NY Equal Rights Amendment Ballot Initiative “sets up … racial retribution and favoritism under the guise of ‘dismantling discrimination’”

NY Equal Rights Amendment Ballot Initiative “sets up … racial retribution and favoritism under the guise of ‘dismantling discrimination’”

Since April 2024, I have been sounding the alarm about Proposition 1 in New York, the so-called “Equal Rights Amendment.”

When I first wrote about the ERA last April it was the subject of an ongoing court challenge because the Democrats in the legislature didn’t follow the procedure for constitutional amendments set forth in the New York Constitution. The ERA was a rushed reaction to the Dobbs abortion decision, supposedly to protect abortion rights in New York (which were not in any way threatened by the decision), but Democrats used that as cover to load up the constitutional amendment with a bevy of protected classes, such as gender identity. which has spurred a vigorous opposition movement based on the threat to parental rights, girls and women’s spaces, and girls sports.

But I was focused on the other sneaky measure in the proposed amendment, in a completely new paragraph B, allowing for discrimination done in the name of dismantling discrimination. In our Equal Protection Projects statement opposing the ERA, we wrote, in part:

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.

The legal challenge was successful in the trial court, but was reversed in the Appellate Division as untimely, and the NY Court of Appeals refused to take the case. So the Equal Rights Amendment will be on the ballot in November in New York. With a ‘nice’ sounding name, it may pass, but opposition is finally getting attention focuse mostly on Part A.

But it gets worse. The ballot language decided by the NY Board of Elections doesn’t even mention Part B. We filed an objection but NY BoE ignored us:

Voters are entitled to know about the sweeping changes brought about by Paragraph B of the ERA in the way in which the ballot measure is described. To not mention this reverse discrimination impact is a material omission. Accordingly, I request that the ballot language be modified as follows (changes in bold):

Adds anti-discrimination provisions to State Constitution. Covers ethnicity, national origin, age, disability, and sex, including sexual orientation, gender identity and pregnancy. Creates a right to engage in reverse-discrimination. Also covers reproductive healthcare and autonomy.

We tried to get people to pay attention to Part B, the CRT/DEI/Reverse Racism sneak attack, and finally people are noticing.

The Wall Street Journal ran an Editorial on the amendment giving a shout out to my arguments as to Part B, New York’s Dangerous Amendment:

But by enshrining these protections in the constitution, the amendment heightens the danger to other rights. If a man identifies as a woman and prefers to use a women’s locker room, bathroom, sports team, or prison facility, does the amendment guarantee his right—at the expense of women’s safety?

Will parents who don’t wish their child to “transition” from one gender to another have a right to stop it, or even be informed by a school what’s going on? Would conscience objections to transgender procedures or abortion be harder to defend? Expect lawsuits from all sides if Prop. 1 passes….

One other Prop. 1 alarm: It provides that “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.” The Legislature said this line “protects the validity of efforts to prevent or dismantle structural forms of inequality.” This sounds like a cover for programs like the slavery reparations commission the state launched this year, or other racial preferences. Cornell law professor William Jacobson warned in April that this language could “create a DEI exception to the anti-discrimination laws.”

We amplified the problem of reverse racism in our own Op-Ed in The NY Post online last night and in today’s print paper:

New York state’s Proposition One, the so-called “Equal Rights Amendment” on the ballot this Election Day, is a wolf in sheep’s clothing — one that will destroy fundamental civil rights under the guise of protecting them.

The ERA is being promoted as a way to protect abortion rights that aren’t under any threat in the Empire State, but it’s actually a veritable grab bag of leftist ideology.

If adopted, Prop One would embed racial retribution in the form of reverse racism, critical race theory and diversity, equity and inclusion principles into the state Constitution, without most voters realizing its far-reaching effects.

The Equal Protection Project, the civil rights nonprofit we run, has been sounding the alarm about the stealth provisions in the ERA since April, when we announced our opposition to the proposed amendment with a detailed analysis of the text and legal implications.

The ERA consists of two distinct provisions that will revise Section 11, Article 1 of the New York state Constitution.

Part A adds such terms as “gender identity” and “gender expression” to existing protected statuses — previously the easily understandable and long-recognized categories of race, color, creed and religion.

This has raised concerns from women’s rights advocates, parents’ groups and others, giving rise to organized opposition over the potential usurpation of parental rights, the destruction of spaces for girls and women and the decimation of girls’ sports.

Some critics even see the ballot measure as a potential backdoor to allow non-citizen and migrant voting.

The referendum’s Part B would be even more catastrophic — but because of the legalese of its text, its negative impact is not obvious to the average voter.

Worse yet, the ballot language voters will see in their polling places does not even mention Part B.

We filed a comment objecting to this ballot deception with the state Board of Elections, but were ignored.

Can you spot the three-card-monte sleight-of-hand being played in Part B?

Here’s the language: “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.”

In other words, as long as the goal is to “prevent or dismantle discrimination,” all of the status protections in Part A and elsewhere in state law — the familiar protections based on race and religion, and the new ones, too — get thrown out the window.

This embeds injustice into the state Constitution, giving carte blanche for the government to discriminate against one group under the guise of “dismantling discrimination” against another.

The Equal Protection Project has tracked what this means in practice.

We have seen how “dismantling discrimination,” particularly in higher education, almost always results in more discrimination.

So the potential fallout if Prop One passes is limitless.

Discrimination against Asian schoolchildren to create a different racial mix meant to “dismantle” racial imbalance in a school arguably would now be protected under state law — overriding the law that sustains the city’s top-tier specialized high schools.

White employees denied a promotion so that a company could achieve a different racial managerial balance would be unable to challenge that in court.

Black applicants may be passed over for a job should they be deemed to be “overrepresented” in a particular career, or Hispanics could lose out on housing if a landlord claimed a state constitutional right to “ethnic balancing” to “prevent and dismantle discrimination” in a development or building.

The ERA sets up a potential free-for-all of racial retribution and favoritism under the guise of “dismantling discrimination.”

And while New Yorkers would retain some federal constitutional protections, under this amendment the broad and sweeping protections of the state’s and city’s human rights laws would be forced to give way to this new constitutional right to discriminate.

A few critics have appreciated the implications of this under-the-radar threat, but many voters are still unaware — and could easily be snookered by Prop One’s benevolent-sounding ballot language.

Now is the time to sound the alarm and tell the public what the Board of Elections is hiding: The ERA is not about equal rights, but about racial retribution — and it has no place in our state’s Constitution.

The fight against the pernicious CRT and its progeny is never ending.

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