ARTICLE 5

Article 5 obliges States Parties to prohibit and eliminate racial discrimination in all its forms and to guarantee the right of everyone to equality before the law, without distinction as to race, color, or national or ethnic origin. The protections of the U.S. Constitution meet this fundamental requirement. The policy and objectives of government at all levels are also consistent with its provisions.

Importantly, Article 5 goes even further, requiring States Parties to guarantee equality and non-discrimination on this basis "notably in the enjoyment" of a list of specifically enumerated rights. Some of these enumerated rights, which may be characterized as economic, social and cultural rights, are not explicitly recognized as legally enforceable "rights" under U.S. law. However, Article 5 does not affirmatively require States Parties to provide or to ensure observance of each of the listed rights themselves, but rather to prohibit discrimination in the enjoyment of those rights to the extent they are provided by domestic law. In this respect, U.S. law fully complies with the requirements of the Convention. In many of the areas covered by this article, however, serious problems exist.

Equality Before Tribunals. The right to equal treatment before tribunals and all other organs administering justice, as guaranteed by Article 5(a), is provided by U.S. law through the operation of the Equal Protection Clause of the U.S. Constitution, which is binding on all governmental entities at all levels throughout the United States. This right has been reinforced by a number of constitutional decisions. For example, race may not be a criterion in the selection of jurors in criminal or civil cases. See Hernandez v. Texas, 347 U.S. 475 (1954); Batson v. Kentucky,

476 U.S. 79 (1986). Nonetheless, the perception of unequal treatment in the criminal justice system is widespread among Blacks and Hispanics, and in many respects that perception is supported by data.

Some have raised concerns about the use of so-called "secret evidence" in legal proceedings against immigrants. Particularly, critics of the 1996 Anti-Terrorism and Effective Death Penalty Act, which has been interpreted to permit use of this evidence, cite the disproportionate effect on Arab- Americans and American Muslims. The United States has taken the position that the limited use of such evidence, in the context of a system that includes procedural protections, does not violate due process or equal protection guarantees.

Discrimination by Law Enforcement. The U.S. Constitution and federal statutes prohibit racially discriminatory actions by law enforcement agencies. The Department of Justice has authority under 42 U.S.C. section 14141 to investigate allegations that a law enforcement agency is engaged in a pattern or practice of conduct by law enforcement officers, including racial discrimination, that deprives persons of their federal constitutional or statutory rights. If the law enforcement agency at issue receives funding from the federal government, which most agencies do, the Department of Justice can also investigate such allegations under the Omnibus Crime Control and Safe Streets Act, 42 U.S.C. 3789d, and Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d. If the investigation supports the allegations of illegal racial discrimination, the Department negotiates with the law enforcement agency in an effort to achieve an agreement that the agency will eradicate the discriminatory policies and practices. If no agreement can be reached, the Department of Justice has authority to bring a lawsuit in federal court under each of the statutes listed above. Relief in such a suit can include a judicially enforceable order that requires the agency to change its practices or policies to come into compliance with constitutional protections.

Since 1994, the Civil Rights Division at the Department of Justice has conducted more than fifteen investigations into allegations of a pattern or practice of law enforcement misconduct. Several of these civil investigations have involved "racial profiling," i.e., allegations of discriminatory highway traffic stops and discriminatory stops of persons traveling in urban areas.

The Civil Rights Division investigation of discriminatory traffic enforcement by the New Jersey state police led to a lawsuit resolved through a December 1999 consent decree that emphasizes non-discrimination in policy and practices as well as improved data collection, training, supervision, and monitoring of officers. The Department of Justice reached a similar agreement with the Montgomery County, Maryland Police Department. The Civil Rights Division also has a handful of ongoing investigations into alleged practices of discriminatory traffics stops and searches.

To help ensure that federal law enforcement officers act in accordance with policies against racial profiling, in June 1999 President Clinton issued an Executive Memorandum to federal agencies to gather data to determine whether racial profiling is occurring. Pursuant to the President's directive, the Departments of Justice, Treasury and Interior have started to collect data on the race, ethnicity, and gender of individuals stopped or inspected by federal law enforcement officers. This data will provide the federal government with the information necessary to combat this problem. In the meantime, the Deputy Attorney General is leading a working group to examine any changes and

reforms in federal law enforcement practice or policy that could be undertaken immediately.

In addition to the above, there are several ongoing lawsuits in which private litigants have sued law enforcement agencies based on allegations of racially discriminatory police activities. See, e.g., National Congress for Puerto Rican Rights v. City of New York (Oct. 20, 1999, S.D.N.Y.); Farm Labor Organizing Committee v. Ohio State Highway Patrol, 184 F.R.D. 583 (N.D. Ohio 1998).

The Department of Justice currently provides training to state and local law enforcement regarding the use of traffic stops in drug interdiction, emphasizing that enforcement must be carried out in a nondiscriminatory manner. The Department of Justice is also in the process of expanding the training it provides with regard to this issue.

Overrepresentation in the criminal justice system. The majority of all federal, state and local prison and jail inmates in the United States today are members of minority racial or ethnic groups.

The incarceration rate for Blacks is 7.66 times that for Whites and approximately four times their proportion in society at large. While Blacks make up approximately 12.5percent of the U.S. population, in 1997 approximately 47percent of state prison inmates were non-Hispanic Blacks. While approximately 11.5 percent of the U.S. population is Hispanic, 16percent of the state prison population is Hispanic. As of December 31, 1998, 57. 8percent of the total Federal inmate population was White (including White Hispanics), 38. 9percent Black, 1 .7percent Asian/Pacific Islander, and 1/6percent Native American. Additionally, 30.3percent of federal prisoners were identified as Hispanic (who can be of any race, though the overwhelming majority of Hispanics in the U.S. are classified as White for racial purposes). The reasons for these disparities are complex and disputed.

Disparities in Sentencing. In recent years, there has been increased focus on the issue of racial disparities in sentencing at the state and federal levels. Some studies suggest that the national "war on drugs" has further exacerbated existing disparities in sentencing within the federal and state criminal justice systems. Within the federal system, concern has been raised, in particular, in relation to (1) the use of mandatory minimum sentences generally; and (2) the disparity in mandatory minimum sentences between "crack" and "powder" cocaine.

In 1984, after more than two decades of debate and study, Congress enacted a substantial reform of federal sentencing, the Sentencing Reform Act. The central features of that legislation included a comprehensive statement of federal sentencing laws; appellate review of sentences; abolition of parole; and the creation of the U.S. Sentencing Commission to develop a detailed system of guidelines that would structure and direct the previously unfettered sentencing discretion of federal judges. Congress established the Sentencing Commission as an independent, permanent agency in the judicial branch of government. The Commission's mandate was to develop guidelines for federal criminal offenses that would bring greater certainty, honesty, and uniformity to sentencing, ensure just punishment, and promote crime control. One of the important goals of this reform was to reduce unwarranted sentence disparity.

At the same time the Sentencing Commission was developing, promulgating, and amending guidelines, Congress enacted a number of mandatory minimum penalty statutes, largely for drug and

weapons offenses and for recidivist offenders. There has been much debate in the United States about the fairness and efficacy of the mandatory minimum sentencing scheme. Some commentators argue that the imposition of this "mandatory minimum" scheme unduly restricts the ability of federal judges to impose sentences that are particular to the defendant's case and promotes racial disparities in sentencing and incarceration, while others support it as necessary to ensure appropriate levels of punishment for serious offenses.

As noted above, in mandating minimum terms of imprisonment, one of Congress's goals was to eliminate unwarranted sentencing disparity for certain categories of defendants. To accomplish this, Congress identified these categories and designated appropriate penalties below which defendants were not to be sentenced. However, a recent report by the Sentencing Commission found that approximately 40 percent of defendants determined to exhibit behavior warranting mandatory minimum terms were sentenced below those indicated terms. Also, the Commission's study concluded that a greater proportion of Black defendants received sentences at or above the indicated mandatory minimum (67 percent), followed by Hispanics (57. 1percent) and Whites (54.0 percent).

The U.S. Justice Department has worked vigorously to ensure that neither racial nor ethnic nor other improper discrimination occurs within the criminal justice system that might lead to racial disparities in sentencing and corrections. With respect to the federal criminal justice system in particular, the U.S. Deputy Attorney General has convened an internal Justice Department working group to examine racial disparities in the federal system, including questionable disparities in sentencing policies.

