[p996] VI. FINDING AN INTERNATIONAL SOLUTION TO ERADICATE RACIAL DISCRIMINATION IN OBTAINING QUALITY NURSING HOME CARE
The United States, a member state, is not complying with the requirements of the CERD because nursing homes receiving federal funding continue to discriminate against African-Americans without any action by the government. The United States promised to eradicate racial discrimination against African-Americans in all facets of public life with the passage of the Civil Rights Act of 1964. The United States' failure to prohibit racial discrimination and segregation under Title VI has abrogated elderly African-Americans access to quality nursing home care. This is a clear violation of the CERD.
Even with two decades of empirical data showing the prevalence of institutional racism and the failure of the government to rectify this racism, the Supreme Court decided that these cases were better resolved by OCR. Saddling OCR, the federal division responsible for Title VI enforcement of health care, with this responsibility is a brazen disregard of the right to equality of treatment of elderly African-Americans. Because there are few domestic means to address the continuation of implicit government sanctioned racial discrimination and segregation in nursing homes, elderly African-Americans should file a complaint with the Committee for the United States' violation of the CERD. However, the only drawback is that the findings of the Committee are not binding, but this is better that the voluntary compliance sought by OCR that never materializes. Furthermore, a biding decision can be obtained by filing a claim with the International Court of Justice, with the consent of the Untied States.
A. The United States' Violation of Article 2(1)(a) and (b) the CERD: Engaging in Racial Discrimination Through Funding and Inactivity
The CERD specifically forbids member states from sponsoring racial discrimination by organizations. Similar to the dictates of Title VI, to comply with the CERD, the United States must eradicate racial discrimination from institutional racism. To prevent this [p997] discrimination, Article 2(1) of the CERD mandates that the United States condemn racial discrimination and “undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms.” Furthermore, Article 2(1)(a) and (b) requires the United States to monitor compliance with the CERD and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation . . . [and] undertakes not to sponsor, defend or support racial discrimination by any persons or organizations.”
Hence, under the CERD, the United States is required to put an end to all discrimination committed by public institutions. The broad goals of the CERD are to be implemented to protect the enjoyment of several rights such as equal access to health care. Comparable to the mandates of the CERD, Title VI prohibits racial discrimination by public institutions that are funded and the subject of government regulation. Moreover, Title VI and the CERD both govern an individual's right to enjoy numerous fundamental freedoms on equal footing such as the right to education and health care. The United States has violated Article 2(1)(a) and (b) the CERD by continuing to fund nursing homes that commit institutional racism. This is evidenced by the failure of the federal government to enforce Title VI.
Specifically, section 602 requires OCR to take all necessary measures to ensure that those health care entities receiving federal funding, such as nursing homes, do not discriminate on the basis of “race, color, or national origin.” Since the passage of the Civil Rights Act of 1964, critics have noted the failure of HHS to prevent and eradicate racial discrimination in health care as mandated by section 602 Title VI of the Civil Rights Act of 1964. Critics of have noted that HHS “permitted formal assurances of compliance to substitute for verified changes in behavior, failed to collect comprehensive data or [p998] conduct affirmative compliance reviews, relied too heavily on complaints by victims of discrimination, inadequately investigated matters brought to the Department, and failed to sanction recipients for demonstrated violations.” In fact since the formation, OCR has failed to enforce Title VI.
Decades' worth of research studies show that African-Americans are systematically denied access to quality nursing homes. This evidence has been submitted to OCR in the form research findings and in the form of complaints against the perpetrating nursing homes. Nevertheless, the federal government continues to fund these facilities. The Supreme Court's actions have negated private parties' opportunity to address this issue when the Court decided Alexander v. Sandoval, barring the private parties from bring cases to challenge the use of institutional racism to limit racial groups' access to government funded services.
B. No Meaningful Opportunity to Address Problem the United States' Violation of the CERD
No longer do nursing homes advertise or admit that their facilities are ‘white only,’ instead a plethora of research studies show that nursing homes simply deny admission and quality care to African-Americans based on race using ‘neutral policies' such as payment status. Consequently, private parties now use Title VI to combat these offspring, institutional racism and disparate impact, of the blatant racism and de jure segregation perpetrated until the 1960s. The [p999] Supreme Court decisively ended private parties' right to challenge these cases when it decided Alexander v. Sandoval.
In Sandoval, a non-English speaking American, Sandoval, filed a federal case challenging the failure of the Alabama Department of Public Safety (“Department”) to provide driver's license exams in languages besides English. Sandoval asserted that the use of English only exams excluded people on the basis of race, color, and national origin from obtaining a drivers license. Section 601 of Title VI prohibits discrimination based on race, color, and national origin that prevent individuals from participating in any program receiving federal funding. Because the Department received federal funding from the U.S. Department of Justice, Sandoval alleged that exclusion of people based on race, color, and national origin was in violation of Title VI. The Department argued that its actions did not violate Title VI because the discrimination was not intentional. The discrimination resulted from a neutral policy that English was the official language of Alabama, and thus, the discrimination was a result of disparate impact of ‘neutral policies.’ The Supreme Court reviewed the case solely for the purpose of determining whether private parties had a right to sue under Title VI for discrimination as a result of disparate impact.
