The Federal employment legislation has simply not been sufficient to remedy the pervasive discrimination in employment which women face today.

It also becomes clear, in light of recent court decisions and enrollment statistics, that girls and women, in spite of Title IX of the 1964 Civil Rights Act (as amended), do not have an equal opportunity for education. On close examination, it becomes apparent that Title IX has had little if any impact

at all.

Other agencies of the Federal government have followed the courts' lead in the matter of sex discrimination. For example, a male-only scholarship fund

was granted tax-exempt status by the Internal Revenue Service, which based its ruling on their perception that Federal court rulings had not established that discrimination on the basis of sex is not contrary to public policy.

Without

The effect of this is that equality of educational opportunity is not now and cannot be expected to become a reality without the Equal Rights Amendment. Of all of the areas of discrimination, education is the most critical. the fullest range of opportunity, individuals cannot expect to maximize or even approximate their potential earning capacity. There can be no doubt that one's

earning capacity is the critical variable in obtaining credit, housing, and maximum Social Security benefits. Thus, until equality of educational opportunity becomes a principle which does not vary by sex, equality in these other major areas will be severely depressed.

The piecemeal, patchwork maze of statutory restrictions, all extremely limited and complex, has not been sufficient in practice to end sex discrimination. Inadequate governmental regulations and poor enforcement of existing laws, especially when combined with conflicting court opinions, lead to one inescapable the Equal Rights Amendment is clearly needed to establish a national policy against sex discrimination.

conclusion

-

B.

The treatment of sex under the Equal Protection Clause is according

to the whim of the court.

Beginning in 1873, in case after case, women have been denied Constitutional rights as fundamental as voting and as critical as engaging in the profession of

their choice.

Early decisions were clear in their findings that the equal protection clause did not apply to women. Recent cases have moved towards limited inclusion of protection against sex discrimination under the 14th and 5th amendments. However,

the standard of review in sex discrimination cases and the lack of a consistent

standard upon which to judge such cases has led to confusion among the courts and real trepidation among those of us who have fought so hard for Constitutional equality.

The year that the Equal Rights Amendment was first introduced in many states, the Supreme Court held that "Classifications based on sex.

are inherently

suspect and must. be subjected to close judicial scrutiny." (Frontiero v. Richardson, 411 U.S. 677, 93 S.C. 1764, 36 L. Ed. 2d 583 (1973)) Four justices

concurred in this decision, but others cautioned:

There is.

reason for deferring a general cate-
gorizing of sex classifications as invoking the
strictest test of judicial scrutiny. The Equal
Rights Amendment, which if adopted will resolve
the substance of this precise question, has been
approved by the Congress and submitted for rati-
fication by the States. If this Amendment is duly
adopted, it will represent the will of the people
accomplished in the manner prescribed by the Con-
stitution."

The precedent of Frontiero has not been followed by the courts. Never again
has the Supreme Court come close to calling a sex discriminatory law "inherently
suspect." Never again has the Supreme Court subjected a sex discriminatory law
to "close judicial scrutiny."

Rather, the Supreme Court has moved further and further away from the concept of equal protection in sex discrimination cases, until finally, last year in a split decision, without opinion, the Court let stand a "separate but unequal" ruling. By endorsing the opinion of the Third Circuit Federal Court of Appeals which upheld the constitutionality of certain Philadelphia public schools that are sex segregated in Vorchheimer v. School District of Philadelphia (532 F. 2d 880, 3rd Cir. 1976), the Supreme Court reverted to the days of Plessy v. Ferguson (163 U.S. 537 1896). Much of the same strained rationale for sex segregation in Vorchheimer could be inserted appropriately in the Plessy case. The dissenting judge in Vorchheimer substituted sex for race in the Plessy

decision:

The object of the (14th) Amendment was
undoubtedly to enforce the.

equality

of the two (sexes) before the law, but in
the nature of things it could not have
been intended to abolish distinctions based
upon (sex), or to enforce social, as dis-
tinguished from political equality, or a
commingling of the two (sexes) upon terms
unsatisfactory to either. Laws permitting,
and even requiring, their separation in
places where they are liable to be brought
into contact with each other do not neces-
sarily imply the inferiority of either (sex)
to the other, and have been generally if not
universally, recognized as within the compe-
tency of the state legislatures in the exer-
cise of their police power. The most common
instance of this is connected with the estab-
lishment of separate schools for (male) and
(female) children, which has been held to be
a valid exercise of the legislative power
even by courts in States where the political
rights of (women) have been longest and most
earnestly enforced.

Are we to return to the days when "special" treatment of one class of Americans is deemed not only Constitutional but appropriate? The Supreme Court leaves no other possible interpretation from its holding in Vorchheimer.

The implications for further litigation under the Fourteenth Amendment in order to obtain equal protection for women are dire. Who of us would feel wise advising a woman to litigate her case of sex discrimination knowing the court

in Vorchheimer did not even require proof of a "rational basis" for sex-segregating public schools? What hope is there for a finding by the Supreme Court that sex discrimination is a violation of the Equal Protection Clause of the Fourteenth or Fifth Amendments, when they have just endorsed an opinion on sex discrimination analogous to one on race that denied blacks equal protection under the Fourteenth Amendment for 58 years?

VII. Support for the ERA Extension

Over 125 pro-ERA organizations, representing various women's, religious, civil rights, labor, and political groups, support extension of the March, 1979, deadline for ratification of the ERA (a partial list of organizations supporting ERA Extension is attached).

The drive for the ERA Extension proposal has, once again, brought a national focus to the ERA and helps to destroy the myth that the ERA is a "states' rights" issue. The ERA is, clearly, a national issue. The ERA is a Federal amendment prohibiting discrimination by Federal as well as by state governments.

What will happen if three states do not ratify by March 22, 1979, or if the deadline is not extended? Will the debate for Constitutional equality for women stop? Of course not. The question is just under what conditions will that debate continue. This decision is the responsibility of Congress.

Will the debate be continued by forcing the proponents to begin again 55 years of work and thus endangering the recent gains for women's equality by sending a false message to the courts? Or will the debate over the current proposed ERA not be terminated prematurely by an arbitrary deadline and allowed to continue with no such risk incurred?

One of the major effects of the ERA will be the shifting of the burden for elimination of sex discrimination to those who may discriminate

government.

the

During the pendancy of the ERA, many legislatures have recognized their burden to review their laws and pending legislation and to eliminate sex dis

crimination where it exists.

It is inevitable, should the time for ratification expire without the addition of the ERA to the Constitution, that the incentive these legislatures have to start or to continue efforts to end sex discrimination would be removed.

Recent studies have shown that there are over 1800 state laws that do dis

criminate on the basis of sex. It is an unconscionable burden to expect those who are the victims of discrimination to challenge every law and to monitor every existing or proposed piece of legislation that discriminates.

Is this the signal that Congress wishes to send to the states? Is this the burden Congress wishes to place on American women?

The overwhelming majority of this Congress supports the Equal Rights Amendment. The majority of the American people support the Equal Rights Amendment. Surely this Congress will not close the door on Constitutional equality for women in this century.