Mandatory minimum sentences have generated extensive litigation at the state and federal level, especially in recent years as Congress and state legislatures have increased the severity of mandatory penalties for drug and firearm offenses. Among the principal challenges to mandatory minimum provisions are contentions that they offend the Eighth Amendment's prohibition against cruel and unusual punishment and the Due Process Clause of the Fifth and Fourteenth Amendments. Criminal defendants have also challenged mandatory minimum sentencing schemes on equal protection, double jeopardy, and separation of powers grounds. Generally, these challenges have not succeeded.

Among the mandatory minimum penalties enacted by Congress in the late 1 980s were those related to sentencing federal cocaine offenses. In establishing these mandatory minimum penalties, Congress differentiated between two forms of cocaine -- powder and crack (the commonly consumed form of cocaine base). Under current federal law, it takes one hundred times as much powder cocaine as crack cocaine to trigger the same mandatory minimum penalty. Thus, a person convicted of selling 500 grams of powder cocaine is subject to the same five-year mandatory minimum sentence as a person selling 5 grams of crack cocaine. This so-called "100-to-1 ratio" (five grams/500 grams) between crack and powder cocaine sentencing has been widely criticized -- in a recent report by the Leadership Conference for Civil Rights, by both Republicans and Democrats in Congress, and elsewhere -- as unfair and unjustified. Concern in this area is heightened in light of the fact nearly 90percent of the offenders convicted in federal court for crack cocaine distribution are African-American while the majority of crack cocaine users is White.

In September 1994, the United States Sentencing Commission was directed to study and report to Congress on the 100-to-1 cocaine sentencing ratio. In 1995, the Commission issued a report criticizing the law and subsequently sent to Congress a recommendation to equalize the penalties for crack and powder at the lower, powder cocaine sentencing levels. The recommendation was accompanied by a proposed change in the federal sentencing guidelines that would have, for the purposes of the sentencing guidelines, equalized the penalties for crack and powder cocaine offenses. Because of concern about the devastating and disproportionate impact that crack cocaine trafficking was having on inner city communities, the Clinton Administration urged Congress to reject the recommendation of the Sentencing Commission. Congress agreed and invalidated the proposed new sentencing guideline. The legislation that rejected the proposed guideline also directed the Sentencing Commission to develop a second recommendation that would reduce but not eliminate the existing sentencing disparity.

In 1997, the Sentencing Commission issued a second report that again criticized current law and that recommended reducing the disparity between crack and powder cocaine sentencing policy. After an extensive study of the Commission's reports and recommendations, the Administration took the position that the 100-to-1 ratio should be changed; that existing law inappropriately targets lower-level crack offenders with significant mandatory minimum sentences and that such sentences fall disproportionately on African-Americans. The Administration proposed revising federal cocaine sentencing policy so that a conviction for distributing 25 grams (rather than five grams) of crack cocaine or 250 grams (rather than 500 grams) of powder cocaine would trigger the five year mandatory minimum prison sentence.

Others have suggested different solutions. Some have suggested equalizing penalties by raising powder cocaine penalties to the current level for crack (i.e., 5 grams = 5 years) or by reducing crack cocaine penalties as first suggested by the U.S. Sentencing Commission. However, to date, only one proposal has been the subject of legislative action. A proposal by Senator Spencer Abraham of Michigan to reduce the disparity between crack and powder cocaine sentencing by increasing the penalties for powder offenses was approved by the Senate earlier this year. There has been no legislative

Capital Punishment. The U.S. Supreme Court has held that the U.S. Constitution does not prohibit capital punishment, so long as adequate substantive and procedural protections are in place. Gregg v. Georgia, 428 U.S. 153 (1976). Accordingly, each state may decide whether to authorize the death penalty, so long as their statutes meet the constitutional standard set out in Gregg and subsequent cases. At the end of 1998, thirty-eight of the fifty states and the federal government provided for capital punishment. Capital punishment is currently not provided for in twelve states (Alaska, Hawaii, Iowa, Maine, Massachusetts, North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin) and the District of Columbia.

A sentence of capital punishment can be sought and imposed only for the most egregious crimes. In the first instance, these crimes, and the applicable procedures, must be specified by the legislature in an appropriate statute. That statute is subject to judicial review for compliance with the constitutional guarantees of due process, equal protection, and protection against cruel and unusual punishment. In 1972, the Supreme Court set aside sentences of death imposed under Texas

and Georgia statutes holding that the imposition of death in the cases at issue constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the U.S. Constitution. Furman v. Georgia, 408 U.S. 238 (1972). Subsequently, the states and the federal government revised their capital punishment statutes to meet the substantive and procedural criteria required by the Court's analysis. In 1976, in upholding such a revised statute in Gregg, the U.S. Supreme Court effectively ended a four year moratorium on the imposition of death sentences. Nonetheless, judicial challenges to sentences and statutes remain commonplace.

Generally, the death penalty cannot be imposed unless a serious crime resulted in the death of the victim. Coker v. Georgia, 433 U.S. 584 (1977); Enmund v. Florida, 458 U.S. 782 (1982); Eberheart v. Georgia, 433 U.S. 917 (1977). Moreover, the fact that the crime resulted in death is not sufficient to trigger the sanction of capital punishment; the crime must also have attendant aggravating circumstances. These restrictions upon the imposition of the death penalty arise out of the constitutional requirement that the punishment not be disproportionate to the personal culpability of the wrongdoer, Tison v. Arizona, 481 U.S. 137 (1987), and the severity of the offense, Coker v. Georgia, 433 U.S. 584 (1977).

The public debate over capital punishment in the United States includes claims about the incidence of racial and ethnic bias and discrimination. Blacks are disproportionately more likely to be sentenced to death and executed than other racial or ethnic groups. From 1977 (the year after the Supreme Court upheld the constitutionality of revised State capital punishment laws) to 1998, a total of 5,709 persons entered prison under a sentence of death. During this period, the U.S. general population was approximately 10-12percent Black; however, among those entering prison under a death sentence during this period, 2,347 (41 percent) were Black. Of the 500 persons executed during these 22 years, 178 (36 percent) were Black.

As of the end of 1998, 3,452 prisoners were under sentence of death in the States or Federal system. California held the largest number on death row (512), followed by Texas (451), Florida (372), and Pennsylvania (224). Nineteen prisoners were under a federal sentence of death. During 1998, 30 states and the Federal prison system received 285 prisoners under sentence of death. Of the 285 new admissions, 132 (46 percent) were Black and 38 (13 percent) were Hispanic. During 1998, 66 men and 2 women were executed. Of those executed, 40 (60 percent) were White; 18 (27 percent) were Black; 8 (12 percent) were Hispanic; 1 was American Indian and 1 was Asian.

In McClesky v. Kemp, 481 U.S. 279 (1987), the U.S. Supreme Court considered the implications of a study indicating that the death penalty in Georgia was imposed more often on black defendants and killers of White victims than on White defendants and killers of Black victims. The Supreme Court held that this study failed to establish that any of decision makers in the defendant's case acted with discriminatory purpose in violation of the Equal Protection Clause. The Court further held that, at most, the study indicated a discrepancy that appeared to correlate with race, not a constitutionally significant risk of racial bias affecting Georgia's capital-sentencing process; therefore, it did not establish a violation of the Eighth Amendment's prohibition against cruel and unusual punishment.

While capital punishment continues to be supported by a majority of the citizens in a majority

of states in the United States, a significant number do not support it. Some opponents believe capital punishment is not only unfairly applied but also ineffective as a deterrent to criminal activity. Throughout the country, many remain concerned about racial and geographic disparities in the application of the death sentence.. Other stated causes for concern include inadequate representation of counsel, lack of a fair hearing at which exculpatory evidence can be submitted, and the unavailability of exonerating evidence until long after the trial. Despite these concerns, the U.S. government remains confident that the death penalty is imposed only in the most egregious cases and only in the context of the heightened procedural safeguards required by our state and federal constitutions and statues.

Security of Person. Under Article 5(b) the State Party must provide equal protection against violence and bodily harm, whether inflicted by governmental officials or by individuals, groups or institutions.

As discussed above, U.S. law prohibits discrimination on the basis of race, color, ethnicity or national origin. Notably, the Fifth and Fourteenth Amendments to the U.S. Constitution guarantee equal protection of the laws to all persons. This guarantee extends to equal protection against violence and bodily harm. Moreover, several statutes have been enacted at both the state and federal level which create criminal and civil liability for violence or threats of violence on the basis of race, color, ethnicity or national origin. See, e.g., Violent Crime Control and Law Enforcement Act of 1994; Civil Rights Act of 1968.

