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.