of privilege or racial spoils is predicated upon the same assumptions that animate and maintain white supremacy in other areas of American life: a philosophy based on a belief in the natural entitlement of whites and the inferiority of other peoples. Unfortunately, more than a half century after Brown, these assumptions undergird discriminatory policies that, among other things, allocate a disproportionate share of funding to predominantly white schools, concentrate spending on policing and security devices for the control of students of color at the expense of the classroom needs.

127. As Gary Orfield and John T. Yun, find in Resegregation in American Schools (The Civil Rights Project, Harvard, University, June 1999), schools are deeply segregated and the courts, as reconfigured by appointees under the Reagan and Bush Administration, are providing no relief. In fact, court decisions of the last decade have hastened both segregation and inequity. As Orfield and Yun write, "based on the national average, the average white student is in a school with 8.6% black students, 6.6% Latinos, 2.8% Asians, and 1% American Indians. Whites are the only racial group that attends schools where the overwhelming majority of students are from their own race. Blacks and Latinos attend schools where a little more than half the children are from their own group, on average, while American Indians attend schools that are one-third Indian [excluding Bureau of Indian Affairs (BIA) schools]. Asians tend to be in schools that are only about a fifth Asian." This intense segregation of whites enables the unequal allocation of educational resources along racial lines.

128. Unequal education is clearly a form of racial discrimination. It jeopardizes the futures of millions of young people of color in the US. It is easy to ignore race as a dynamic, even when disparities fall significantly along racial lines. It is also easy to point the finger at inequities in society overall, thereby relieving the school system of any responsibility. However, if this embedded pattern of institutional racism is to be remedied, each institution, including our school systems, must take responsibility for doing its part to change things. Case Study: Zero Tolerance Policies

129. "White students leave high school with diplomas. Our [African American] kids leave in police cars." -- African American activist working to address racism in South Carolina schools

130. The proliferation of zero-tolerance policies in US public schools is one example of how public policy can have a devastating race-based affect. The collection of data on a variety of key indicators of performance and equity for a dozen school districts geographically distributed throughout the country, unearth the following findings regarding school discipline and zero tolerance:

131. In every school district studied, there are significant racial disparities in student suspensions and expulsions. In every city studied, African American students are suspended or expelled in numbers proportionately greater than those of any other group. For example, in Los Angeles, California and Austin, Texas, African Americans are suspended or expelled at least twice their proportion of the school population.

132. By increasing school expulsions, zero tolerance policies have a disproportionately adverse impact on students of color. The zero tolerance policy of the Chicago, Illinois School District went into effect in the middle of the 1995-96 school year. In the 1994-95 school year, 23 students were expelled from the Chicago schools. Two years later, the number of expulsions jumped to 571. The number continues to skyrocket--it is estimated that the district expelled 1,000 students in the 1998-99 school year. The district projects that it will expel 1,500 students in the 1999-2000 school year. If so, expulsions will have jumped 65 times since the advent of zero tolerance. (See Table 2 for actual and projected expulsions in the Chicago Public Schools from 1993 to 2000.)

133. Since Chicago suspends and expels African American students at disproportionate rates, African Americans are hurt most by the zero tolerance policies. In the 1997-98 school year, African Americans composed 54% of the student population, but represented 63% of the students suspended and 71% of the students expelled. If that same racial proportion holds for the current school year, with 1,500 projected expulsions, the district will expel 1,065 African American students. Amplified to the national level, the number of expelled African American students is staggering.

134. Numerous studies demonstrate that students who are suspended or expelled are more likely than their peers to drop out of school altogether. Thus, zero tolerance compounds the racial inequities in school discipline by escalating the sheer numbers of students of color who are excluded from public education in the US

135. Zero tolerance policies are being implemented in unfair and unreasonable ways. Martin, an African American high school student in Providence, Rhode Island, offered to help his teacher dislodge a stuck diskette from his classroom's computer. But when he pulled out his key chain knife to help release the disk, he ran afoul of Providence's "zero tolerance" rules, which mandate automatic exclusion for any student who brings a "weapon" to school. Would Martin have been suspended if he were white? Maybe. On the other hand, a white student in Danville, Vermont was neither suspended nor expelled when he explained that he'd brought a loaded shotgun to school because it was hunting season.