U.S. law has long provided criminal penalties for certain violations of civil rights, including particular acts of violence motivated by racism. See, e.g., 18 U.S.C. sec. 245(b)(2); 18 U.S.C. sec. 247(c); 42 U.S.C. sec. 3631. Federal "hate crimes" law prohibits any person from using force or willful threats to injure, intimidate, or interfere with, or attempt to injure, intimidate or interfere with any person because of his or her race, color, religion, or national origin and because he or she is engaging in certain federally protected rights, including rights related to education, employment and the use of public facilities and establishments which serve the public. In some instances, harsher penalties have been available when ordinary crimes are committed with racist intent. In addition, many states also protect equal rights to security of person through state hate crime laws.

Prisons. Title 28, C.F.R. Part 551.90 provides that federal inmates "may not be discriminated against on the basis of race, religion, nationality, sex, disability, or political belief. Each Warden shall ensure that administrative decisions and work, housing, and program assignments are nondiscriminatory." In addition, the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. sec. 1997 et seq., gives the Department of Justice jurisdiction to investigate institutional conditions and to sue state and local governments for a pattern or practice of egregious or flagrant unlawful conditions. Since CRIPA was enacted, the Civil Rights Division has investigated more than three hundred facilities in thirty-nine states, the District of Columbia, the Commonwealth of Puerto Rico, and the Territories of Guam and the U.S. Virgin Islands. As a result of the Department of Justice's CRIPA efforts, tens of thousands of institutionalized persons who were living in dire, often life- threatening conditions now receive adequate care and services. Additionally, the Department of Justice has obtained orders prohibiting the segregation of prisoners by race.

Federal Bureau of Prisons staff receive diversity management training during the Introduction to Correctional Techniques at the Federal Law Enforcement Training Center which is required for all new primary law enforcement employees. Diversity management principles are again emphasized during annual refresher training, which is required for all employees. Finally, a large number of national Bureau training seminars also have a session on diversity management.

The Bureau of Prisons maintains two separate databases of discrimination complaints filed by inmates. Inmates may seek formal review of an issue which relates to virtually any aspect of their confinement, if informal procedures have not resolved the matter. See 28 C.F.R. Part 542, Administrative Remedy. This program applies to all inmates confined in institutions operated by the Bureau of Prisons, inmates designated to contract Community Corrections Centers under Bureau of Prisons responsibility, and former inmates for issues that arose during their confinement.

Inmates must first attempt informal resolution of grievances before filing a formal request for administrative remedy. The initial request is filed at the institution level. If the inmate is not satisfied with the Warden's response, he or she may appeal to the Regional Office. If the inmate is not satisfied with the Regional Director's response, he or she may file a Central Office Administrative Remedy Appeal. After receiving the response from the Administrator, National Inmate Appeals, the inmate has exhausted the Bureau's administrative remedy program.

The records regarding allegations of discrimination in the administrative remedy program, however, do not distinguish between the various forms of discrimination. Thus, the general category of "discrimination" includes allegations of racial or ethnic discrimination, as well as discrimination based on gender, disability, religious belief, or national origin. Accordingly, it is not possible to provide statistics specifically on the number of allegations regarding racial or ethnic discrimination.

The second database that the Bureau of Prisons uses to monitor complaints is through the Office of Internal Affairs. All allegations of staff misconduct are required to be referred to the Bureau of Prisons Office of Internal Affairs which has the responsibility within the Bureau to ensure that allegations and appearances of staff misconduct and impropriety, including criminal matters, are reported to the U.S. Department of Justice Office of the Inspector General. The Inspector General has the authority to investigate serious incidents itself or defer the case to the Bureau of Prisons for an administrative investigation. The Inspector General may also refer criminal matters, e.g., physical or sexual abuse of an inmate, to the Department of Justice Civil Rights Division for prosecutorial consideration under applicable statutes.

Political Rights. As required by Article 5(c), U.S. law guarantees the right to participate equally in elections, to vote and stand for election on the basis of universal and equal suffrage, to take part in the government as well as in the conduct of public affairs, and to have equal access to public service.

These guarantees arose in the mid-1960s in response to the continued discrimination against Blacks in the electoral process despite the ratification in 1870 of the Fifteenth Amendment, which was intended to protect the right to vote from denial or abridgement on account of race, color, or previous condition of servitude. With the enactment of the Voting Rights Act of 1965, the political

process started to become open to Blacks. As interpreted, this statute also reaches discrimination on the basis of ethnic or national origin. It also requires that bilingual voting information be made available where more than 5percent of the population or 10,000 individuals within a jurisdiction speak a language other than English. The statute was amended in 1982 to prohibit practices that result in the denial or abridgement of the right to vote.

The Department of Justice is responsible, along with private plaintiffs, for the enforcement of the Voting Rights Act. The Department brings suits in federal court under Section 2 of the Act to challenge voting practices or procedures that have the purpose or effect of denying equal opportunity to minority voters to elect their candidates of choice.

By operation of Section 5 of the Voting Rights Act, any change with respect to voting that occurs in a specially covered jurisdiction (applies to nine states in their entirety and to parts of seven additional states) must obtain federal pre-approval before it can be put into affect. The federal review is designed to ensure that the voting change in question will not have the purpose or effect of making minority voters worse off. The Civil Rights Division reviews approximately 20,000 voting changes per year. In recent years, the Attorney General has blocked implementation of a wide variety of discriminatory changes, including annexations and at-large election systems that dilute minority voting strength, discriminatory local and statewide redistricting plans, discriminatory redistricting guidelines, and discriminatory voter assistance procedures.

In recent years, the Supreme Court has recognized a new cause of action that permits White voters to challenge redistricting plans enacted by state or local governments as unconstitutional. This cause of action requires that if a state or local government uses race as the "predominant factor" in redistricting, that use will be subject to strict judicial scrutiny. Under that standard, the action will only be upheld if there is compelling governmental interest in the use of race and if the use is narrowly tailored to meet that interest.

As of August 1, 2000, of the total 1,218 judges on the federal bench, 106 are Black (8.7 percent), 51 are Hispanic (4.2 percent), and 3 are Native American (0. Percent). Of the nine justices on the U.S. Supreme Court, one is of a racial minority (Black). Of the 159 judges on the U.S. Courts of Appeal, 10 are Black (6.3 percent), 10 are Hispanic (6.3 percent), 2 are Native American (0.6 percent), and 1 is Asian (0.6 percent).

According to the Directory of Minority of Judges of the United States published by the American Bar Association, of the approximately 60,000 state court judges, 3,610 are of racial minorities (approximately 6 percent). Of this number, 1,680 are Black, 1,310 are Hispanic, 254 are Asian, and 42 are Native American.

With respect to the 535 members of the 106th Congress, 37 are Black (6.9 percent), 18 are Hispanic (3.4 percent), 3 are Asian (0.6 percent), and one is Native American (0.2 percent). Of the 50 state governors, only two are of racial minorities - both are Asian. Finally, of the mayors of the 25 largest cities in the United States, 8 are Black (32 percent) and 2 are Hispanic (8 percent).

In 1992 the Census Bureau collected data regarding minority participation in local elected office through the 1992 Census of Governments. The Census collected data regarding general

purpose government officials (e.g., municipal mayors and city councilors) and special purpose government officials (e.g., school board members). Among the 419,761 officials for whom race or Hispanic origin was reported, 405, 905 were White (96.7 percent); 11,542 were Black (2.7 percent); 1,800 were American Indian, Eskimo and Aleut (0.4 percent); and 514 were Asian or Pacific Islander (0.1 percent). There were 5,859 local elected officials who identified themselves as Hispanic (1.4 percent). This data reflected a notable increase in minority representation since the last time the Census of Governments was conducted in 1987.

Other Civil Rights. Article 5(d) obliges States Parties to ensure equality of enjoyment of a number of human rights and fundamental freedoms, including freedom of movement and residence, the right to leave one's country and return, the right to a nationality, the right to marriage and choice of spouse, the right to own property alone as well as in association with others, the right to inherit, the right to freedom of thought, conscience and religion, the right to freedom of opinion and expression, the right to freedom of peaceful assembly and association.

