As a signatory to the Convention on the Elimination of Racial Discrimination (CERD), the United States is under an obligation to condemn racial discrimination and pursue a policy of eliminating racial discrimination, in all its forms. The U.S. has not taken seriously the duty under Article 2 of CERD to affirmatively address racial discrimination. Instead, the U.S. has rationalized racial discriminatory effects as not covered by U.S. law. Sometimes these effects are caused by explicit government polices. At other times they are caused by private actors. Frequently, it is a combination of both.
The Convention defines racial discrimination to mean distinctions, exclusions, restrictions or preferences based on race which have “the purpose or effect” of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in any field of public life. CERD’s definition of discrimination is unequivocal: effects and racially disparate outcomes caused by individual action or government practices or policies, singularly or collectively, are of primary concern.
Contrary to CERD, U.S. law defines racial discrimination more narrowly in at least two critical respects. First, with few exceptions U.S. law narrowly defines cognizable racial discrimination by requiring evidence of intent to discriminate. Section II demonstrates that such a requirement is contrary to the framework of CERD and does not reflect the real-world operation of discriminatory behavior in contemporary American society. As recognized by CERD, discrimination can be the product of facially race neutral polices and practices as well as unintentional action and inaction of individuals. This observation is not controversial and yet fails to be robustly recognized in U.S. law.