136. Similarly, a 1999 study by the Student Advocacy Center of Michigan found that when two white students in Olivet, Michigan were caught with a gun in their car trunk, they got off with a 10-day suspension and 40 hours of community service. By comparison, in another Michigan county, a Black student was expelled for cleaning his nails with a pocket knife-which he immediately handed to his teacher when asked to do so. The police were called and the student was expelled.

137. While zero tolerance penalties appear to be racially neutral, they can be applied in very subjective ways, influenced by racial prejudice. For example, parents involved in Indian People's Action in Missoula, Montana reported that their children were being disciplined for "defiance of authority" if they didn't look their teachers in the eye when being reprimanded, even though it is disrespectful in some Native American cultures for a young person to look directly at an elder in such an interaction.

138. Since no two incidents are exactly alike, it can be difficult to legally prove that similarly situated students of different races were treated unequally. But the weight of mounting anecdotal evidence, which is well aligned with statistical evidence of racial disparities in discipline, cannot be ignored.

139. Zero tolerance policies curtail the expression of reasonable professional judgment by school educators and administrators, and limit students' and parents' right to equality before tribunals (Article 5). In the case of Martin in Providence, the African American high school student caught with a small utility knife, the police, rather than the school district, notified the parent. Though a hearing was allowed, neither Martin, nor his mother, was permitted to be present while witnesses testified against him. There are countless cases of students, especially students of color, being suspended or expelled for non-violent and non-threatening offenses. Many states and school districts have implemented zero tolerance policies that exceed the scope and intent of the 1994 Gun-Free Schools Act. (Table 3 shows how the Providence schools exceed federal and state zero tolerance policies.)

140. Now, in addition to weapons possession, schools are expelling students for fighting, violating school dress codes, possessing drugs and alcohol, or carrying anything that resembles a weapon or could be used as a weapon. Students have even been punished for possessing cough medicine, mouthwash, art tools or toy guns. Even after they are confronted and it becomes clear that there is no safety threat or intent to harm anyone, school administrators proceed to substitute their professional judgment for rigidly-prescribed zero tolerance penalties. Often, due process is bypassed. Evidence suggests that schools are more willing to recognize mitigating circumstances when they perceive the student involved in an incident as having "a real future" that would be destroyed by expulsion. Overwhelmingly, it is African American and Latino students whose futures are wrecked by zero tolerance policies. Too often, we receive reports of cases where white students are given the benefit of the doubt, while students of color (due to prevailing stereotypes and negative imagery) are presumed guilty until they can prove themselves innocent -- if they are even afforded the privilege of a defense.

141. There is a huge reporting deficiency in disciplinary actions in US public schools. Some school districts collect comprehensive data, while others collect minimal data. For example, some districts collect discipline data that is fully broken down by race, gender and age, while others simply collect total disciplinary actions. Some districts do not have data that distinguishes the suspensions from expulsions. Some do not distinguish which suspensions are in-school from those that are off-campus. Most have no way of tracking which offenses and penalties fall within the zero tolerance policies. This makes accurate assessment difficult.

142. Even when the data is collected, there can be inconsistencies. For example, if you ask for discipline data in San Diego, California, the racial categories are different than the categories used in San Francisco, California. What's more, the racial categories for discipline used in both of these school districts differs from the racial categories for student enrollment used by the state of California. This makes cross-district comparisons difficult. Some school districts use different terminology to describe their disciplinary actions. For example, one community organization recently tried to get data on "in-school suspensions" from its local school district. Unlike previous years, the school district reported having zero "in-school suspensions" during the last school year. The community organization inquired further and discovered that the school district could claim to have no "in-school suspensions" only because they had changed the name to "in-school supervisions."