These rights are guaranteed to all persons in the United States in accordance with various Constitutional and statutory provisions. The right to freedom of movement and residence in the United States is guaranteed to all citizens by the "right to travel." Crandall v. Nevada, 73 U.S. 35 (1868). The right of a citizen to enter and leave the United States is recognized by law. The right to marriage and choice of a spouse is one of the "fundamental rights" protected by the privacy provisions of the U.S. Constitution. Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v. Virginia, 388 U.S. 1 (1967). The right to non-discrimination in the ownership of property is protected by the Fifth and Fourteenth Amendments to the Constitution. See 42 U.S.C. sec. 1982; Shelly v. Kramer, 334 U.S. 1 (1948) (finding state action in the state court's enforcement of racially restrictive covenants unconstitutional). Freedom of thought, conscience, religion, opinion, expression and assembly are protected by the First Amendment. One of the purposes of the Fourteenth Amendment to the U.S. Constitution was to protect these ordinary rights of citizens against encroachment by state and local governments. These "privileges and immunities" of national citizenship cannot be abridged by state or local legislation.

Specific intent to interfere with these rights may be criminally prosecutable under a number of statutes. See, e.g., 18 U.S.C. sec. 241 (for conspiracy to deprive persons of such rights), 242 (for deprivation of rights under "color of law"), 245 (for violence or threatened interference with specified federal rights motivated in part by racial animus), 247 (for violent or threatening interference with right to exercise one's religious beliefs), and 42 U.S.C. sec. 3631 (for violent or threatening interference with rights to own or occupy property and to associate therein with persons of another race).

Economic, Social and Cultural Rights. Article 5(e)(i) guarantees equality and nondiscrimination with regard to the right to work, to free choice of employment, to just and favorable conditions of work, to protection against unemployment, to equal pay for equal work, and to just and favorable remuneration. As a matter of law and regulation, this obligation is met; in practice, however, significant disparities continue. The sources or causes of socio-economic differences are complex and depend on a combination of societal conditions, such as the state of the national and local economies, continued racial and ethnic discrimination in education and employment, and

individual characteristics, such as educational background, occupational experiences, and family background.

Although some narrowing of economic status among various racial and ethnic groups has occurred in recent years, substantial gaps persist. For example, in 1998 the median incomes of White non-Hispanic households and of Asian and Pacific Islander households ($42,400 and $46,600, respectively) were much higher than those of Black and Hispanic households ($25,400 and $28,300, respectively). By one 1993 measure, the median wealth (net worth) of White households was nearly 10 times that of Black and Hispanic households. In 1998, the poverty rate among Blacks (26.1 percent) was more than triple the poverty rate of White non-Hispanics (8.2 percent). The poverty rate among Hispanics (25.6 percent) was not statistically different from that of Blacks. According to data from the 1990 decennial census, the poverty rate for American Indians, Eskimos and Aleuts was 30.9 percent in 1989. In the same year, the poverty rate was 9.8 percent for Whites, 29.5 percent for Blacks, and 14.1 percent for Asians and Pacific Islanders.

The pervasiveness of child poverty is of particular concern. Since 1993, poverty rates for children under 18 years within the United States have fallen, but differences among racial and ethnic groups remain high. Between 1993 and 1998, the poverty rate for White children fell 2.7 percentage points to 15.1 percent. The rate for Black children fell even more, from 46.1 percent to 36.7 percent, but was still twice as high as the rate for White children. The rate for Hispanic children fell from 40.9 percent in 1993 to 34.4 percent in 1998, but was not statistically different from the rate for Black children in 1998. By comparison, the rate for Asian and Pacific Islander children in 1998 was 18.0 percent, not statistically different from the rate for White children, and the same as in 1993 (18.2 percent).

In 1989, the poverty rate for American Indian, Eskimo and Aleut children was 38.3 percent.⁶ In the same year, the poverty rate was 12.1 percent for White children, 39.5 percent for Black children, and 16.7 percent for Asian and Pacific Islander children.

Although there has been an unmistakable increase in inequality both overall and among racial and economic groups in the United States since the mid-1970's, some trends indicate movement toward greater economic equality. As a result of fiscal discipline, investments in the American people, and increased trade, the United States is in the midst of the longest economic expansion in its history. The unemployment rate for Blacks has fallen from an average of 14.2 percent in 1992 to an average of 7.7 percent in 2000 - the lowest rate on record. Since 1993, the poverty rate for Blacks has dropped from 33.1 percent to 26.1 percent in 1998 - another record low. Also, the unemployment rate for Hispanics has dropped from an average of 11.6 percent in 1992 to an average of 5.8 percent in 2000; and the poverty rate for Hispanics as fallen to 25.6 percent, the lowest since 1979.

With regard to other social and cultural rights, as the percentage of immigrants living in the United States has increased in recent years, larger numbers of individuals primarily speak languages

6 Poverty data for children for 1989, which are from the 1990 census, exclude the small number of children in households who are not related to the householder.

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other than English. While the number of individuals who speak or understand English and another language is also increasing, this diversity in languages has been met with calls for official language policies or legislation that requires that only English be spoken in the workplace. The present administration has taken the position that an "Official English" law would effectively exclude Americans who are not fully proficient in English from employment, voting, and equal participation in society and be subject to serious constitutional challenge. (Statement of Administration Policy, H.R. 123, 104^thCongress).

Employment Discrimination. Improvements in economic conditions have recently reduced the national unemployment rate to its lowest level in 30 years. According to the Bureau of Labor Statistics, the unemployment rate for Black Americans was 8.0 percent in 1999, compared to a national rate of 4.2 percent. Both figures have declined from the previous year (the national rate was 4.5 percent in 1998, the rate for Blacks was 8.9 percent). By comparison, the estimated unemployment rate for Hispanics in 1999 was 6.4 percent. The highest rate of unemployment is found among Native Americans on reservations (in some cases over 50 percent).

Despite strong legal protections safeguarding the right to free choice of employment and to just and fair conditions of employment, the exclusion of people from employment opportunities on racial and ethnic grounds remains a significant problem in the United States. Besides hiring, discrimination persists in the areas of training, promotion, tenure, layoff policies, and the work environment. Approximately 80,000 complaints of employment discrimination are filed annually with the EEOC; an additional 60,000 discrimination complaints are filed with state fair employment practices agencies. In recent years, the government has settled numerous cases involving allegations of racial discrimination in employment.

Some recent examples of EEOC cases that have resulted in significant settlements for plaintiffs are:

-- A $1.25 million settlement of a class action lawsuit against American Seafoods Company, a Seattle-based, major participant in the U.S. fishing industry. The suit charged the employer with subjecting eighteen Vietnamese-American workers to discriminatory working conditions based on their national origin.

-- A $2.1 million settlement of a class employment discrimination lawsuit against Woodbine Healthcare Center, a nursing home in Missouri. The suit alleged that the employer discriminated against sixty-two Filipino registered nurses in wages, assignments, and other terms and conditions of employment based on national origin.

-- A consent decree settling a lawsuit against American National Can Company. The suit alleged that the employer subjected Black employees to racial harassment, including racially offensive graffiti, name-calling and jokes. The employer is providing $275,000 to a class of ninety employees and is establishing a $100,000 Partnership Training Program, designed to improve employee relations and help employees enhance their problem solving skills.

The Department of Labor promotes quality workplaces that are free of discrimination through a multi-faceted strategy that includes civil rights enforcement, public education and communication, and strategic partnerships and cooperation. The Department of Labor enforces laws that ban discrimination by federal contractors and subcontractors in all aspects of employment, including compensation. The laws also require that federal contractors take pro-active steps to ensure that all individuals have equal employment opportunities. These laws help prevent pay discrimination by requiring contractors to conduct self-audits, which may bring to light otherwise unrecognized pay inequities.

Protection of foreign workers, especially migrants, seasonal and transient workers. In April 1998, the Attorney General announced the creation of an inter-agency Worker Exploitation Task Force, co-chaired by the Assistant Attorney General for Civil Rights at the Department of Justice and the Solicitor of the Department of Labor. Using existing federal criminal laws, including 18 U.S.C. sec. 1584 (Involuntary Servitude), sec. 1581 (Peonage), sec. 894 (Extortionate Collection of Debt), sec. 1951 (Extortionate Interference with Commerce), and several other statutes governing labor practices, smuggling and related offenses, the Task Force coordinates the investigation and prosecution of worker exploitation cases throughout the United States. These cases often involve the recruitment and smuggling of foreign nationals into the United States for forced labor and prostitution, and the exploitation of migrant farm workers, sweatshop laborers and other workers. The Task Force also promotes outreach and public education on the subject to increase awareness. Some examples of recent cases include:

In United States v. Miguel Flores, et al. (D. S.C. 1997), four defendants were successfully prosecuted for smuggling farm laborers into South Carolina and Florida from Guatemala and Mexico and exploiting them through the use of fear and intimidation. While working in labor camps, the victim workers were threatened, subjected to occasional beatings, and told that if they attempted to leave before paying off their smuggling fees they would be killed.

