MichiganÕs Mini-ERA
By Mary Pollock
Michigan NOW Legislative
Vice-President
Proposal
06-02 adopted by voters last fall, the new Article I, Section 26 of MichiganÕs
Constitution, amended the State of Michigan Constitution to prohibit the use of
race, sex, color, ethnicity, or national origin to discriminate or give
preference in the operation of public employment, education or contracting.
Article
1, Section 2 of the 1963 Michigan Constitution assures equal protection
of the laws on the basis of religion, race, color or national origin, but sex
was intentionally omitted by the framers.
Little discussed
during the Proposal 2 campaign was the fact that the proposed amendment would
constitutionalize, for the first time in Michigan history, a ban on sex
discrimination or its opposite twin, preference, thus creating a Michigan
mini-Equal Rights Amendment. In
the areas of government employment, education, or contracting, gender-based
discrimination and preferences are now proscribed.
There
may be ways to use the amendment to advance equality of the sexes. Male preference, like discrimination
against women, may now be attacked as a constitutional violation in public
employment, education, and contracting,
Single-Sex
Education Programs - In the summer of 2006, amendments to the Michigan Civil Rights Act
and the Michigan School Code ended MichiganÕs centuries-old ban on sex
segregation in Michigan public schools.
Due to recent changes in federal Title IX Regulations, sex segregation
in federally funded education programs is now permitted rather than banned. The top of the ticket Republican
candidates in the 2006 campaign based their opposition to Proposal 06-02, in
part, on their fear that the amendment would trump these laws and prohibit
single-sex public schools in Michigan, a policy that they favored. The new Michigan Constitutional amendment
might be used to challenge any Michigan public school engaging in education
practices that discriminate or give preference on the basis of sex that would
otherwise be permitted under state or federal law.
The
fact that our Michigan statutes permit sex segregation in pubic schools only if
participation is voluntary and there are substantially equal programs for the
other gender and co-ed programs does not excuse using sex as a factor to divide
students into segregated education programs. Inevitably, separate programs become unequal and therefore discriminatory
or preferential. Sex, like race,
is now a suspect classification in MichiganÕs Constitution and sex segregation
in schools is likewise challengable.
Safe
Harbor - Paragraph 5 of the
amendment was intended as a safe harbor for public schools that want to engage in
sex discrimination or preference by sex-segregating students. That section provides:
(5) Nothing in
this section shall be interpreted as prohibiting bona fide qualifications based
on sex that are reasonably necessary to the normal operation of public
employment, public education, or public contracting.
This
language is adapted from employment discrimination law. The courts have always narrowly
construed it to allow a very limited number of sex-designated jobs such as a
female for an actress job.
Additionally, the concept of a bona fide qualification based on sex has never
existed in the education or contracting context so it is yet unknown how it
will be interpreted by Michigan courts.
But
consider this: At least until
Michigan changed its laws in the summer of 2006 to permit sex-segregated public
education, the normal operation of public schools by past custom and practice
since the inception of universal public education is having both genders
learning together in co-ed settings.
Exceptions for privacy such as separate gender bathrooms and locker
rooms are examples of reasonably necessary sex segregation practices normal to
the operation of public education.
But the use of gender to discriminate or give preference in school,
class, and program assignments may have to end if this paragraph is given an
honest interpretation.
Government
Employment Policies - Government employment policies, like private sector ones, were developed
for male heads of households with a non-working wife to care for the home, children
and the disabled. Could the new
amendment be used to argue for gender-neutral employment policies where family
and medical leave policies accommodate everyone in the workplace and not give
preference to men? Could we use
this amendment to attack sex-based wage disparities in public employment
settings? We should be looking for
opportunities to use this new law to advance womenÕs employment, education and
contracting opportunities by ending male preference.
11-11-07