143. With heightened public awareness and scrutiny of school safety issues, zero tolerance policies, and inequities in school disciplinary actions, it is critical that all school districts in the US have sufficient information to assess the effectiveness and fairness of its disciplinary policies and practices. Table 1 Applied Research Center USCCR Testimony, 2/18/00 (OMITTed

144. Zero tolerance policies have resulted in increased involvement in school discipline by law enforcement which in turn has contributed significantly to minority youth overrepresentation in both the juvenile and adult criminal justice systems. As a number of US NGOs are submitting shadow reports on racial discrimination in the criminal justice system, this report will not go into great detail in this area. However, this brief case study from the state of Louisiana is included to help further illustrate the tragic consequences of discrimination and white privilege on the life chances of minority youth.

145. The racial discrimination that pervades the American juvenile justice system has a profound effect on the lives and families of all young people who come into contact with it. A look at a Louisiana-based group for parents of incarcerated children illustrates the extent of this impact and illuminates how the statistics and numbers are actually experienced by youth and their families.

146. Louisiana is located in the southeastern part of the United States bordered by the Gulf of Mexico to the south, the state of Arkansas to the north, Texas to the west and Mississippi to the East. Louisiana's population of 4,219,973 is divided almost exclusively between African-Americans and Whites. While 38% of Louisiana's youth (under the age of 18) are African-American, African-Americans comprise 81.2% of the youth detained in Louisiana's four "secure care" correctional facilities for juveniles. The average African-American juvenile living in Louisiana is more than 7 times more likely to find himself committed to a secure care facility than a white juvenile.**

147. The Juvenile Justice Project of Louisiana's newly formed Parents Group brings parents of incarcerated children together for support and advice. They have also begun to strategize around how families and communities can organize to affect the policies and practices of the juvenile justice system that so profoundly affect their children. The parents who attend are overwhelmingly African-American, an honest reflection of the overrepresentation of minority youth in the state's juvenile correctional facilities.

148. Invariably, among the first things listed when the parents conduct a brainstorm of problems they have encountered in the system, someone loudly and clearly says, "Racism." The first time the group met, it was raised by an elementary school teacher, a mother whose son had recently been released after a year of incarceration at the Tallulah Correctional Center for Youth. At the next meeting, it was a father whose son is still serving his sentence of three years for bicycle theft. For families in Louisiana, the racial disparities in the system are glaring. Statistics are not available, nor are they necessary, for families to see the plainly discriminatory ways their children are treated.

149. After the subject has been broached, other parents join in. Laverne, a nurse whose son is almost finished with his yearlong sentence in the Swanson Correctional Center for Youth, recalls her courtroom experience with pain. She remembers that in the waiting room there was only one white mother. All the other family members of arrested juveniles were African-American. In the courtroom, however, she and her son were the only African-Americans present. Judge, bailiff, prosecutor, probation officer, defense attorney - all of them were white. Laverne and other African-American parents indicate that this phenomenon - which is not uncommon in Louisiana - has at least two effects.

150. First, it alarms parents to the very real possibility that their child might be treated unfairly solely because of the color of his skin, and secondly, it furthers the intense alienation that minority parents feel when navigating the juvenile justice system. Many parents talk of feeling excluded from the process, or worse, treated as though they are part of the problem. These parents specifically attribute this to the stereotypes and prejudices that white judges and lawyers have about minority families.

151. Parents who have worked hard to find alternatives to incarceration that would allow their child to stay at home, and are better suited for their child find themselves ignored at hearings. They are never given a chance to speak. Often parents say that they feel that the judges and lawyers treat their children as if they were adults, and approach them with fear, regardless of what crime was committed or the demeanor of the child. This can be directly attributed to racist assumptions and stereotypes of young black men. Their children are not given the second chances that white children are given, and are sent away more frequently to secure care facilities.