In United States v. Carrie Mae Bonds, et al. (E.D. N.C. 1993), Black homeless men in Atlanta were recruited by the defendant, a farm labor contractor, to work as migrant farm laborers in North and South Carolina. When the victims arrived at the labor camps they were told that they were already indebted to the defendant for their transportation and meals. The workers were also held at gunpoint and told that they could not leave the camps. The matter was resolved through a successful prosecution by the Department of Justice.

The Civil Rights Division of the Department of Justice was involved in the successful prosecution of eight Thai nationals who enticed citizens from Thailand to travel to the United States by promising the victims high wages, good hours and freedom. Upon arrival in the United States, the Thai laborers were transported to a work compound where they were confined and forced to work up to twenty hours at a time. The victims were housed in an apartment complex in El Monte, California, surrounded by razor wire and spiked fences and guarded by full-time guards. Threats were used against the victims and their families to force the workers to remain in the El Monte compound.

News reports of an extensive, multi-state slavery ring of Mexican nationals, who are both

deaf and unable to speak, resulted in charges brought by the United States against twenty defendants for recruiting and smuggling approximately sixty Mexican nationals to the United States with the promises of good jobs and for the purposes of exploiting and abusing them for profit. The Mexican nationals were forced to work under conditions of servitude peddling key chain trinkets on the streets and subways of New York City. All of the defendants pleaded guilty.

The Department of Justice's Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) is the only office in the federal government whose sole mission is to protect against workplace discrimination associated with citizenship status. OSC investigates allegations of national origin discrimination involving small employers (defined as having fewer than fifteen employees). OSC vigorously investigates and prosecutes charges of discrimination to ensure that legally authorized workers, often immigrants and refugees, are not discriminated against by employers. OSC works in partnership with state, local and federal civil rights enforcement agencies and with non-governmental entities around the nation to educate workers, employers and the general public about their rights and responsibilities under the immigration laws. It has obtained almost $2 million in back pay for victimized workers and fined violators over $1.4 million since 1987. OSC has obtained relief, for example, for a United States citizen who was denied the opportunity to apply for a clerk-typist position at a New York City law firm because of her Spanish accent; for a native-born Hispanic U.S. citizen poultry plant worker in Arkansas, who was denied a job because the employer thought she was not a U.S. citizen because she spoke Spanish and had received medical treatment in Mexico; for immigrant workers retaliated against by their employers for filing unfair employment practice charges; and for a Puerto Rican woman who was asked to show her green card to obtain a job at a New York manufacturing company despite the fact that Puerto Ricans are U.S. citizens at birth. OSC cases have been brought successfully against Fortune 100 companies as well as small employers in all industries, including airlines, apparel, agriculture, food and restaurants, and high-skilled professions.

The United Nations and some human rights advocates have raised concerns about enforcement of federal laws against unauthorized migrants entering the United States. In particular, some argue that increased enforcement efforts along traditional border-crossing routes at the U.S.- Mexico border have resulted in illegal crossing attempts at more dangerous points. This, they allege, has resulted in increased injury and fatalities at the southern border of the United States. In an effort to reduce migrant deaths and make the border safer for migrants, the Immigration and Naturalization Service (INS), in conjunction with the Government of Mexico, implemented the Border Safety Initiative in June 1998. Through deploying more agents and mobile units at the most hazardous crossing points, providing agents with safety equipment and training, deploying search and rescue teams, and expanding public outreach programs, the INS has significantly enhanced border safety.

Other complaints have focused upon the high percentage of removals of individuals to Mexico as compared to the home countries of other individuals who enter the United States illegally or overstay their visas. Also, detention conditions and mandatory detention policies enacted in 1996 have been the focus of concerns.

Unions. U.S. law guarantees all persons equal rights to form and join trade unions, as required by Article 5(e)(ii). A private sector union, which is the exclusive bargaining representative

under the National Labor Relations Act (NLRA), 29 U.S.C. sec. 151, has the responsibility to fairly represent each of the employees for whom it is the bargaining agent. Although unions have broad bargaining discretion, they must exercise that discretion fairly and in good faith. Unions are not barred from making contracts that negatively affect a segment of the bargaining unit, but they are prohibited from making discriminatory contracts based on irrelevant or invidious considerations (such as race or ethnicity). Similar protections are provided to railway and airline employees under the Railway Labor Act, 29 U.S.C. sec. 152, and to federal employees under the Civil Service Reform Act of 1978, 5 U.S.C. sec. 7101.

Enforcement of the NLRA's prohibitions is entrusted to the National Labor Relations Board, its independent General Counsel, private employees, and the judicial system. Enforcement of the Railway Labor Act is provided by arbitration through the National Mediation Board. Under the Civil Service Reform Act, hearings are held by the Federal Labor Relations Authority and appeals of its decisions are made directly to the Federal appellate courts. 5 U.S.C. sec. 7123.

Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race, color, sex, religion, or national origin, also covers workers within their unions. Enforcement of Title VII is by private individuals and or by the Federal Equal Employment Opportunity Commission.

Housing. Both federal and state laws guarantee equal rights to housing, as mandated by Article 5(e)(iii), and they prohibit discriminatory practices in the sale and rental of housing as well as in the mortgage lending and insurance markets related to housing. The Departments of Justice and Housing and Urban Development have vigorously prosecuted violations of the federal civil rights statutes in an effort to reduce housing discrimination.

The Fair Housing Act, originally enacted as Title VIII of the Civil Rights Act of 1968 and amended by the Fair Housing Amendments Act of 1988 (42 U.S.C. sec. 3601-19) prohibits discrimination on the grounds of race, color, religion, or national origin in the sale or rental of housing, as well as in other real estate related transactions (i.e., lending, insurance, and appraisal practices), with some limited exceptions. The Act also includes a criminal provision, 42 U.S.C. sec. 3631, which, as discussed in more detail above, is used to prosecute cross-burnings and other racially-motivated threats and violence directed at people in their homes.

The Fair Housing Act applies not only to actions by direct providers such as landlords and real estate companies, but also to actions by municipalities, banks, insurance companies, and other entities whose discriminatory practices make housing unavailable to persons because of their race, color, religion, sex, national origin, disability, or familial status. In addition, the Equal Credit Opportunity Act, 15 U.S.C. sec. 1691, prohibits creditors from discriminating against any applicant for credit on the basis of race, color, religion, national origin, sex or marital status, or age. This extends to mortgage applications, and therefore protects minority applicants from being discriminated against in the purchase of homes. This statute is enforced through litigation initiated by private parties and by the federal government.

The Department of Justice actively enforces laws against discrimination in housing. Most

recently, in 1999, the Justice Department resolved a case, Unites States v. Vernon, against an apartment complex for refusing to rent apartments in Albuquerque, New Mexico to Blacks. The case was resolved by a consent decree that required the owner to pay monetary damages to victims of the discrimination. Similar settlements were reached in cases brought against landlords in Richmond, Virginia and Jackson, Mississippi.

In United States v. Big D Enterprises, the Department successfully tried a case against an Arkansas landlord who discriminated against African American apartment-seekers. The court's decision awarding compensatory and punitive damages was affirmed on appeal.

In United States v. Boston Housing Authority, the Department alleged that the landlord was responsible for failing to respond to and take corrective actions to protect Black and Hispanic families who were who were subjected to racial and ethnic harassment from other tenants, including racial and ethnic epithets, threats, graffiti, vandalism, and assaults. The case was settled with an agreement for the landlord to pay damages to the victims and institute corrective policies and procedures to prevent future problems.

Also, in a case alleging discrimination in lending, the Department of Justice brought an enforcement action against a bank in Jackson, Mississippi alleging race discrimination. The complaint alleged that the bank, Deposit Guaranty, used different underwriting criteria for Black applicants than for White applicants. As a result, Black applicants for credit were three times more likely to be rejected than similarly situated White applicants. The case was resolved and the bank was required to pay $3 million in monetary damages and to institute uniform and centralized policies and procedures. Enforcement actions have been brought on behalf of Blacks, Native Americans, Hispanics and others throughout the United States.

