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Should ladies’ nights really be illegal? An excerpt from Richard Thompson’s Ford’s new book, Rights Gone W rong.

Posted by jcmaziquemd on November 22, 2011

Should ladies’ nights really be illegal? An excerpt from Richard Thompson’s Ford’s new book, Rights Gone Wrong.
By Richard Thompson Ford | Posted Tuesday, Nov. 1, 2011, at 4:26 PM ET
| Posted Tuesday, Nov. 1, 2011, at 4:26 PM ET
Slate.com

How the civil rights movement led to a ban on ladies’ nights.
This is the first of three articles excerpted from Richard Ford’s new book, Rights Gone Wrong: How Law Corrupts the Struggle for Equality.Isbpw1hyo2NzDMr4oTJZmfiWh2PI88o5ZfY9fpBNdubNxnTAWHNM2904FCun_9K6ydmsOwOi72tZPIRqmUylD_Ie76GDk0LlK3RON15xst54wEyML24
On May 4, 2006, a man named Michael Cohn filed suit to stop Mother’s Day. The previous year, the California Angels had held a Mother’s Day celebration, which included a “#1 Angels Baseball Mom” contest and a Mother’s Day tote bag giveaway. According to the court that heard Cohn’s lawsuit, “due to the difficult logistics of discerning which women were mothers in the heavy traffic of entry to the game, the team decided to generalize ‘mothers’ as females 18 years and over” and give them—and only them—the Mother’s Day gifts. Cohn didn’t fit that description, and so he didn’t get a fetching Mother’s Day goodie bag. Enraged that he was denied a gift because of his sex, he sued.
Rest easy: The courts dismissed the lawsuit, and the Golden State remains safe for maternal celebrations. The California Court of Appeals pointed out that the Angels did not in fact intend to denigrate or disadvantage men; instead the team wanted, as Scripture admonishes and as loving children have done for millennia, to honor their mothers: “The intended discrimination,” the court insisted, “is not female versus male, but rather mothers versus the rest of the population.” The court further noted: “It is a biological fact that only women can be mothers. … [T]he Angels did not arbitrarily create this difference.”
In other words, it was not the Angels’ Mother’s Day celebration that discriminated against Michael Cohn. It was Mother Nature, and her policies are not subject to the court’s jurisdiction.
So far, Mother’s Day has survived legal challenge. But the zealous guardians of sexual equality have had success in other struggles against the menace of matriarchy, in particular the social and cultural scourge that is “Ladies’ Night.” In 1979, a student named Dennis Koire saw the ugly face of discrimination when he was excluded from a bar that admitted his female companion. Koire soon began to notice female chauvinism everywhere: Car washes offered women discounts on discriminatory “Ladies’ Days” and nightclubs waived cover charges for women. When Koire sought to assert his equal rights, not only was he rebuffed—he was ridiculed. “Come back when you’re wearing a skirt,” quipped one car wash manger. “So sue me,” dared a nightclub proprietor.
Koire did just that: With the help of the ACLU he took his complaint all the way to the California Supreme Court, which in 1985 held that “Ladies’ Nights” violated the state’s Unruh Civil Rights Act, which in dramatic and unequivocal language entitles anyone in the state to “full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”
Koire’s lawsuit was the beginning of the end for ladies’ nights in America. In 1998 David Gillespie filed a complaint with the New Jersey Division of Civil Rights against the Coastline Restaurant, which waived a $5 admission charge and offered drink discounts exclusively to women on ladies’ night. The state sided with Gillespie in 2004 and dropped the gavel on ladies’ nights. In 2006 Stephen Horner sued a Denver nightclub over its ladies’ night policy. Horner explained his opposition to the unfair advantages women enjoy in American society: “Women are growing up these days feeling they’re entitled to favors. I believe this entitlement mentality is counterproductive to the social goals of a[n] egalitarian society.” He then added, apparently without irony: “I’m going to ask for every dollar I’m owed to the letter of the law, which is $500.”
In 2007 Todd Phillips, a lawyer specializing in gender bias, sued a Las Vegas gym that offered women a discount on initiation fees and a separate workout area. Courts in Iowa, Pennsylvania, Connecticut, and Hawaii have found that ladies’ nights and similar promotions or discounts are unlawful sex discrimination. And in 2007, the California Supreme Court reaffirmed its opposition to ladies’ nights, finding for lawyer Marc Angelucci of the National Coalition of Free Men—not a gang of Chicago-school libertarians but a “men’s rights” organization—in his lawsuit against a Southern California club that occasionally waived its $20 entrance fee to women. Angelucci was awarded $4,000 in damages for each violation. jJBn5U70girB9DNbBj_ZHMeh-L8vkn2Ym05tS054kN_MZsEpexR-vT2Xx25h1Kr2fvU199yq1C4kR2rWrPwKoEGizuu54ueQZ2B0z_oJNEqyL9Y7FVs
Although the law in several states apparently prohibits ladies’ nights, popular opinion echoes the approval of Kool and the Gang: It’s ladies’ night, and the feeling’s right.After New Jersey banned ladies’ nights in 2004, then-Gov. James McGreevey condemned the decision as ”bureaucratic nonsense” that “reflects a complete lack of common sense and good judgment.” (Attempts to amend New Jersey’s civil rights laws to allow ladies’ nights failed.*) A columnist in the National Review called the ruling “emblematic of the growing arrogance of a government caste that seeks to micromanage every aspect of American’s lives.” Liberals, meanwhile, complained that the decision distorted the true purpose of civil rights laws and diverted resources from real injustices. The less politically minded lamented the death of chivalry and a misguided step toward an androgynous culture.
In the Koire case in California in 1985, California Supreme Court Chief Justice Rose Bird insisted that “the legality of sex-based price discounts cannot depend on subjective value judgments about which types of sex-based distinctions are important or harmful.” On the legal Web site Findlaw, a lawyer compared ladies’ night to the racist contempt of apartheid and the Jim Crow era, insisting that “one act of discrimination does not cancel out another. … If a bar had a ‘Whites’ Night’ followed by a ‘Blacks’ Night’ no one would blink an eye before denouncing … each night.” George Washington University law professor John Banzhaf, who has encouraged his students to sue to stop ladies’ nights, argues that ladies’ night is in principle indistinguishable from discriminatory customs that denigrate women—that discrimination is discrimination. Using this kind of logic, offering your seat on the bus to a woman because of her sex is just as bad as making black people sit in the back of the bus because of their race.
Today most people agree that sexist rules and customs that keep women down and perpetuate stereotypes of female frailty, passivity, and incompetence should be prohibited in the workplace and expunged from the public sphere. But only a handful of extremists would extend laws against sex discrimination to forbid chivalry or ban a time-honored tradition like Mother’s Day or an innocent custom like ladies’ night.
Of course, read literally, without the mediating influence of good judgment or common sense, the laws that prohibit truly demeaning and invidious sex discrimination apply to ladies’ night promotions and the use of female sex as an expedient proxy for mothers in a Mother’s Day giveaway. Rights go wrong when propelled beyond the boundaries of good sense by abstract thinking. Justice Bird’s admonishment notwithstanding, legal prohibition must depend on judgments about which practices are important or harmful. Not every distinction—even if based on race or sex—is invidious.
Correction, Nov. 2, 2011: This article originally stated that New Jersey had amended its civil rights laws to allow Ladies’ Nights. It has not. (Return to the corrected sentence.)

