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Unformatted text preview: LOCAL IMPLEMENTATION: NEW YORK, NEW YORK Race Realities in New York City Response to the Periodic Report of the United States to the United Nations Committee on the Elimination of Racial Discrimination February 2008 Prepared by: Human Rights Project of the Urban Justice Center Acknowledgements The Human Rights Project at the Urban Justice Center would like to thank each of the following organizations for their participation in the development of Race Realities in New York City, a NYC CERD Shadow Report Anti-Discrimination Center Black New Yorkers for Educational Excellence Center for Law and Social Justice, Medgar Evers College, CUNY Columbia Law School Human Rights Clinic Columbia Law School Sexuality and Gender Law Clinic Concerned Citizens for Family Preservation Domestic Violence Project at the Urban Justice Center Human Rights, Public Policy & Health Center for Community and Urban Health, Hunter College, CUNY Immigrant Voting Project Independent Commission on Public Education (ICOPE) International Women's Human Rights Clinic of CUNY School of Law Juvenile Justice Project, Correctional Association of New York Mental Health Project Million Worker March Movement National Center for Schools and Communities, Fordham University National Economic and Social Rights Initiative (NESRI) National Latina Institute for Reproductive Health National Lawyers Guild Neighborhood Economic Development Advocacy Project (NEDAP) New Immigrant Community Empowerment New York City AIDS Housing Network New York Coalition to Expand Voting Rights Northern Manhattan Coalition for Immigrant Rights NYC Chapter of Blacks in Government NY Solidarity Coalition with Katrina and Rita Survivors NYU Law Students for Human Rights NYU School of Law Center for Human Rights and Global Justice NYU School of Law’s Education Law and Policy Society Partnership for Family Supports and Justice c/o Fund for Social Change Picture the Homeless Sex Workers Project The Opportunity Agenda Voices of Women Organizing Project Women of Color Policy Network The following individuals contributed to the Report: S.E. Anderson*, Andy Artz, John Beam*, Faith Bekermus, Avni Bhatia, Emily Bloomenthal, Doris Brosnan*, Chloe Dugger, David Goodwin, Jessica Kiessel, Rachel Kreinces Stier, Randi Levine, Marie Mark, Andrea Nieves, Kristina Portner, Ellen Raider*, Oriana Seastone Stern, Jodi Simmons, David Spielman, Elizabeth Sullivan, Jennifer Swayne* Todd Vanidestine, Shannon Wilson (Education). Mana Barari*, Damon Hewitt, Charles Jenkins, Sapna Patel, Chris Silvera, Brenda Walker, Brandon Ward* (Employment). Nisha Agarwal*, Sabrinah Ardalan*, Dee Burton*, Claudia Dieme, Veronica Eady, Martin Gittelman, Darrick Hamilton, Asantewaa Harris, Kevin Hsu*, Basil Kim, Cynthia Racer*, Donna Smith, Rodrick Wallace (Health). Jonathan Brown, Deyanira Del Rio, Ryan Gee, Craig Gurian*, Monica Iyer*, Colleen McCormack-Maitland, Sam J. Miller*, Rob Robinson*, Larkin Robson (Housing). Mishi Faruqee*, Judith Joffe-Block, Mie Lewis, Sapna Patel, Nathalie Pierre*, Irum Taqi (Criminal Justice). Michael Arsham, Rolando Bini, Fola Campbell*, John Courtney*, Ejim Dike*, Jessica Deihl, Julie Kottakis, Jessica 2 Orozco, Kristie Ortiz, Sabrina Steel (Child Welfare). Shilpi Agarwal*, Amna Akbar*, Anne Gell, Sara Holzman, Carrie Bettinger-Lopez*, Suzanne B. Goldberg*, Vivian Lehrer*, Jonathan Lieberman-Fernandez, Crystal Lopez, Simrin Parmar (Domestic Violence). Raquel Batista, Julia Busetti, Rhonda Copelon, Andrés Correa*, Shalini Deo, Aishia Glasford*, Jessica Gonzalez*, Frances Miriam Kreimer, Anuja Malhotra*, Anja Rudiger*, Diana Salas* (Immigration). Ron Hayduk, Laleh Ispahani, Judith Joffe-Block, Frances Miriam Kreimer*, Glenn Magpantay, Glenn E. Martin, Marc Mauer, Lindsey Weinstock*, Maggie Williams (Voting Rights). Amanda Croushore, Brenda Stokely. (*denotes principle drafters and/or contributors) 3 Introduction There is a fundamental race problem in New York City. Race discrimination is evident in the disparities seen in almost all spheres of life including education, employment, housing, health, child welfare, criminal justice, mental health, domestic violence, immigration, and voting. Among other things, New Yorkers of color are less likely to graduate from high school, to have health coverage, or to own a home. They are however more likely to live in poverty, to get arrested, or to live in foster care. More importantly, the effects of such discrimination are not experienced individually, but instead have a compounding effect that serves to deny people of color some of their most basic human rights, entrapping many in a cycle of poverty. Over 1.5 million people—a population roughly eight times that of Geneva’s—live below the federal income poverty level in New York City (“the City”).1 People of