In 2000, the Department of Justice, along with the Federal Trade Commission and HUD, filed and settled a suit in United States v. Delta Funding Corporation, alleging violations of fair housing, fair lending, and consumer protection laws in making its loans. This lawsuit marks the first such combined action was taken by the federal agencies. The complaint alleged that Delta, which made loans with the assistance of mortgage brokers, violated the Fair Housing and Equal Credit Opportunity Acts by granting home mortgage loans with higher broker fees to African American females than those provided to white males, that it violated the Real Estate Settlement Practices Act by allowing unreasonable broker fees, and that it violated the Home Ownership and Equity Protection Act by engaging in asset-based lending. The settlement provides for injunctive and monetary relief.

Health and Health Care. Although the U.S. health care system provides the finest overall care in the world, the data show significant disparities with regard to certain health measures. For example:

Infant mortality rates are 2.5 times higher for Blacks than for Whites, and 1.5 times higher for Native Americans. In 1997, the infant mortality rates for Whites was 6.0 deaths per 1000 live births, compared to 13.7 deaths per 1000 live births for Blacks.

Black men under age 65 have prostate cancer at nearly twice the rate of White men;

The death rate from heart disease for Blacks is 41percent higher than for Whites (147 deaths per 100,000, compared with 105 deaths).

Diabetes is twice as likely to affect Hispanics and Native Americans as the general population. Diabetes rates are 70 percent higher for Blacks than for Whites.

Black children are three times more likely than White children to be hospitalized for asthma.

The maternal mortality rate for Hispanic women is 23 percent higher than the rate for non-Hispanic women. Black women have a five percent higher death rate in childbirth than non-Hispanic White women.

Blacks experience disproportionately high mortality rates from certain causes, including heart disease and stroke, homicide and accidents, cancer, infant mortality, cirrhosis and diabetes.

Native Americans are 579 percent more likely to die from alcoholism, 475 percent more likely to die from tuberculosis and 231 percent more likely to die from diabetes than Americans as a whole.

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

The rate of AIDS cases was 30.2 per 100,000 for Whites in 1993. It fell to 9.9 in 1998. The rate for Blacks in 1993 was 162.2; 84.7 in 1998. The rate for Hispanics fell from 89.5 in 1993 to 37.8 in 1998.

Health Care Professionals. In 1996, about 740,000 medical doctors practiced in the United States (280 per 100,000 population). Minorities are likely to live in areas under-served by these and other medical professionals. Poor urban communities with high proportions of Blacks and Hispanics averaged only 24 physicians per 100,000. Poor communities with low proportions of Blacks and Hispanics averaged 69 doctors. This shortage is exacerbated by data that show Black physicians are five times more likely than other doctors to treat Black patients, and Hispanic doctors are 2.5 times more likely than other doctors to treat Hispanic patients. Minority doctors are also more likely to treat Medicaid or uninsured patients than White doctors from the same area.

Health Care Facilities. There are about 6,200 hospitals in the United States providing more than one million beds. Before the 1 960s, hospitals were voluntary organizations and did not face the same legal requirements as public institutions. In addition, hospital medical staffs were self- governing, which gave them freedom to select members, choose patients, and adopt their own payment policies. In many parts of the country, health care services and providers were segregated

by race. Since passage of civil rights laws in the 1 960s, these practices are no longer legal.

Health Care Financing. It is primarily through health insurance that Americans pay for their health care. Employer-provided health plans cover some of the costs of health care; others rely on private health insurers or managed care organizations, such as health maintenance organizations. Those without insurance must rely on financial assistance to obtain health coverage, and may qualify for public assistance, such as supplementary security insurance.

Public assistance for health care includes Medicare (for the elderly) and Medicaid (for the non-elderly poor). Medicare provides health insurance coverage for persons aged 65 years and older, and individuals with disabilities. Medicare provides health care coverage for more than 38 million people at a cost of about $200 billion. Medicaid provides coverage for low-income persons. It is administered by the states with matching funds from the Federal government. Medicaid covers 37 million people at a cost of about $164 billion. While Medicaid rules and policies are set and monitored by federal and state agencies, the administration of the programs is run by insurance companies.

Although Medicare and Medicaid provide more than 70 million people with health coverage, a large number of Americans remain uninsured and unable to access quality health care. Most of the uninsured are minorities and women with children, resulting in unequal access to health care. Almost 30 percent of Hispanic children, and 18 percent of Black children are estimated to be without health insurance. Moreover, immigrants, those who are unemployed, work part-time, or are retired often have inadequate insurance.

Eliminating Disparities in Health Care Access. The U.S. government has long sought to address the need for equal access to quality health care. During the past 35 years in particular, federal civil rights laws and policies have addressed the need to ensure equal access to health care and nondiscrimination in health care programs for racial and ethnic minorities. Congress has created several federal statutes designed to achieve equal protection of the laws through an emphasis on equality of access to institutions, including the nation's health care system. These statutes have helped establish the framework for the federal government's efforts to eliminate discrimination in the health care delivery system.

Two statutes are particularly relevant to health care: (1) the Hill-Burton Act, formally Title VI and XVI of the Public Health Service Act of 1964, Public Law No. 79-725, 60 Stat. 1040 (1946), codified as amended at 42 U.S.C. sec. 291-291-o (1994) and Pub. L. No. 93-641, 88 Stat. 2225 (1974); and (2) Title VI of the Civil Rights Act of 1964, Pub. L. No. 88-352, Title VI, 78 Stat. 252 (codified as amended at 42 U.S.C. sec. 2000d-2000d-7 (1994)).

When it was first enacted in 1946, the Hill-Burton Act was designed as a means for facilitating hospital construction, especially in rural communities. In 1964, however, Congress reformulated Hill-Burton as a key provision in the Public Health Service Act to include the modernization of existing hospital facilities. In 1974 the Act was amended yet again, this time requiring that hospitals receiving funds provide a specified amount of service to those unable to pay. Additionally, a facility receiving funds was to be made available to all members of the community

in which it was located, regardless of race, color, national origin or creed.

The Department of Health and Human Services (HHS) is the federal agency with primary responsibility for enforcing Title VI in the health care context, as well as other civil rights statutes and provisions addressing equal access to quality health care. HHS seeks to ensure compliance with the nondiscrimination provisions of these laws by relying on implementing regulations, policy guidance, comprehensive full-scope compliance reviews, complaints investigations, mediation, settlement agreements, technical assistance, outreach and education programs, as well as through enforcement actions.

The impact of Medicare and Medicaid, originally passed by Congress in 1965, has been enormous. In 1964, Whites were almost 50 percent more likely than Blacks to see a physician. By 1994 this ratio had been reversed: Blacks were about 12 percent more likely than Whites to have seen a doctor in the preceding two years. However, Blacks continue to be twice as likely to use hospital outpatient services, while Whites are substantially more likely to visit a private physician.

President Clinton has committed the nation to an ambitious goal of eliminating by 2010 disparities in health status experienced by racial and ethnic groups in the United States. President Clinton targeted six health priority areas: infant mortality, breast and cervical cancer screening and management, cardiovascular disease, diabetes, child and adult immunization levels, and HIV/AIDS. As part of this effort, for example, the Center for Disease Control recently awarded $9.4 million to thirty-two community coalitions in eighteen States to reduce the level of disparities in one or more of the priority areas.

Furthermore, in response to studies showing that language barriers in health care present serious problems for a large percentage of Americans with limited English proficiency (LEP), on August 11, 2000, President William J. Clinton issued Executive Order 13166, "Improving access to services for persons with limited English proficiency." The President ordered that "each Federal agency shall examine the services it provides and develop and implement a system by which LEP persons can meaningfully access those services consistent with, and without unduly burdening, the fundamental mission of the agency. Each Federal agency shall also work to ensure that recipients of Federal financial assistance (recipients) provide meaningful access to their LEP applicants and beneficiaries. To assist the agencies with this endeavor, the Department of Justice has today issued a general guidance document (LEP Guidance), which sets forth the compliance standards that recipients must follow to ensure that the programs and activities they normally provide in English are accessible to LEP persons and thus do not discriminate on the basis of national origin in violation of title VI of the Civil Rights Act of 1964, as amended, and its implementing regulations. As described in the LEP Guidance, recipients "must take reasonable steps to ensure meaningful access to their programs and activities by LEP persons."

