Equal Protection Project Opposes Proposed DEI Amendment to the NY State Constitution
The Equal Rights Amendment on the ballot in November 2024 would enshrine Diversity Equity & Inclusion into the New York State Constitution, protecting reverse discrimination and other discrimination done in the name of “dismantling discrimination.”
(Barrington, RI, April 18, 2024)
The non-profit Equal Protection Project (EqualProtect.org) is devoted to opposing racism and racial discrimination in all forms. EqualProtect.org believes there is no ‘good’ form of racism, and the remedy for racism never is more racism. EqualProtect.org has undertaken dozens of legal actions seeking to uphold the principle of equal protection of the laws.
EqualProtect.org opposes the proposed Equal Rights Amendment to the New York State Constitution because it would embed reverse-discrimination and tenets of Critical Race Theory and Diversity, Equity, and Inclusion into the NY State Constitution, damaging preexisting antidiscrimination efforts by creating a legal loophole based on the motivation for discrimination.
The NY Equal Rights Amendment currently scheduled to be on the ballot in November 2024 (subject to a pending court procedural challenge), consists of two distinct provisions amending Section 11, Article 1 of the NY State Constitution (Senate Bill S51002, capitalized text are changes from prior law, bold emphasis added):
11. A. No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, ETHNICITY, NATIONAL ORIGIN, AGE, DISABILITY, creed [or], religion, OR SEX, INCLUDING SEXUAL ORIENTATION, GENDER IDENTITY, GENDER EXPRESSION, PREGNANCY, PREGNANCY OUTCOMES, AND REPRODUCTIVE HEALTHCARE AND AUTONOMY, be subjected to any discrimination in [his or her] THEIR civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state, PURSUANT TO LAW.
B. NOTHING IN THIS SECTION SHALL INVALIDATE OR PREVENT THE ADOPTION OF ANY LAW, REGULATION, PROGRAM, OR PRACTICE THAT IS DESIGNED TO PREVENT OR DISMANTLE DISCRIMINATION ON THE BASIS OF A CHARACTERISTIC LISTED IN THIS SECTION, NOR SHALL ANY CHARACTERISTIC LISTED IN THIS SECTION BE INTERPRETED TO INTERFERE WITH, LIMIT, OR DENY THE CIVIL RIGHTS OF ANY PERSON BASED UPON ANY OTHER CHARACTERISTIC IDENTIFIED IN THIS ECTION.
Paragraph A, which expands the protected categories, has raised concerns about the usurpation of parental rights, and opposition is organizing on that basis. EPP shares those concerns, but is sounding the alarm as to the troubling language in Paragraph B, which upends current NY constitutional and legislative protections.
It is alarming that Paragraph B has not received any public attention for its possibly disastrous impact on the cause of nondiscrimination, as already embodied in the NY State Constitution (before the amendment) and numerous state and local laws. E.g. NY Human Rights Law and NYC Human Rights Law.
Under Paragraph B, discrimination becomes a NY State constitutional right provided the discrimination is “designed to prevent or dismantle discrimination.” This embeds what is commonly referred to as “reverse discrimination” into the NY State Constitution. Discrimination against certain groups in order to protect other groups would be exempt from the sweeping protections of the current constitution and Paragraph A of the Amendment. Arguably, this would mean that the NY and NYC Human Rights Laws would be preempted merely by claiming the motivation was to “dismantle discrimination.”
The exemption under Paragraph B would severely damage efforts at fighting discrimination. It would create a loophole allowing persons engaging in objectively discriminatory programs and practices to claim that the motivation was to “dismantle discrimination.” This is the language of Critical Race Theory and Diversity, Equity and Inclusion, and would create a DEI exception to the anti-discrimination laws in NY State. Such ideologies have no place in the NY Constitution, and are contrary to our tradition of protecting individuals from invidious discrimination based on immutable characteristics.
While New Yorkers still would have federal constitutional protections, the statutory and administrative protections specific to New York may be unavailable depending on which group is the target of discrimination and the motive of the person or entity discriminating. This may put the New York Constitution in conflict with existing New York laws and regulations and with federal equal protection law, which does not permit racial discrimination in order to “prevent or dismantle discrimination.” See, e.g. Students for Fair Admissions v. Harvard (U.S. Supreme Court 2023).
At best, the provisions of paragraph B of the proposed constitutional amendment have not been well thought out and were rushed through the Senate and Assembly. Just as likely, paragraph B was a very well thought out subterfuge to enshrine CRT/DEI into the state constitution. Either way, this constitutional amendment may cause lasting harm to the effort at protecting New Yorkers from racial and other forms of discrimination.
Accordingly, the Equal Protection Project opposes this ballot initiative.
William A. Jacobson is a Clinical Professor of Law at Cornell Law School, President of the Legal Insurrection Foundation and founder of its Equal Protection Project.
DONATE
Donations tax deductible
to the full extent allowed by law.
Comments
1. EVERYTHING THAT IS NOT FORBIDDEN IS MANDATORY.
2. EVERYTHING THAT IS NOT MANDATORY IS FORBIDDEN.
caps in original.
It’s plain the the normal people cannot live with the leftists any more.
Unless there is secession, there will be a second American Civil War
“Everything not compulsory is forbidden!”