color constitute over 80 percent of that population. While poverty is clearly linked to the discrimination faced by people of color, it does not account for it in full: studies show that racial and ethnic disparities in social indicators persist even when controlling for income. And yet, overall, the extent and depth of the problem largely goes unacknowledged. More importantly, racial disparities persist despite the fact that New York has one of the most comprehensive civil rights laws in the country. In fact, disparities are often the direct or indirect consequences of existing government policies and practices. Under the International Convention on the Elimination of all forms of Racial Discrimination (CERD), which the United States and thus New York City has formally accepted, New York City has an obligation to remedy these disparities. The following report titled Race Realities in New York City will be submitted to the United Nations Committee on the Elimination of Racial Discrimination (CERD Committee),the body set up to oversee implementation of CERD. The report highlights: Situations of persistent discrimination against people of color and immigrants in New York City that violate the City’s obligations under CERD; Current disparities based on race and ethnicity in New York City, and government policies and practices that create or aggravate these disparities; Federal, state, and local government shortcomings in addressing and eliminating race disparities and discriminatory practices; and Recommendations for what governments at the local, state, and federal levels can do to remedy discrimination and comply with their obligations under CERD. US Report on CERD Compliance CERD is the primary international human rights treaty on eliminating racial discrimination. It is also one of the few human rights treaties that the United States has formally accepted. The government of the United States has an obligation, under CERD, to submit a periodic report to the United Nations Committee on the Elimination of Racial Discrimination (CERD Committee) on steps the U.S. has taken to address racial discrimination at the federal, state and local levels. In April 2007, the United States submitted a report (US Report) to the CERD Committee that will be reviewed in February 2008, in Geneva, Switzerland. This US Report combined the government’s overdue fourth, fifth and sixth periodic reports, and is the second report that the United States has submitted since it ratified CERD in 1994. 4 The US Report provides almost no specific information about New York City and fails to address key issues that are relevant to New Yorkers of color, such as police brutality, child welfare, and domestic violence. The US Report also lacks any meaningful information and analysis on some of the issues—health, housing, employment, and education—that it does cover, and does not account for persistent race disparities in these areas. Instead, in its report, the United States government repeatedly reminds the CERD Committee that federal and state constitutions and laws provide sufficient protection for compliance with CERD, and that United States law does not recognize the social, economic and cultural rights guaranteed in international law.2 Goals of the Shadow Reporting Process Recognizing the potential for deficiencies in the periodic reports that governments submit, the CERD Committee also accepts reports from non-governmental organizations (or civil society). These reports are called “shadow reports.” The CERD Committee uses shadow reports to guide its questioning of the US during oral presentations. In an effort to supplement and critique the US Report, a coalition of New York City advocates came together to write and submit to the CERD Committee a shadow report that provides information specific to New York City. This report is intended to assist the CERD Committee in its preparations for the review of the US Report in February 2008. Its ultimate goal is to hold the United States and New York City accountable to their obligations under CERD. It does this by providing the CERD Committee with supplementary information on race disparities and racial discrimination in New York City. Specifically, this Shadow Report examines race disparities and discrimination in nine different areas: education, employment, housing, health, criminal justice, child welfare, domestic violence, immigration, and voting rights. The Shadow Report also recognizes that men and women of color experience discrimination differently, and that the experience of discrimination is often exacerbated by membership in other marginalized groups including immigrants, lesbian, gay, bisexual and transgender (LGBT) people, and youth. To the extent that data were available, this report provides an intersectional analysis of race, gender, age, immigration status, and