Environmental Justice. The United States recognizes that low-income and minority communities frequently bear a disproportionate share of adverse environmental burdens and is working to implement existing laws that better protect all communities. "Environmental justice" is the fair treatment and meaningful involvement of all people regardless or race, color, national origin, culture or income with respect to the development, implementation, enforcement and

compliance of environmental laws, regulations and policies. Fair treatment means that no group of people, including racial, ethnic, or socio-economic groups, should bear a disproportionate share of negative environmental consequences resulting from industrial, municipal and commercial operations or the execution of federal, state, local and tribal programs and policies.

On February 11, 1994, President Clinton issued Executive Order 12898 to all departments and agencies of the Federal Government directing them to take action to address environmental justice with respect to minority populations and low-income populations. Agencies were directed, among other things, to address disproportionate human health or environmental effects of programs on such populations, to collect additional data on these subjects, and to coordinate their efforts through a newly-established, interagency working group.

While most environmental laws do not expressly address potential impacts on low income and minority communities, Executive Order 12898 directs the Environmental Protection Agency (EPA) "[t]o the greatest extent practicable and permitted by law . . . [to] make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations." Detailed information about the EPA's environmental justice program, the environmental justice federal advisory committee, and related financial assistance programs is available on the internet at <http://es.epa.gov/oeca/main/ej/index.html>.

Recently, American Indian and Alaska Natives argued successfully to the EPA that Indian tribes had suffered environmental injustice because the federal government had not provided them equitable funding and other agency resources necessary to develop environmental programs. Federally recognized Indian tribes generally have the authority to regulate activities on their reservations that affect their environment. Thus, such Indian tribes are in the process of developing comprehensive tribal environmental laws and regulations. However, unlike the states of the United States, Indian tribes had not, until recently, been provided the federal resources to assist them in the development of their environmental programs. Today, the EPA has significantly increased its funding and technical assistance to Indian tribes. As a result many tribes are now developing and enacting their own tribal environmental codes and beginning to take charge of their own environments through the enforcement of these codes and through an improved partnership with EPA.

Many groups and advocates are concerned that existing civil rights legal remedies may provide insufficient protection from environmental hazards for minority groups. In R.I.S.E., Inc. v. Kay, 768 F. Supp. 1144 (E.D. Va. 1991), aff'd, 977 F.2d 573 (4th Cir. 1992), for example, a Fourteenth Amendment challenge to the siting of county-run regional landfills in predominantly Black neighborhoods was rejected because the plaintiff had not provided sufficient evidence of intentional discrimination. The District Court stated that the Equal Protection Clause does not impose an affirmative duty to equalize the impact of official duties on different racial groups, but merely prohibits government officials from intentionally discriminating on the basis of race. Advocates have also asserted violations of Title VI of the Civil Rights Act of 1964 in environmental justice cases, but there have been no authoritative court decisions on this issue. In December 1997,

the Third Circuit in Chester Residents Concerned for Quality Living v. Seif, 32 F.3d 925 (3d Cir. 1997), held that plaintiffs, Black residents of the predominantly Black city of Chester, Pennsylvania, had a private right of action under EPA's Title VI disparate impact regulations to bring a lawsuit challenging alleged discriminatory effects of the state's environmental permitting practices. The Supreme Court granted certiorari review, but then dismissed the case and vacated the opinion as moot when the permit at issue in the case was withdrawn in August 1998. 524 U.S. 974 (1998).

Some have argued that the U.S. Navy's use of Vieques Island in Puerto Rico as a bombing range has had negative environmental consequences for Puerto Ricans living on or near the island. In 1999, the death of a civilian security guard (the first in over sixty years of the Navy's use of the range) sparked extensive protests against the U.S. Navy's use of the range.

Federal agencies have addressed environmental justice issues in several contexts. For example, the White House Council on Environmental Quality (CEQ) issued guidance to agencies on addressing environmental justice concerns under the National Environmental Policy Act, 42 U.S.C. 4321-4370d, which requires agencies to analyze the environmental and related socio-economic, cultural and other impacts of their decisions. The EPA has established a formal advisory council made up of representatives from community organizations, academia, NGOs, industry, and state and local governments to advise the agency of environmental justice policy matters. Agencies have also conducted outreach to affected communities to hear about environmental justice concerns in a variety of contexts, ranging from siting of transportation projects to hazardous waste cleanup remedies to selecting supplemental environmental projects in environmental enforcement actions. Moreover, the Agency's Environmental Appeals Board and other administrative tribunals review agency decisions for compliance with Executive Order 12898, described above.

Education and Training. Racial segregation in education has been illegal in the United States since the U.S. Supreme Court's landmark decision in Brown v. Board of Education, 349 U.S. 483 (1954). As a result of that decision, the Civil Rights Act of 1964, and Swann v. Board of Education, 402 U.S. 1 (1971), schools became increasingly integrated. Subsequently enacted statutes provide additional protections. Many enforcement actions have been brought by the government. The Department of Justice has brought more than 200 cases involving more than 500 school districts that practiced de jure discrimination. The U.S. Department of Education administers a number of significant laws and programs many of which are replicated at the state and local level. In their totality, these measures create a legal and policy framework aimed at the elimination of race-based disparities in educational quality and opportunity. Today, the American public educational system is open and accessible to all, regardless of race, ethnicity, immigration status, or socio-economic status.

The Office for Civil Rights (OCR) within the U.S. Department of Education (Department) bears the primary federal responsibility for eliminating barriers to equal educational opportunity. This office enforces a number of laws prohibiting discrimination in programs and activities receiving federal financial assistance.

OCR's statutory enforcement responsibility includes Title VI of the Civil Rights Act of 1964 (Title VI), and its implementing regulation at 34 C.F.R. Part 100 and 101, which prohibit race, color, and national origin discrimination. This statutory and regulatory framework affects virtually the entire scope of education in the United States, as nearly all education institutions in the nation - from elementary through graduate or professional schools - receive federal financial assistance. OCR monitors the activities, practices and policies of:

nearly 15,000 public school districts;

more than 3,600 colleges and universities;

approximately 5,000 proprietary organizations, such as training schools for truck drivers and cosmetologists; and

thousands of public libraries, museums and vocational rehabilitation agencies.

Currently, OCR is responsible for the civil rights provisions for the Magnet Schools Assistance Program (Title V, Part A of the Elementary and Secondary Education Act). OCR conducts a pre-grant review of magnet school applications to determine whether the school district has an eligible desegregation plan or voluntary plan to eliminate, prevent, or reduce minority group isolation. OCR provides civil rights technical assistance to these school districts.

During its early years, OCR focused on school districts and colleges that were operating openly segregated education systems. OCR's work has evolved from an initial focus on monitoring and enforcing desegregation plans to the more complex and subtle issues of ensuring students and student applicants equal access to programs and services.

Twelve field offices throughout the country conduct OCR's enforcement work. The headquarters office issues policy in response to emerging issues or when there is new legislation, referenda, or court decisions. Policy guidance is shared broadly to help educators meet their civil rights obligations. OCR executes its civil rights compliance responsibilities through a number of activities, including complaint investigations, compliance reviews and technical assistance.

A large share of OCR's work is devoted to investigating civil rights complaints filed by students, parents and others. OCR has incorporated non-adversarial dispute resolution techniques into the case resolution process. For example, OCR can act as a neutral third party, mediating between the student or parent and the school or college to enable them to arrive at an agreement on how to resolve the issues in a complaint. Or, OCR can negotiate with the recipient, becoming a party to the resolution agreement resulting from investigating the allegations raised in the complaint. Often, OCR uses a combination of these techniques to achieve case resolution. In some instances, OCR reaches the determination that there is insufficient evidence to support a finding of a civil rights violation. It is only when all other methods fail that OCR moves to formal administrative or judicial enforcement.

In addition to responding to complaints, OCR initiates and conducts reviews to determine compliance with the nation's civil rights laws. School districts or local and state education agencies are targeted using information from contemporary sources. Education and civil rights groups, community organizations, parents and the media all contribute to the variety of information used in

OCR's identification process. OCR also relies on statistical data from sources such as the Elementary and Secondary School Civil Rights Compliance Report, which it administers.

Eliminating discrimination includes the prevention of discrimination. OCR provides technical assistance to schools and colleges, as well as to community, student and parent groups. The aid that OCR gives to education institutions helps them comply with federal civil rights requirements, while the assistance given to students and others informs them of their rights under the law regarding equal access to educational opportunity.

