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Another Program that Would be Struck Down Under The ERA:

It so happens that the New York Times recently published an article about an education program that would almost certainly be invalidated by the courts were the Equal Rights Amendment in force:

[S]ome minority students, the black boys at [the] Brookside [School in Westchester County, New York], are set apart, in a way, by a special mentoring program that pairs them with black teachers for one-on-one guidance outside class, extra homework help, and cultural activities during the school day.....

.... school officials said they were not singling out black boys, but after a district analysis of high school students' grade-point averages revealed that black boys were performing far worse than any other group, they decided to act. In contrast, these officials said, the performance of black girls compared favorably with other students and did not warrant the same concern.

The district calls it a "moral imperative," and administrators and teachers say their top priority is improving the academic performance of black male students, who account for less than 10 percent of the district's 4,200 students but disproportionately and consistently rank at the bottom in grades and test scores. The programs are voluntary, school officials said, and some students choose not to take part.

It is far from certain that this program would survive judicial review even under current Equal Protection Clause doctrine. As the NYT article points out, there are lawsuits underway on this issue. Under the ERA, however, the demise of the program would be virtually certain. Even if it is true that, on average, black male students have more severe education problems than whites or black females, under the ERA that would almost certainly not be enough to justify a program that categorically excludes the latter groups. The same is true of claims, mentioned in the article, that black male students need a separate program because they have "special" needs that are not shared by other groups. Again, even if true on average, this claim would not be enough to justify the complete exclusion of other groups under the Equal Rights Amendment, which categorically forbids virtually any legal rule that assigns rights on the basis of gender.

I take no position on the educational efficacy of this program. Perhaps it really will increase the academic achievement of African-American male students, and perhaps not. Either way, however, it and other similar programs would not be permitted under the ERA, and that is something to think about in deciding whether the ERA should be enacted or not.

Joe Bingham (mail):
We were just discussing in my I/O psych class tonight how business has moved beyond this illusion that men and women are the same as men. Sad that the government is behind. Funny, they're ususally so on top of things.

(Before you flame, please note that I said "the same," not "equally important or valuable.")
4.10.2007 1:43am
Joe Bingham (mail):
I am creating an account right now so I can get rid of comments where my poor proofreading embarrasses me like that. Ouch.
4.10.2007 1:44am
TheGoodReverend (mail) (www):
I think you hit the nail on the head with the reference to current Equal Protection Clause doctrine. If this program is going to receive strict scrutiny under the Equal Protection Clause (because of its racial classification), does it really matter whether it would receive strict scrutiny under the ERA (because of its gender classification)? The requirements, it seems, would be exactly the same, so it either passes both or fails both tests.
4.10.2007 8:34am
Sk (mail):
Your argument is self-defeating, and clearly wrong. If mere clear statements of law were enough to invalidate that program, it would have been invalidated forty years ago by the Civil Rights Act. The Civil Rights Act demands equal treatment between races, which this program clearly violates (it is a program aimed at minorities, which excludes non-minorities). Yet it, and programs like it, has existed for the last forty years in spite of the clear wording of CRA. You underestimate the creative hypocricy of the judiciary and the chattering classes. ERA will mean whatever judges and academics want it to mean-maybe they'll accept a boys program, maybe they won't. Don't let clear language and logic cloud your understanding of how the world works.

Sk
4.10.2007 8:36am
PersonFromPorlock:
I'd really enjoy seeing the ERA resubmitted with the word "sex" in Section One changed to "group." It'd work just as well for women but very badly for Liberals. Oh, my, the wailing and gnashing of teeth!
4.10.2007 9:14am
Kevin P. (mail):
Sk:

Your argument is self-defeating, and clearly wrong. If mere clear statements of law were enough to invalidate that program, it would have been invalidated forty years ago by the Civil Rights Act. The Civil Rights Act demands equal treatment between races, which this program clearly violates (it is a program aimed at minorities, which excludes non-minorities). Yet it, and programs like it, has existed for the last forty years in spite of the clear wording of CRA. You underestimate the creative hypocricy of the judiciary and the chattering classes. ERA will mean whatever judges and academics want it to mean-maybe they'll accept a boys program, maybe they won't. Don't let clear language and logic cloud your understanding of how the world works.