The Supreme Court ruled that private parties do not have a right to sue for disparate impact discrimination. The Court reasoned that because the language of section 601 of Title VI granting a private right of action prohibited all discrimination it could not pertain to disparate impact. This is because the Court has ruled on several occasions that discrimination based on disparate impact is legal if there is a justifiable reason for the impact. Thus, section 601 of Title VI's language prohibiting discrimination, without qualification, does not protect persons from discrimination perpetrated through ‘neutral policies.’ The [p1000] Court found that disparate impact cases could only be addressed under section 602 of Title VI. This section states:
Each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity, by way of grant, loan, or contract other than a contract of insurance or guaranty, is authorized and directed to effectuate the provisions of section 2000d of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken. The Court reasoned that this language and the regulations promulgated under this section addressed ‘neutral’ policies that prevent the equal access of resources by racial groups. According to the majority, the regulations directing the eradication of these polices not justified by business reasons refer to the measures the government must take to enforce Title VI, not the rights of private parties. The Court made this decision even though when Title VI was passed in 1964 this artificial distinction made in 1971 between good and bad racial discrimination, i.e. disparate impact versus disparate treatment, had not been created by the courts. In addition to this problem, the Court failed to acknowledge that to date most Title VI actions are brought through or as a result of private parties' complaint, especially in terms of health care.
As in the civil rights era, African-Americans have been forced once again to take the matter in their own hands. African-Americans have filed several Title VI lawsuits to rectify these racial disparities in care due to racial discrimination. These cases have languished in [p1001] federal court for a number of years and before the resolution of many of the cases the Supreme Court banned private Title VI claims based on the theory of disparate impact. Based on archaic statutory construction, the Supreme Court delegated the task combating racism in the long-term care system to the OCR, an ineffectual agency, which the research studies show has done nothing to prevent or eradicate discrimination in health care. Unlike the Congressional ‘separate but equal’ language of the Hill Burton Act, the Supreme Court's decision does not explicitly mandate the continuation of racial discrimination against African-Americans. Instead, the decision implicitly authorizes federally funded and regulated nursing homes to continue their practices of racial discrimination and segregation that remains unchecked by the agency the Supreme Court directed to stop the problem. By barring African-Americans from obtaining judicial review and negating all agency review through under funding, the United States has left African-Americans without any means to domestically rectify the continuation of federally funded institutional racism in violation of Title VI. Thus, the only relief available to African-Americans seeking redemption of the United States long term care system is to file a claim for the United States violation of the CERD.
Armed with two decades of empirical data showing the prevalence of discrimination as a result of an adverse disparate impact [p1002] and the failure of the government to rectify this discrimination, African-Americans need to file a suit with the Committee for the United States violation of the CERD. Based on the evidence of the United States violation of the CERD, the Committee should make the United States acknowledge the problem of racism by codifying penalties for segregation, citing nursing homes for failing to integrate, and aggressively terminating facilities that fail to integrate.
C. The Solution: Filing a Complaint
To ensure compliance by member states such as the United States, two mechanisms were put into place: the creation of a Committee to review complaints and procedures to file individual complaints. Article 8 of the CERD established a Committee to enforce the requirements of the CERD. The Committee, consisting of eighteen members, is charged with reviewing complaints of the continuation of racial discrimination due to member state's violation of the CERD. Before the Committee becomes involved, individuals must be able to assert a claim of racial discrimination by a member state in violation of the CERD that cannot be eliminated through domestic means. The procedure for filing a complaint is found in Article 14 of the CERD. It provides that individuals and groups, “claiming to be the victim of racial discrimination to lodge a complaint with the Committee.”
Individuals may file a complaint against member states for violation of the CERD by sending in a complaint that contains: identification of the alleged victim(s); identification of the alleged perpetrators of the violation; identification of the person(s) or organization(s) submitting the communication; date and place of incident; information regarding the measures taken by the authorities; and a detailed description of the circumstances of the incident in which the alleged violation occurred. Once the complaint is filed, the Committee will send a report to the member state accused of the [p1003] violation, while keeping the name of the complainant confidential. The state then has three months in which to provide a response clarifying its actions and including any remedial measures implemented to address the allegations of racial discrimination. The case may be amicably resolved at this point. Should the individual complainant not be satisfied with the result, the individual can refer the matter to the Committee again within six months of receiving the response.
If the matter is referred to the Committee the second time a Conciliation Commission (“Commission”) is appointed. This Commission will review the matter and issue a report detailing its findings and recommendations to settle the dispute. If the Commission finds the State is in violation of the CERD, the State has three months to inform the Commission whether it accepts the report's recommendations. In the event of continued failures to comply with the mandates of the Commission and the CERD, the individual complainant can file a claim with the International Court of Justice for a resolution. The remedies available if the case is resolved in favor of the complaining party are a change of the law and reparations for damages suffered.
