I began the final round of book revisions in denial about
the fact that my manuscript needed to be reduced by 40,000 words—the equivalent
of two chapters. One editor friend advised that I would need a hatchet as well
as a scalpel: to condense the manuscript that much would require eliminating
huge chunks of text as well as line-by-line editing. In the end, the need to
cut Chapters 4 and 5 down to size forced me to do a wholesale rewrite of
each—painful, but necessary.
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| Ruth Bader Ginsburg |
The first step was to articulate the one or two central points
of each chapter. Chapter 4 was perhaps the most difficult to distill without
oversimplifying. There was a lot going on—feminists’ use of disparate impact
arguments in both Title VII and equal protection cases, the complicated
relationship between sex equality law and affirmative action, the politics and
law of veterans’ preferences, and the campaign against pregnancy
discrimination, among other topics. Several interrelated themes ran through the
chapter; I tried to focus on two strands. First, feminists did not merely
pursue “formal equality” or “equal treatment” in the 1970s; they also turned to
more expansive theories of equality—disparate impact and affirmative action. In
doing so, as the chapter’s title, “Reasoning from Sex,” suggests, they not only
drew on race jurisprudence to attack sex inequality, they also deployed
emerging sex equality theories and caselaw to protect and expand race
precedents.
For example, Ruth Bader Ginsburg turned the Court’s
rejection of strict scrutiny for sex-based classifications to the advantage of
feminists and civil rights advocates. Using a “reverse analogy,” she argued
forcefully that the distinction the Court had drawn between “invidious”
discrimination and “genuine affirmative action” in sex equality cases should
apply to race-based affirmative action, then under attack in Regents of the University of California v.
Bakke (1978). And this was just the tip of the iceberg. By the mid-1970s, this
chapter shows, race and sex equality law were so intimately intertwined that it
is impossible to understand either in isolation from the other.
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| Katie Mae Andrews Peacock |
Chapter 5 is one of my favorite chapters, in part because it
features the little-known case of Andrews
v. Drew Municipal Separate School District, argued at the Supreme Court in
1976 but dismissed as improvidently granted (“DIG’ed”). Katie Mae Andrews, then
22, challenged a rural Mississippi school superintendent’s ban on employing
unmarried mothers as teachers. Andrews was attorney Charles Victor McTeer’s
first client. McTeer collaborated with young feminist lawyers at the Center for
Constitutional Rights, including Rhonda Copelon, and solicited testimony from sociologist Kenneth Clark and activist
Fannie Lou Hamer. Andrews's supporters made innovative arguments about the intersections between
racial injustice, economic oppression, sexual subordination, and reproductive
freedom. They persuaded federal district court judge William C.
Keady to see the case as not only an end run around racial desegregation but as
an instance of unconstitutional sex discrimination, just weeks after the Court
decided Roe v. Wade and Frontiero v. Richardson (1973). But when their appeal reached the Supreme Court, the rich intersections that had so
excited Andrews’s feminist allies made the Justices profoundly uncomfortable.
Andrews is just
one of many examples of how race and sex were intertwined in sex
equality cases and campaigns during the 1970s. An astute colleague recommended
making the case the chapter’s centerpiece. I rewrote the chapter from scratch, narrowing
its focus to three sets of cases—involving school sex segregation, jury
service, and unwed mothers’ employment--illustrate a single theme: the
“whitewashing” of constitutional sex equality law.
In most respects, the word limit was a blessing in disguise,
forcing me both to distill the book’s primary arguments and ruthlessly
eliminate excess verbiage. Less salutary perhaps was my hatchet job on the
footnotes. The rule of thumb I’ve heard is that footnotes should comprise no
more than 25 percent of a book. My notes were longer than that, and still
omitted much relevant information and explanation. That said, I am likely the
only one who will miss them.