Maybe I am cynical but I agree with SK.
4.10.2007 10:09am
John (mail):
What seems to be going on in these comments, and in others from previous posts, is (1) a recognition that in some areas the government should require that men and women be treated the same and in others the government should not, and (2) though we might have statutes or a constitution that requires that men and women are treated the same in all circumstances the courts will cleverly find ways around that requirement, just as the courts have done so frequently in other areas.

Rather than leave the exception-making to the courts, I'd rather see it handled democratically, with legislative action dealing with things on a case-be-case basis.
4.10.2007 10:26am
AK (mail):
Ilya:

The assumption here and in all these posts is that the courts would apply the ERA as written, and would forbid discrimination based on sex across the board, regardless of whether the discrimination worked in favor of men or women.

How long have you been in the city, Country Mouse?
4.10.2007 10:35am
Martin Grant (mail):
... school officials said they were not singling out black boys, but after a district analysis of high school students' grade-point averages revealed that black boys were performing far worse than any other group,

Why single them out because their black boys? Why not single them out because of their actual GPAs? Then the program can continue without any judicial interference.
4.10.2007 10:45am
Martin Grant (mail):
Hmmm, I should proof read. "their" = "they're"
4.10.2007 10:46am
John Jenkins (mail):
It is far from certain that this program would survive judicial review even under current Equal Protection Clause doctrine.

That is almost certainly true, but it assumes that the Court will continue to apply current doctrine consistently. We know that the various levels of scrutiny (rational basis, rational basis plus, intermediate, strict scrutiny) are not always applied consistently now. We also know that intellectual consistency is not a hallmark of Supreme Court jurisprudence. There is no reason the current Court or a future Court with a different alignment of justices would not simply interpret a revived ERA favorably to their desired outcome in those cases that come before them. That is exactly what the Court did in the affirmative action cases (affirmative action being racial discrimination and thus clearly forbidden by the text of the Fourteenth Amendment, irrespective of its merits as a policy), and there's no reason to believe this will be different.

The biggest danger is that the state will begin to use the ERA as a hammer to *mandate* equality (e.g. Title IX writ large) in the private sector, the same way the state used the Fourteenth Amendment as a hammer to regulate the private sector through an expansive interpretation of the commerce clause.
4.10.2007 10:53am
Non-Cited Author:
What's wrong with trying to help a group that has consistently underperformed academically? The ERA was not created to prevent such help, and to suggest that it should be strictly applied here is to be insensitive to the problems that these boys face, and the realities of problem solving.

Let's not forget that the program did not create the categorical trend (in fact, it's trying to solve it). The true equal protection concern here is not the program itself, but the social economic system that likely placed these boys in this category in the first place.

Otherwise, anytime a categorical trend develops within specific group, government would be paralyzed in helping that group without worrying about Equal Protection concerns. If Government had to provide "special help" to all students (regardless if those students need the help as much) to avoid Equal Protection concerns, then what an inefficient system that would be.
4.10.2007 10:59am
John Kunze:
It is offensive if the program categorically excludes girls and non-blacks. The program should be reconsituted to select candidates on some other basis. This should be done regardless of how the courts come down on this.

It should be easy to target those of any race or sex who fall behind the averages and would benefit from help.
4.10.2007 11:25am
Steve:
Just as the 14th Amendment is not read to prohibit differential treatment which seeks to destroy the vestiges of slavery, so too should the ERA not be read to prohibit differential treatment seeking to destroy the vestiges of sex discrimination. As for what will happen in practice, the federal judiciary is heavily conservative, but that doesn't mean there will be a reactionary undoing of the status quo.