The slogan of the ants, from T H White’s The Book of Merlyn.
“This may put the New York Constitution in conflict with existing New York laws and regulations and with federal equal protection law, which does not permit racial discrimination in order to “prevent or dismantle discrimination.”
Odd, how these leftists are all about the supremacy clause in the US Constitution – until they’re not…
Yeah… like they lobbied for decades for federal gun control so it would override permissive state laws, until they failed time after time and gave it up as a losing proposition. So they switched to lobbying states, counties, and even cities and towns individually, turning their previous arguments 180° to claim basically that states should have the power to opt out of federal rights. Except in the interim, almost all the red states had passed pre-emption laws saying that counties, cities, and towns can’t have more restrictive gun laws than the state itself has, and did heads explode. Now they’re lobbying to repeal pre-emption laws. It’s amazing the extent to which the left will go procedurally to screw you out of your rights any way they can.
So far they’re not proposing any legislation that would conflict with federal law. But if they ever do, they’ll find that the supremacy clause doesn’t care whether they’re all about it, partly about it, or not at all about it. Federal law overrides state constitutions, whether they like it or not.
Let them pass this and see as they pass the “discrimination to end discrimination” laws the discriminated groups (white, heterosexual men as the primary group) leave the State. New York’s Leftist will then probably try to make it illegal to leave. They want the State to be a cesspool.
Not so much individual heterosexual (and, if I may, non-vocal homosexual) white men, as it will be businesses realizing that such provisions makes hiring and firing such a burdensome task that they will move businesses out of the state.
The state is purifying itself. So far this is a bloodless (still damaging) version of the Gukurahundi in Zimbabwe. ( “the early rain which washes away the chaff before the spring rains”.(wikipedia)) They really don’t care nor wish to appreciate the dysfunction that will happen. It will be THEIR state and THEIR rules. Like California being considered a Nation-State by Newsom.
Rush said that in their new utopia they would still need some capitalism. Their model is most likely the CCP. Kindred spirits.
Clearly blacks and Muslims will back this. Do you think Jews will, or have they learned yet?
If they wish to supercede the bill of rights, then states such as NY should band together to do so.
You know, like a confederacy.
Your comment is a variation on a theme of what was passing through my mind as I saw this article. If New York goes through with this, it will start a trend among states like, say, Massachusetts and Connecticut. It will get crazy.
I doubt it will be in my lifetime – I turn 75 next week – but the country will eventually split into two or more countries. Thanks to so much interference out of DC and the communization of the nation, it is inevitable.
Within five to ten years, the debt death spiral will begin–printing more money to pay the debt will cause interest rates to rise, which will require more print, higher rates, etc. At that point, civil war will become moot.
Yeah, the provisions have not been well thought out. That is pretty much the motto of the race obsessed DEI crowd. Unfortunately, not thinking is apparently also a hallmark of voters in certain jurisdictions. Otherwise we wouldn’t have that corrupt kid sniffing reptile in the WH (assuming of course at least some of the vast, unverified, harvested mail-in ballots were legitimate).
Thank you, Mr. Jacobson and the EPP for taking on these fights. You are truly National heroes!
This Amendment if passed would be completely unconstitutional as contrary to the current judicial understanding of the Equal Protection Clause of the US Constitution
The amendment itself wouldn’t be unconstitutional. But any legislation that relied on it to violate federal civil rights laws, or the 14th amendment itself, would be immediately challenged.
In NY State, administrative voted stuff like ballot initiatives, changes to state constitution and etc. are called on the ballot what they’re called by the state.
These would be “The Free Fairness, of Being Fair for Free, so We Can Feel Better About Ourselves (and Getting those bad people is just a bonus), amendment(s). Not “The What the Hell Are You Doing, and Do You Have Any Idea How Far Sideways This Will Inevitably Go … or Is That The Point, amendment(s)”
If you ask hard enough, you can get an info sheet if you want — also prepared by the folks in the state. Where’s the actual wording of the wording? Gotta get that somewhere else.
As written, languge with loopholes you could drive a truck through.
So, for NY State, that would be S O P.
This really sickens me. But even if the legislature decided they wanted this now, they must wait until the next session of the legislature to put it on the ballot is the way I read how to amend the state constitution.
And the protections for people with disabilities is already being completely ignored just as you suggest it would be with this change. I am fighting the worst human rights fight in my life! I have a brown family targeting my Autistic/Mentally Ill daughter and they have been doing it for two years including threats to our lives for fighting back legally. She has nearly killed herself six times. I get that we can’t do a thing due to Raise the Age and we are white. I am a peaceful person who has tried to use the provisions of the hate crime laws, human rights laws, etc to protect her to be ignored. I have it all on security camera footage shown to police and they say they now have to see crimes themselves which is preposterous. Syracuse Mayor is ignoring us. I need suggestions for a lawyer warrior who can go after these people and force this city to protect people with disabilities no matter what the skin color of the perpetrators are! They also target my 85 year old mother as well.
When I say ” I get that we can’t do a thing due to Raise the Age and we are white.” I mean this is what we are being told is the reason these people have not been arrested or it. They know she is suicidal and their actions maker her that way. So they are actually promoting suicide.