152. Once the state takes custody, parents say, the disparities are even more blatant. At one Parent's Group meeting, an African American mother told the one white mother present that she felt for her son's predicament. "It must be hard to be the only white boy in that entire dorm." Parents who travel four and five hours to visit their children observe that there are even fewer white children in the facilities than there were in court. Whites serve shorter sentences and are released much faster than the African-American children. The fact that African-American children often serve longer sentences than white children for the same crime is intensely painful for parents who anxiously await their children's return. A longer stay in one of Louisiana's juvenile correctional facilities - known for violence and neglect of children in their custody - can mean many things. At best, it is more time for the child to fall behind in school, jeopardizing his chance to successfully transition back into the "real world." At worst, it means a broken leg, a broken jaw or worse.

153. The racism that is felt and experienced first hand by these parents who have had to navigate the system is repeated by the statistics which show vast racial disparities of incarcerated juveniles based on race. Yet, the statistics cannot tell the stories of the families who pay the price for both the individual and institutionalized racism that unjustly contribute to the incarceration of their children.

154. *Case study was written by Sarah Xochitl Bervera (email: This email address is being protected from spambots. You need JavaScript enabled to view it.). Stories are composites of real people and their stories/retelling of their experiences.

**Statistics are based on 1990 Census Report and Louisiana's Department of Corrections data, updated in October, 2000.


Case Study: What Happens When a School Takes a Race-Conscious Approach to Discipline?

155. That is exactly what staff at James Lick Middle School in San Francisco, California decided to find out. Heidi Hess is Focused Effort Coordinator at James Lick. She says that teachers at her school were concerned that African American students, who make up less than a third of the student body, receive almost half the referrals for discipline.

156. "The first thing we had to do," to address this disparity, says Hess, "was to really become rigorous about collecting the data. We developed forms for teachers to use that documented when a student was sent out of class (for a disciplinary referral), who sent them out, and why." Collecting this data yielded some surprising results. "We found that over 75% of the referrals given out last school year were for defiance of authority or disruption of class." Furthermore, most cases involved conflicts between students and teachers, rather than between students. More serious offenses, such as possession of a weapon, were rare.

157. Collecting the data was just the first step. "We developed a system to feed the data collected directly back to the teaching staff," Hess says, "so they can better understand what is going on" and gauge their progress. "We looked at how teachers set the rules in their classrooms, and whether and how teachers involved students in defining classroom rules." They found that when students participate in forming the rules, they are less likely to perceive them as unfairly applied.

158. James Lick staff began holding monthly professional development meetings to work out alternative strategies for de-escalating conflict. They sought to emphasize teachers' roles in these interactions, rather than focusing solely on methods of changing students' behavior.

159. Although most of the power resides with the teachers, "it was a paradigm shift for the teaching staff to buy into the idea that it is their responsibility to minimize defiance situations," Hess continues. "We had to ask, 'What might be going on in the students minds? What's going on for the teacher? And what would be alternative practices?'"

160. "One of the best exercises we did was to role-play the beginning of a defiance scene. For example, a student walks into class and puts a soda on the table, even though no drinks are allowed in the classroom. The teacher asks the student to remove the drink. Just acting out different possible responses to this scene, with the staff taking not only the teacher's role, but also trying on the student's role. It was profound."

161. James Lick's revamped approach to discipline is still too new to determine whether these interventions will reduce the racial disparities in suspension referrals. But already teachers are experiencing some success. Hess offers an example: "One teacher reported that she was just about to yell, from across the room, at two African American girls who appeared to be talking and carrying on excessively. But she gave herself a few seconds to think of an alternative strategy for dealing with them. Instead, she walked over to them, and much to her surprise, found that they were talking about their work assignment. Far from yelling at them, she realized she didn't need to say anything at all."

White Privilege and Access to Higher Education*

162. Access to higher education is critical to moving out of poverty. According to the US Census Bureau, earnings for college graduates average more than 50% higher than earnings for high school graduates. The disparity is more marked between those who stop at high school and those who complete some graduate school. Indeed, earning a graduate degree is an important factor in earning power. Post-secondary education is especially important for racial minorities who are about twice more likely than whites to be stuck in poverty if they can not earn a college degree.