One example of the timely assistance given by OCR to school districts and state education agencies is the work of OCR's San Francisco office. California's Proposition 227, which passed in June 1998, requires school districts to redesign their education programs for the state's 1.4 million English language learners. Before the start of the new school year, districts had to develop new curricula, obtain new teaching material, revise student and teacher assignments, and educate teachers and parents about new state requirements. OCR assisted California districts by working with the state education agency to offer a series of workshops at school districts and county offices of education focusing on federal law in the context of the new state law.

In addition to the work of OCR and other federal agencies, the current Administration has instituted and expanded an array of programs to widen college opportunities for students of modest means - a group disproportionately composed of racial and ethnic minorities.

Nonetheless, in the area of education, there continues to be a mixed record of recent gains and persistent inequalities. It is noteworthy, however, that inequalities have narrowed. Among the population 25 years and over in 1998, the proportion of Whites with a high school diploma (84 percent) was higher than for Blacks (76 percent) or for Hispanics (56 percent), but not significantly different from the figure for Asians and Pacific Islanders (85 percent). In 1980, there was a larger differential in the proportions who had completed high school for Whites (69 percent) and Blacks (51 percent) than in 1998.

In 1998, 25 percent of the White population 25 years and over had completed college (Bachelor's degree or higher). The corresponding proportions were 15 percent for Blacks, 42 percent for Asian and Pacific Islanders, and 11 percent for Hispanics.

On average, Hispanics are likely to have much lower levels of educational achievement than Whites or Blacks. For Hispanics generally, the figures for 1999 indicate that 61.6 percent of the population, 25 to 29, had completed at least high school. Those from Central and South America were more likely to have achieved that educational level (62.9percent) than Mexican Americans (46.2percent) or Puerto Ricans (59.8percent), with Cubans at about the same level (62. 1percent).

According to the 1990 decennial census, the proportion of American Indians, Eskimos, and Aleuts 25 years and over who were high school graduates was 66 percent. Corresponding figures from the 1990 census were 78 percent for Whites, 63 percent for Blacks, 78 percent for Asians and Pacific Islanders, and 50 percent for Hispanics.

For the proportions who had completed college, the 1990 census shows 9 percent for American Indians, Eskimos, and Aleuts; 22 percent for Whites; 11 percent for Blacks; 37 percent for Asians and Pacific Islanders; and 9 percent for Hispanics.

Bilingual education. The current Title VII of the Elementary and Secondary Education Act responds to the needs of students for whom English is a second language. Section 7102(a)(15) includes among the underlying congressional findings the following: "[T]he Federal Government, as exemplified by Title VI of the Civil Rights Act of 1964 and Section 204(f) of the Equal Education Opportunities Act of 1974, has a special and continuing obligation to ensure that States and local school districts take appropriate action to provide equal educational opportunities to children and youth of limited English proficiency." Further, in Section 7102(b), the Congress declares it to be the policy of the United States "to assist State and local educational agencies, institutions of higher education and community-based organizations to build their capacities to establish, implement and sustain programs of instruction for children and youth of limited English proficiency." To implement this policy, Title VII provides for assistance for, among other things, bilingual education capacity and demonstration grants and research, evaluation, and dissemination.

In 1974, Congress established the Office of Bilingual Education and Minority Languages Affairs to help school districts through funding and providing technical assistance to meet their responsibility to provide equal education opportunity to limited-English proficient children. A subsequent Supreme Court ruling, Plyler v. Doe, established that states cannot deny an equal public education to undocumented immigrant children. Amendments to Title VII since its initial passage have expanded eligibility to students who are limited-English proficient; emphasized the transitional nature of native language instruction; reinforced professional development; supplied additional funds for immigrant education; and provided for research and evaluation at the state and local level.

Today, 2.8 million elementary and secondary students, speaking over 150 languages, are identified as limited-English proficient. Among the several components that make up the Clinton Administration's Hispanic Education Action Plan are bilingual, immigrant, and migrant education programs targeting elementary and secondary students, as well as sustained mentoring and college assistance programs. In addition, the Administration has proposed expansion of an adult education "English as a Second Language Civics" program to assist immigrants in learning English, navigating public institutions, and being involved in their communities.

Cultural Activities. Article V(e)(vi) requires States Parties to recognize and guarantee the right to equal participation in cultural activities. In the U.S. system, these rights are protected primarily through limitations on the ability of the government to interfere or restrict the expression of one's culture. The First Amendment to the U.S. Constitution guarantees an individual's freedom of speech and peaceable assembly, which includes the expression of one's cultural identity.

The United States has a rich and diverse cultural heritage. From its earliest days, the United States was a haven for immigrants fleeing persecution on the basis of religion, and it continues to be a destination for immigrants of many different races, ethnicities and nationalities. Largely because of this history, most Americans recognize and appreciate the value of cultural diversity, and both individuals and groups pursue their cultural identities in a wide variety of ways. This tradition

is manifest in the thousands of ethnic heritage parades and events, ethnic and cultural clubs, educational programs, and religious, theatrical, artistic, and musical events that celebrate cultural diversity nationwide.

One medium where ever more culture is created, ever more commerce is transacted, and ever more learning takes place is the Internet. Unfortunately, unequal access to technology and high-tech skills has resulted in a "digital divide" in the United States along the lines of income, educational level, race and geography. The current Administration is striving to make access to computers and the internet as universal as the telephone is today - in school, libraries, communities and homes. Working in partnership with the private sector, the Administration seeks to: broaden access to technologies such as computers, the Internet, and high-speed networks, provide people the skilled teachers and the training they need to master the information economy, and promote on-line content and applications that will help empower all Americans to use new technologies to their fullest potential.

Access to Public Accommodations. Consistent with Article 5(f), U.S. law provides strong protections for the right of equal access to any place or service intended for use by the general public, including transport, hotels, restaurants, cafes, theaters and parks.

Title II of the Civil Rights Act of 1964 (42 U.S.C. sec. 2000a) prohibits discrimination because of race, color, religion, and national origin in certain places of public accommodation, such as hotels, restaurants, and certain places of entertainment. In addition, most states have their own laws requiring equal access to public accommodations.

Over the last five years, the majority of public accommodation cases pursued by the Justice Department have involved bars or nightclubs that utilize a similar pattern to keep Black patrons from entering the establishment. Typically the club owner advises Black patrons that the club is private and the patron would have to apply for membership. White patrons, in contrast, are allowed entry without membership or are offered the opportunity to become members on the spot. Cases that raised this scenario include United States v Patin, United States v. Broussard, United States v. Lagneaux, and United States v. Richard, all cases filed in Louisiana in 1995, 1996, 1997, and 1999 respectively; and United States v. C & A Enterprises, filed in West Virginia in 1996. These cases were resolved and the defendants enjoined from continuing their discriminatory practices.

Two Title II suits in recent years have more broadly alleged discrimination in nationwide chains. In 1999, the Department sued HBE Corporation, the owner of the Adam's Mark Hotels. The lawsuit alleged that AMH placed non-white guests in less desirable rooms than white guests or segregate them to the least desirable areas of the hotel; charged non-white guests higher room rates than white-guests; charged different prices for goods and services for non-whites guests than white guests; applied stricter security, reservation, and identification requirements to non-white guests than white guests; and had policies to limit the number of non-white clientele in the hotel's restaurants, bars, lounges or clubs. A proposed settlement of the case is pending court approval. It will enjoin future discrimination at Adam's Mark Hotels and provides for a compliance officer to monitor compliance with the settlement decree; investigate any complaints filed by hotel guests; review, approve, and monitor a training program as well as oversee a testing program; and establish a

marketing plan to identify, target, and reach African American markets.

Several years earlier, a suit was filed against the Denny's Restaurant chain. On May, 24, 1994, settlement papers were filed in the United States' Title II action and two private lawsuits against Denny's, one of the largest food service companies in the country. The settlement, embodied in two consent decrees filed in U.S. District Courts in Los Angeles and Baltimore, resolved these suits that had claimed that Denny's failed to serve Blacks, required Blacks to pre-pay for their food, forced them to pay a cover charge, and neglected to serve them. Under the settlement, Denny's agreed to pay $45 million in damages and implement a nationwide program to prevent future discrimination. The decrees required Denny's, inter alia, to: retain an independent Civil Rights Monitor with broad responsibilities to monitor and enforce compliance with the decrees; educate and train current and new employees in racial sensitivity and their obligations under the Public Accommodations Act; implement a testing program to monitor the practices of its company and franchised-owned restaurants; and feature Black and members of other racial minority groups as customers and employees in advertising to convey to the public that all potential customers, regardless of their race or color, are welcomed at Denny's. The decrees are scheduled to expire in November 2000.