sexual orientation. The information in this report has also been submitted to the US Human Rights Network for inclusion in the national CERD Shadow Report, to be filed with the CERD Committee. On the local level, this Report will be used to monitor New York City’s compliance with CERD, and to push for an action plan to address race disparities in New York City. Unavailability of Disaggregated Data One of the greatest challenges in analyzing race disparities and the disparate impact of government policies and practices on people of color is the dearth of data disaggregated by race and ethnicity. The need for disaggregated data cannot be over-emphasized, as it is the first step in appropriately addressing the problem. Yet, New York City agencies do not regularly publish performance and service data disaggregated by race. In fact, the New York City Police Department (“NYPD”) appears more disposed to publishing disaggregated data for dogs than it does for human beings.3 It is even more difficult to obtain data disaggregated by both race and gender, or data that accounts for immigration status, sexual orientation, and gender identity. When race data is available, it is often disaggregated according to racial definitions used by the US Census. However, these categories are overly broad and blatantly omit important racial and 5 ethnic groups, making it difficult, if not impossible, to obtain an accurate picture of racial disparity. According to the 2000 Census, New York City is home to approximately 200 ethnic groups who speak some 115 languages.4 Yet disaggregated data provided by the City is mostly confined to five major racial groups -- Caucasian, Latino/Hispanic, African American, Asian, and Native American.5 There are often no sub-categories for the four largest Asian ethnic groups in New York City--Chinese, Indian, Korean, and Filipino--which makes it difficult to assess the differential impact of policies on one Asian ethnic group compared to another. One of the most serious data omissions is that of a specific category for Middle Easterners, Arabs and North Africans. The United States Census Bureau defines “White” as people “having origins in any of the original peoples of Europe, the Middle East, or North Africa.”6 Thus even those who choose to write in Arabic, Iranian, Near Easterner, or Lebanese are considered part of the White racial category.7 Even though discrimination against Middle Easterners in New York City and the rest of the nation has intensified since 9/11, becoming a major human rights concern, there is no way to measure such discrimination effectively since Middle Easterners are still officially classified as White. The CERD Committee noted this omission in its Concluding Observations to the first report submitted by the United States in 2001.8 While the United States attempted to respond to this, and acknowledged that New York City has one of the largest Arab populations in the country, it is unclear that a specific category will be created for Middle Easterners in the next Census.9 New Approach Offered by CERD: Effects Rather than Intent In its report to the CERD Committee, the United States asserts that there are sufficient laws to address discrimination domestically, but neglects to mention that these laws have been rendered ineffective for most victims of discrimination.10 Recent court decisions such as Alexander v. Sandoval have prevented people of color from obtaining remedies to racially discriminatory actions committed by entities that receive federal funds.11 And while people can still sue for intentional discrimination, it is very difficult to meet the high burden of proof required to show that the discrimination was intended.12 CERD defines racial discrimination as any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin, which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. Discrimination, as it is defined under CERD, includes any government policy that has the effect of discriminating against people of color.13 A policy can result in a distinction, exclusion, or restriction “based on” the fact of one’s race without that policy being intentionally directed towards members of one particular race or national origin. Under CERD, such a policy would be discriminatory and the CERD Committee has explicitly maintained this interpretation.14 Domestic anti-discrimination laws require most victims of discrimination to prove the discriminatory intent of the policy that they seek to remedy. Because intent can be cloaked behind apparently even-handed practices, this burden of proof is extremely difficult to meet successfully under domestic law. In comparison, the standard for equality and fairness created by 6 CERD insists on looking at the evidence of discriminatory effects as opposed to determining foggy notions of intent. For example, the disenfranchisement of felons