Reverse-Discrimination and DEI Now Part of NY State Constitution as Proposition 1 Passes
The Equal Protection Project fought the good fight, but always knew it was an uphill battle. Misleading marketing of the amendment by the Democrat and leftist-NGO machinery in a deep blue state using the Trojan Horse of protecting abortion and misleading ballot language made passage all but certain.
Hey, at least we tried.
The Equal Protection Project (EqualProtect.org) was the first to sound the alarm about Part B of Proposition 1 in NY State, the misleadingly-named Equal Rights Amendment. Under the guise of protecting abortion in NY State — which was not threatened — the Democrat legislature added not only a wide swath of new protected categories such as ‘gender expression’ giving rise to concerns about parents’ rights and girls sports (Part A), but also a completely new Part B that embedded core concepts of reverse-discrimination and Diversity, Equity, and Inclusion into the constitution.
EPP announced its opposition in mid-April 2024, Equal Protection Project Opposes Proposed DEI Amendment to the NY State Constitution:
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….
Accordingly, the Equal Protection Project opposes this ballot initiative.
Our voice was recognized by The Wall Street Journal Editorial Board, which joined the issue:
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.”
Kemberlee and I wrote an Op-Ed for the NY Post:
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 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.
EPP also co-organized a press event on the steps of NY City Hall to get media attention to the issue:
We received a lot of media coverage.
But we always knew it was an uphill battle.
Misleading marketing of the amendment by the Democrat and leftist-NGO machinery in a deep blue state using the Trojan Horse of protecting abortion and misleading ballot language made passage all but certain.
Proposition 1 passed with 56.61% in favor, according to the NY State Board of Elections website.
So reverse-discrimination and DEI are now embedded in the NY State Constitution, just another blow to the rule of law in blue America.
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Comments
I’ll bet in a few years a lot of women are going to regret their vote for this as women’s sports at all levels become a laughingstock full of 2nd rate males.
And reading the proposition, I’m wondering which emanation or penumbra brings about protection for abortion up to the moment of birth- if not after. That’s what it was sold as.
That’s not an emanation or penumbra, it’s explicitly in the new language that has been added to the state constitution.
You haven’t lost many Professor, you definitely fought the good fight
I see NY losing tons more population as it becomes unlivable
I was born in New York State and have lived here all my life. I HATE the idea of being chased out by lunatics. But I’m not sure how much longer I can stay.
Get out while you can still get a good return on your property. Take the cost of a 2 bedroom in NYC, and get yourself a McMansion in Tx or Fl and have money left over.
Live safe, and sane forevermore.
You are assuming that Irv lives in NYC whereas he stated that he was born in NYS and lived there all his life. There are many sane people who live outside of NYC and don’t have grossly overpriced real estate.
However your point is valid in terms of getting out while the getting is good and not after a drastic decline in the housing market. I left NYS (not NYC) in the 70s and was able to afford the move and live in a sane state.
I was chased out by lunatics. Also the cold and the dark.
But they all felt great that put their thumb in the eye of people in other states who have restricted abortion.
And since its all about their feelz, they can just pretend not to notice the racism and bigotry they have just embedded in their constitution.
Once the red and the blue split as they inevitably will, NY can slaughter all the babies they want, out to 89 weeks of pregnancy, even.
Thank you for Professor Jacobson and team at the Equal Protection Project for fighting this racist lunacy.
It’s becoming abundantly clear that certain irreparably “blue” states such as California, Illinois, New York, Massachusetts (where not a single county voted for President Trump), Hawaii, Oregon, Washington, et al., are beyond repair and redemption and are fairly characterized as failed states and political lost causes.
Going forward, conservatives should allocate their resources and battles accordingly. I sympathize with the citizens residing in the aforementioned states who reject the vile Dhimmi-crats’ lawless, racist and corrosive conceits. But, at the end of the day, sad as it is to concede, it’s nearly impossible to fight against an entrenched Dhimmi-crat political machine when the vast majority of the state population supports these measures, however ill-conceived, inequitable and destructive they are.
The reverse discrimination aspect of the measure seems most ripe for legal attack, though, and, absolutely should be challenged by a plaintiff in federal court.
I would hope that would be the case.
Article VI, para 2:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof…shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
I don’t see how the amendment can be challenged in federal court. It’s up to each state what language it puts in its constitution, and as far as I know nothing in the US constitution or in federal legislation prohibits this language from being inserted.
All it says is that this section can’t be used to challenge discriminatory programs. Even if Prof J is correct that it would also apply to the rest of the state constitution and state legislation, it still wouldn’t override the US constitution and federal legislation. So the only discriminatory programs that would now be protected would be those that don’t violate federal law and can only be challenged under state law. That’s not something a federal court can override.
Since when has that ever stopped the left from finding a reason and more importantly finding a Hawaiian federal judge to side with them? 🤔
Technically correct, but can you give an example of a state reverse discrimination program that *doesn’t* facially violate various federal antidiscrimination laws (especially in the education context)? I don’t see any.
(The Biden admin chose to simply ignore these clear violations — see how OCR refused to address hundreds of Mark Perry complaints of blatant Title VI, VII, IX violations by schools because he couldn’t show that *he* was injured (i.e., OCR began applying a “standing” requirement that has never been part of the OCR complaint process). Methinks PDT 2.0 admin is gonna have a different interpretation.)
Additionally, the federal courts (including SCOTUS in SFFA) have decided reverse discrimination cases on statutory bases, and thus didn’t get to the overriding 14th Amendment issue. A challenge to this NY Constitutional provision under the 14th amendment would to seem to be in the cards, as I don’t see any state RD programs that don’t run afoul of it.