163. Therefore, bias and discrimination in higher education form a critical barrier to living wage and high wage jobs, which in turn affects virtually every facet of quality of life. This bias takes many forms. It begins in secondary education where minorities are denied access to courses that are required for college admission or that will better prepare them for success in post secondary education. For example, a study by the UCLA Graduate School of Education has found that minority students are systematically excluded from Advanced Placement classes. A study on race and education by the Applied Research Center, No Exit? Testing, Tracking, and Students of Color in US Public Schools, (Appendix E) found that tracking is most common in schools with "significant numbers of African American and/or Latino students." Further, white students regardless of test scores, grades or behavior were much more likely to be placed in "higher tracks" or academic programs. Students of color - especially African Americans and Latinos - were more likely to be placed in "lower" tracks.

164. The result of these programs, besides creating inequality within a local district or even within a single school, is that racial minorities are less likely to receive adequate preparation for college regardless of academic ability. The segregation of housing, resources and wealth by race has led to a system where young people's life options can be severely limited or greatly enhanced by a single factor: where they reside.

165. Those people of color who are able to access college preparatory classes find yet another barrier to college: standardized testing designed to privilege whites. The studies showing racial bias in standardized admission tests are numerous. However, one study by the Princeton Review (Rosner, 1999) found particularly damning evidence. The Scholastic Aptitude Test (SAT), the test most often used by colleges to determine undergraduate college admission for students entering from high school, disallowed any questions on which African Americans consistently scored better than whites on the test as part of its criteria for test validity. Questions on which whites scored better than African Americans were kept on the test (see Appendix F).

166. Competition for college admission is quite high. As a result, there have been a number of lawsuits and policies at both the state and federal level designed to limit minority access to college (especially graduate school) and expand access for whites. Special outreach measures like affirmative action have been under attack in several lawsuits. In the state of California, a statewide ballot measure was passed that greatly curtailed the ability of institutions to consider racial diversity as part of their hiring and admissions criteria. In the first year of implementation of a ban on affirmative action in the University of California (UC) system, no new African Americans were admitted to Boalt Law School or UC Davis and UC San Diego medical schools. In fact, everywhere affirmative action has been eliminated, minority enrollment in schools has decreased dramatically.

167. By contrast, whites are gaining unprecedented access to Historically Black Colleges and Universities (HBCUs) so that they have expanded options for college education -- especially at the graduate level. The policies that have created this access provide insight into the legal apparatus that maintains and advances white privilege.

Case Study: Historically White Colleges and Historically Black Colleges Receive Different Treatment Under Law

168. Historically Black Colleges and Universities (HBCUs) were institutions created as one of the few government sponsored remedies in the aftermath of slavery. The colleges were segregated because the government did not want to encourage black attendance at white institutions. In a number of southern states, legislatures explicitly chartered institutions to serve either whites or blacks but not both. Blacks were barred from attending or even teaching at Historically White Colleges and Universities (HWCUs) though whites could, in many cases, attend black institutions. Whites did not attend these institutions, however, because they were consistently less funded than their white counterparts, and with few exceptions were not allocated resources for graduate studies, adequate facilities or even completely accredited. However, many black colleges and universities had white faculty, staff and were sometimes headed by white presidents.

169. Still, HBCUs play a critical role in the ability of African Americans to access education and income. Facing discrimination by HWCUs, HBCUs were the main venue for African Americans to receive a college education -- especially professional and graduate degrees. Before the advent of civil rights legislation prohibiting discrimination in 1964, virtually every graduate and professional degree earned by blacks was conferred by one of the elite HBCUs with graduate and professional degree programs. Even as late as 1976, HBCUs conferred more than three-quarters of all professional degrees earned by blacks.

170. As college education became increasingly linked to livelihood, and more people of color were able to attend HWCUs (either as immigrants from outside of the US or minority residents), competition for college slots increased. By the 1980s, HBCUs were placed under strict integration mandates that required that they either merge their resources and facilities with nearby white institutions or attract white student enrollment in large numbers by strict deadlines. HWCUs are not under such mandates although, unlike black institutions, they implemented policies that banned blacks from attending their institutions for more than a century.