may not be intended to exclude or restrict any particular racial group, yet the effect falls disproportionately on people of color and is thus a human rights violation under CERD. In the face of restrictive domestic law, CERD’s more expansive definition of discrimination allows victims to seek redress for a wider range of policies and practices whose negative consequences disproportionately affect people of color. In general, CERD offers a stronger set of protections than those currently in use under US law. These protections include a broader definition of discrimination, an affirmative obligation on government to address racial discrimination, an emphasis on the collection of disaggregated data, and an allowance for special temporary measures to address disparities. The breadth of protections in CERD makes it a better instrument in tackling contemporary forms of discrimination, which tend to be indirect and characterized by their consequences rather than founding intentions. Yet the United States and New York City governments refuse to acknowledge the superiority of CERD protections. In particular, the present mayoral administration under Michael Bloomberg has stated that current laws are sufficient to address and avoid racial discrimination.15 While it is true that New York City has strong civil rights laws that protect against racial discrimination, enforcement of some of these laws has been limited by recent court cases, as mentioned earlier. When one examines how prepared the City is to deal with the possible discriminatory effects of current policies, one often finds that its ability is compromised. For example, the New York City Commission on Human Rights, the city agency primarily responsible for investigating and prosecuting discrimination complaints, is understaffed and underfunded. Despite a brief period of reinvestment in 2002, the agency has seen budget cuts since 1991, with staff falling from a high of 152 about 15 years ago to only 80 last year.16 Moreover, the Commission’s bureau responsible for the investigation, mediation, and enforcement of possible violations of the City Human Rights Law has only 26 employees, including 13 attorneys--half of what it had been in 2002.17 Nevertheless, under CERD, the US government is required to address this disparate impact through “effective review [of] governmental, national and local policies, and [through the] amend[ing], rescind[ing] or [nullification of] any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists.”18 Moreover, CERD’s requirements apply to all levels of government—federal, state and local. Like the federal government, the City has no effective means of addressing facially neutral policies and practices that have the sometimes unintended consequence of discriminating against people of color. As evidenced in the following chapters of this Report, such unintended consequences are pervasive, constituting a de facto state of discrimination that the Federal, State and local governments have failed to address. The City in particular relies too heavily on expensive litigation as a remedy, which is a reactive strategy. By contrast, embracing the standards in CERD would allow the United States and New York City to tackle discrimination and race disparities proactively and systematically, reducing the need to point fingers or identify scapegoats once victims have suffered. 7 New York City’s Obligations to Comply with CERD CERD makes clear that both national and local government actors are required to comply with its terms. Article 2 of CERD states that “Each State Party undertakes to engage in no act or practice of racial discrimination . . . and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation.” The article goes on to say that “each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists.” 19 Article 4 declares that “[States] [s]hall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.”20 States parties to CERD have thus committed not only national governments, but also local actors to actively uphold and enforce CERD provisions. In General Comment 13, the CERD Committee elaborates its notion that national and local actors are bound by the treaty: “In accordance with [article 2(1) of CERD], States parties have undertaken that all public authorities and public institutions, national and local, will not engage in any practice of racial discrimination.”21 Moreover, upon ratifying the provisions of CERD, the United States explicitly committed itself to acting on both a national and local level to end discrimination. In its reservations and understandings submitted to the CERD Committee upon ratification in 1994, the United States explicitly agreed that federal, state, and local actors are obliged to implement CERD to the extent to which their respective jurisd...
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