In any event, when you predict that the ERA will likely cause courts to strike down unisex bathrooms, that seriously calls into question the credibility of your other predictions.
4.10.2007 11:50am
Observer (mail):
I have to agree with George Will, who wrote (a week or so ago) that the very purpose of the ERA would be to empower courts to adopt rules and programs that liberal Democrats lack the political support to enact into law.

For example, the feminists have tried and failed for years to get legislation requiring equal pay for "comparable" jobs. Is is too hard to think that some judge would interpret the ERA to outlaw a pay classification system that pays men without college degrees (truck drivers, construction workers) more than women with college degrees (teachers, nurses)? Or outlaw boys only sports teams? Or boys only boy scouts?

The problem is that the amendment is, in legal terms, vague. That makes it a template for whatever policies or prejudices a judge wants to impose on it. If the judge believes, as many feminists do, that sex differences are all artificial and socially constructed, then he will come to one conclusion. If he believes that there are biological differences between the sexes that justify differential treatment in some contexts, then he will come to another conclusion. Remind me again why we should let judges make these determinations?
4.10.2007 12:07pm
Redman:
I agree with many Commenters on here, and disagree with those who think the ERA would be the death knell for many liberal inspired programs.

There are already enough laws on the books (not to mention the Equal Protection Clause) to shoot down every one of these programs, but (largely) liberal courts have refused to kill them. What difference would ANOTHER law make?

These programs are not meant to help anybody so much as they are meant to buy votes. They are utterly unsustainable on any basis of honest legal reasoning. So long as one group needs those votes to survive at the ballot box, the judiciary which sprang from the politicians thus elected will continue to look the other way when confronted with the illegality of these programs.

Its not law, its politics.
4.10.2007 12:26pm
Daniel950 (mail):

They are utterly unsustainable on any basis of honest legal reasoning. So long as one group needs those votes to survive at the ballot box, the judiciary which sprang from the politicians thus elected will continue to look the other way when confronted with the illegality of these programs.... Its not law, its politics.


Illegal programs sustained by unelected judges who have jobs for life?

I've long believed that the judicial system is broken. Now it's become obvious that a constitutional amendment won't make a darn bit of difference to the way things are done - it's "just another law."

If you want a real change in the way things are done, don't write "just another law," but attack the real problem - the courts.
4.10.2007 1:17pm
Ilya Somin:
Your argument is self-defeating, and clearly wrong. If mere clear statements of law were enough to invalidate that program, it would have been invalidated forty years ago by the Civil Rights Act.

The Civil Rights Acts were interpreted for many years by a largely liberal and nontextualist judiciary. Today's judiciary is far more conservative and also more textualist. There is little reason to believe that they would act the same way as courts in the 1960s and 70s did, and much reason to expect the contrary.
4.10.2007 3:16pm
whit:
"If he believes that there are biological differences between the sexes that justify differential treatment in some contexts, then he will come to another conclusion. Remind me again why we should let judges make these determinations?"

the left loves to think they are the ones that rely on science, and the right doesn't. in the area of gender differences, this is clearly NOT the case. it is correct that for DECADES 'social scientists' have continued to try to create the myth that all gender differences in behavior etc. are socially constructed. nearly all the science, and a million points of data from our personal lives show this clearly to be a lie.

it is not that biological differences (necessarily) justify different treatment. it is that, in many circumstances, they explain different results/representation.

one example. men are, on average, less risk averse. this is seen in career choices, among other things. generally speaking, riskier jobs pay more. because: there's MORE RISK.

it doesnt follow that if womens' chosen professions pay less, on average, that its discrimination against women. it could just as easily be explained that women tend to choose less risky (physically and otherwise) careers.

men tend to be more aggressive, value different things than women, etc. which is naturally reflected in the data.
4.11.2007 1:29pm