Voters in California and in possibly four other states will face measures such as the so-called "California Civil Rights Initiative" (CCRI) on the November 1996 ballot. CCRI and the other initiatives and legislation purport to prohibit discrimination and preferential treatment. But in fact, they will ban affirmative action programs for women and minorities - programs which remove barriers to women and minorities in employment, education and contracting, and increase their recruitment, retention, and training opportunities.
Not only would these initiatives and legislation prohibit affirmative action - they would also explicitly allow discrimination against women and girls. The language of the CCRI and similar measures contain a clause that would gut sex discrimination law, leaving just a bare-bones "skeleton" of the law without the guts that make enforcement a reality.
For this reason Clause "C" of the California measure, which appears in other proposed initiatives and legislation, is also known as the "skeleton clause" (see box for complete text). Clause "C" allows employers and educational institutions to discriminate on the basis of sex if they can prove it is "reasonably necessary to the normal operation" of public education, public employment, or public contracting. If passed, this provision would write into the California constitution the lowest standard of scrutiny for sex discrimination - effectively legalizing sex discrimination.
Under this low standard of judicial review - virtually any reason given for sex discrimination can be judged "reasonable," such as size of uniforms, non-availability of women's bathrooms, or limited funds. Currently, California holds gender discrimination to the highest judicial scrutiny - "strict scrutiny" - which means that in California, any gender classification is immediately suspect as discriminatory unless a compelling state interest can be shown.
Petitions to place misleading "civil rights" initiatives with wording similar to CCRI on the 1996 ballot are being circulated in four other states: Colorado, Florida, Oregon, and Washington. In addition to the five state initiatives, similar deceptive bills have been introduced into the legislatures of at least 17 states.
In the U.S. Congress, Rep. Charles Canady (R-FL) and Senator Bob Dole (R-KS) have introduced similar legislation which if passed would overturn nearly every Supreme Court decision authorizing the use of affirmative action to remedy past discrimination. A bill introduced by Jesse Helms (R-NC) and Lauch Faircloth (R-NC) would expand the "skeleton clause" to allow sex discrimination in the provision of federal benefits such as student loans.
Leading constitutional law scholar Erwin Chemerinsky of the University of Southern California Law Center calls Clause "C" the "No Women Need Apply" clause. "This clause expressly allows discrimination against women and girls in areas where it has never been legally permitted in California," Chemerinsky said. Laurie Levinson, a prominent legal scholar and Associate Dean at the Loyola School of Law, said the clause "will eviscerate the California constitution's current protection against gender discrimination."
"With state constitutions amended to prohibit affirmative action and allow sex discrimination, we could return to a day when women public school teachers could be fired because they were pregnant," said Smeal. "We could return to a time when women were routinely excluded from the police academy because of their shorter height."
With the passage of the "skeleton clause," public school administrators and athletic directors could claim that it is "reasonably necessary" to provide boys' teams with more funding and staff because boys are "more interested" in sports. The clause would make it much harder for women to win sex discrimination in employment lawsuits.
To mobilize women in 1996, the Feminist Majority is spearheading a massive voter education and registration drive aimed at young women voters. "Freedom Summer '96," (see separate article). In addition, Feminist Majority president Eleanor Smeal is conducting a 26-campus affirmative action speaking tour in California this spring, including stops at Stanford, Mills College, California State University - Chico, Whittier Law School, University of California - San Diego, and San Diego State University.