171. Alabama State University, an HBCU chartered in the 19th century by the Alabama state legislature, is currently operating under an integration order that requires that they set aside nearly 40% of their academic grants budget for scholarships to whites. The state augments the university's $229,000 contribution with public funds bringing the "whites only" scholarship fund to a million dollars a year. There are few eligibility requirements. A student must be white and have earned at least a C average. African Americans vying for admission to the university must earn almost a full point higher to even merit consideration. In fact, as a C average is just slightly above the minimum required to pass a class, white scholarships are the only academic scholarships for entry at the university level with such low requirements. (see Appendix G)

172. Aside from the irony of such a policy that cuts off African Americans from institutions established to help address the deep inequalities of slavery and its aftermath, there are no accompanying requirements for Historically White Colleges and Universities. On the contrary, such efforts to integrate white institutions from Harvard to the University of Texas have been under attack. Despite the fact that many colleges across this country are overwhelmingly white with little diversity, there are no mandates, no timelines, not even laws or policies requiring integration at any level. By contrast, HBCUs (which are often relatively small and underfunded) are forced to integrate although they have historically offered African Americans -- and anyone who would apply -- a supportive, relatively bias free environment. Given the fact that the Government has not acted aggressively to force the integration of predominantly black schools at the K-12 level, these mandates appear to have a singular purpose -- to expand post secondary education opportunities and resources for whites.


� In testimony to the US Commission on Civil Rights, the Applied Research Center made several recommendations (See case study on race conscious discipline, above) regarding monitoring, implementation and alternatives to zero tolerance policies. In addition, we believe that the CERD has a pivotal role to play in ensuring the rights of children and communities of color in the United States and elsewhere. In this report, we include the following broader recommendations stemming from findings in the Facing the Consequences report. They are as follows:

� Design Racial Equity Plans at the school, district, state, and national levels that include annually quantifiable goals. Where data reveal racial divides, the responsible agencies should create, implement, and evaluate annually a comprehensive plan to solve the problem, including numerical goals and timetables. Such Racial Equity Plans must address the entire school environment, including such issues as teacher recruitment and training, learning facilities and classroom resources, class size, availability of inclusive and challenging curriculum, and clear and even-handed discipline policies.

� Schools must act immediately to correct the uneven application of the most severe disciplinary actions, including suspension and expulsion. Discipline policies that result in racially disparate impacts should be modified or eliminated to ensure fair treatment of all students.

� End academic tracking and open the way for all students to participate in a challenging curriculum, including advanced classes. Studies show that African Americans, Latinos, and Native Americans are underrepresented in advanced placement classes and other programs for "gifted" students. In fact, the practice of tracking students by perceived "ability" creates racial ghettos within nominally desegregated schools, as students of color are tracked away from college preparatory classes. Because the effects of tracking are cumulative, any successful intervention must begin at the earliest grade levels to ensure that every student has equal access to these "gatekeeper" 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. Public education is potentially an important tool for addressing racial inequity. Unfortunately, due to inequitable funding practices, segregation of resources and facilities, and other forms of institutional white privilege schools have been more often used to institutionalize discrimination and inequity. The Government should develop a more effective regulatory and monitoring infrastructure that facilitates greater equity in public education with a central focus on the dismantling of white privilege.

� Institute more accurate and sensitive standards for measuring student progress and college aptitude and discontinue the use of biased and ineffective standardized tests. Current forms of standardized tests, be they "high stakes" tests which determine matriculation at the primary and secondary school level or college or graduate school admission tests, are found to be racially biased as well as poor indicators of a student's prospects for academic success. Groups like FairTest have identified more effective means of student assessment. These measures should be adopted and implemented as policy.

� 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. Given the importance of a college education to quality of life, Government must develop clear policies in this arena with specific timelines and outcomes -- particularly for minority admission, retention and graduation at Historically White Colleges and Universities.



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