September 28, 2004

If 14+15, Why Not 14+19?

by PG

My private theory on why nearly every person admitted to Columbia Law School in August was female is that the admissions office belatedly realized the gender imbalance and tried to correct it at the last minute with the waiting list admits. So, for what may be the first time in my life, I am an affirmative action beneficiary, and I'm gratified to see my support for the policy finally pay off.

Even for those who think that race-based affirmative action is unconstitutional, this isn't a problem. First, as a private university Columbia is not a state actor; second, and more importantly, the 14th Amendment is not interpreted to require gender equality to the degree that it is perceived to require racial equality. Of course, the 14th says nothing about either race or gender, but the popular reading is to sort of mush the 15th Amendment into the 14th, so that if you squint hard enough, it becomes "No State shall [... blah blah... ] equal protection of the laws on account of race, color, or previous condition of servitude."

What I've been wondering about for some time is why we don't use a similar reading that would squash the 19th Amendment into the 14th as well. After all, the 15th and 19th have the exact same text, except where the former says, "on account of race, color, or previous condition of servitude," the latter says, "on account of sex." Using the same strict scrutiny for gender that we use for race could create upsets everywhere, from forcing women into Selective Service registration to making the legal recognition of same-sex unions constitutionally necessary.

Who needs the Equal Rights Amendment when we have the 14th plus the 19th?

September 28, 2004 02:01 AM | TrackBack

but they wouldn't like it like that, now would they pg????

Posted by: fatty at September 28, 2004 06:23 PM

Current 14th Amendment law might indeed render the 19th Amendment superfluous. At the time when the 19th A. came along, though, this was not the case.

Posted by: Tom T. at September 29, 2004 11:45 PM

At the time of the 15th Amendment, it certainly wasn't doing its job. It took another century or so to get some enforcement behind it.

Posted by: PG at September 30, 2004 01:42 AM

I think private universities generally aren't considered state actors, but certainly some apply federal court decisions to themselves anyway (as Rice and SMU, but not TCU, did with Hopwood) for fear that defiance could result in lost federal aid.

Posted by: PG at October 3, 2004 08:17 PM

If Columbia is in new york, the relevant question is what is the standard for gender-based discrimination under the new york constitution, and what is the test for a state action requirement, and is there any legislation that adds a standard.
Then, does columbia have any of its own enforcable policies that apply?

Posted by: arbitraryaardvark at January 4, 2005 01:10 PM
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