Look, this new amendment obviously toughens the state’s antidiscrimination laws beyond what they were before. Therefore there must be cases that could not have been brought before this passed, but can be brought now. And all Part B says is that if those cases are intended to fix old discrimination, then those cases can’t be brought, just as they couldn’t be brought before.
Even under Prof J’s interpretation, we’d have to be talking only about cases that can only be brought under state law and not under federal law.
The NY amendment can be challenged in federal court since the amendment is in violation of 14A of the US constitution. See the Shuette v coalition to defend affirmative action.
https://www.oyez.org/cases/2013/12-682
A 7-2 decision with kennedy, roberts, scalia, breyer, alito , thomas,
Sotomayor and ginsberg in dissent. Kagan recused.
That case is where the Michigan voters passed a state constitutional amendment to ban discrimination in unveristiy admissions.
No, it isn’t in violation of the 14th amendment. It’s irrelevant to the 14th amendment. The 14th continues in full force, and any time NY State does something that violates it it can be sued, just as before. But there is nothing unconstitutional about states putting random text in their constitutions.
Milhouse – I typically dont disagree with you. On this case, Yes NY can leave the amendment in place. However a person discriminated against based on the NY amendment will be able to challenged it successfully on 14A grounds. Maybe not successfully in the CA2 which is where NY is, but in the SC if excepting cert.
So, you’re saying authors of the Constitution included a paragraph that is unenforceable, without effect, and is entirely without purpose? Or are you saying it doesn’t say what it plainly says, that a State’s constitutional provision or law that conflicts with the US Constitution has no standing (effectively doesn’t exist)?
I am saying neither of those things. Go back and read what I wrote.
How about the “equal protection” clause?
Sorry. This was in reply to DaveGinOly supporting your point.
Even in the land of the lost (California), there are glimmers of hope. The Dems have an iron grip on power and the California Republican Party (if it still exists) is surely among the most useless organizations on earth. But look at the trend for Trump support:
2016: 31%
2020: 34%
2024: 40%
Ten more counties voted for the Don than four years ago. Ultra-left DA’s were recalled in LA, Oakland, and (earlier) San Francisco. The most out-there leftist ballot measures went down to defeat. It is a long way from victory but it is not nothing. Those of us who for various reasons are not able to pull up stakes and move to someplace sane have no option but to keep fighting the good fight. “For surely there is an end; and thine expectation shall not be cut off.” (Proverbs 23:18)
The LA DA was not recalled. His term will expire on the first Monday of December, and he was not reelected.
The ultimate recall 😂
Thanks for the correction. Cabrón survived several recall attempts and at last has just been voted out.
NY state is deep blue. The days when “upstate except for the cities votes Republican” are over. Most of upstate elected Dem congresspeople.
We in Westchester are the exception, (yay!) We reelected Mike Lawler over Mondaire Jones, who used to be in another district I think. But only the Adirondacks, and the western end near Buffalo, and Suffolk County on the end of Long Island, are red. The rest of the state is blue, and it’s not a good thing.
Jones was in your district. You guys elected him 4 years ago. then 2 years ago he got a hankering for a seat in Brooklyn, that eventually went to Dan Goldman. This year he decided to come back and recontest his old seat; thankfully you didn’t repeat the mistake, and sent him packing.
Well I hope courts read literally “Nothing in this section shall prevent (DEI stuff).:” But other things in the state constitution can still prevent reverse discrimination.
I hope that’s how courts read it, what it actually says, not as a hint to start DEI exceptions.
New Blue Math: Wrong + Wrong = Right Not even separate but equal.
Intend to prevent discrimination when you challenge it.
You can’t pass an unconstitutional state constitutional amendment. This is on a collision course
Yes, but this amendment isn’t unconstitutional. Programs that it would excuse from challenge under state law can still be challenged under federal law. And it seems to me they can even still be challenged under state law, unless they don’t fall foul of anything else in the state constitution, and the additional protections of this new amendment are the only grounds for challenge.
Time to avoid any business with New Dork. I stopped when they said they had no used for right wing money.
Does NY State even consider itself part of the United States of America at this point?
Yes, it does. It’s in compliance with the whole US constitution and all US laws, except the second amendment, which it thinks it can get away with violating, at least for a few years. After all, it got away with it for about a century before, so it figures it’s got a good chance of doing so now. And so far it seems it’s right; the supreme court has been reluctant to call it to heel, and the lower federal courts seem to treat the 2nd amendment as a 2nd class right.
Justice Millhouse, You strike me as some on the ADHD spectrum who is unable to understand normal human interactions where 99.9% of normal people can understand what is being said is taking the piss or see rhetorical questions without much an issue.
“Racial Discrimination now part…”
There’s nothing “reverse” about this.
Yes, discrimination is discrimination. There’s no one direction in which it’s “supposed” to go.
Hopefully, the future Supreme Court case will be written by Thomas.
Here’s a more optimistic take: The language says “Nothing in this section shall invalidate or prevent…”. It seems to me that the next time someone challenges state discrimination that would have been illegal before this new section passed, they can argue that it’s only this section that doesn’t prevent it, but the previous anti-discrimination language in the state constitution, as well as in state legislation, is still in full force, and does prevent it.
Also, of course, the protections against government discrimination in the US constitution and in federal legislation are unaffected by this.
how soon before they build a wall
to keep people in ….
same with CA.
Can’t the Feds sue to get this amendment declared unconstitutional as it incorporates racism in the state constitution?