When education isn’t a civil right: An excerpt from Richard Thompson’s Ford’s new book, Rights Gone Wrong
By Richard Thompson Ford | Posted Wednesday, Nov. 2, 2011, at 11:50 AM ET
| Posted Wednesday, Nov. 2, 2011, at 11:50 AM ET
Slate.com

Why it’s not always best to treat education as a civil right.eP2sjXWt0um3UJKt_d3Piy7oat4N0Z6uApPOaH_cv8dKgC7IKgXhnvW8Thp84HBzhkSzVDEqmibkrFNKQoCW7arUXLQTSV5DB9tQqC74JXaIxExyyAc
This is the second of three articles excerpted from Richard Ford’s new book, Rights Gone Wrong: How Law Corrupts the Struggle for Equality.
Tom Freston, who helped start MTV and was present at the creation of such timeless classics as Beavis and Butthead, earned a nice living as an entertainment executive. When he retired as head of Viacom in 2006, he received a $60 million severance package. So why, in the late 1990s, did he sue the city of New York to reimburse him for his son’s private-school tuition?
In 1995, after his son was diagnosed with ADHD, Freston enrolled him in the prestigious Stephen Gaynor School, which specializes in students with learning disabilities. Under the Individuals With Disabilities Education Act, if a school district receives federal funding, it must develop “specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability.” If the school district fails to provide a child with an “appropriate” education, the parents are legally entitled to tuition reimbursement for private schools.
New York agreed to compensate Freston in 1997 and 1998. In 1999 (annual tuition: $21,819), it offered Freston’s son a slot at a prestigious public school for students with disabilities. Freston declined. The district then declined to reimburse him. Freston then sued. For him, the case wasn’t about money—he donated his reimbursements to a tutoring program for public school children—but about the principle: He was fighting for the rights of all students with disabilities. From the district’s perspective, the case was about an abuse of the law by wealthy parents “who never intended to use the public schools.”
They both have a point. What the case shows most starkly, however, is the inadequacy of using civil rights law to improve the education of all students—both with and without disabilities.
One of the briefs filed on behalf of the city of New York complained that “[I]n one recent year, public schools spent over 20% of their general operating budgets on special education students. But, as a brief filed on behalf of Freston pointed out, most of that amount was spent on special education in publicschools—not on tuition reimbursement. Tuition reimbursement wasn’t a unique problem—it was just a dramatic example of the cost of special education generally.
Mark Kelman, my colleague at Stanford Law School, and Gillian Lester, now a professor at U.C.–Berkeley Law School, conducted an extensive study of learning disability claims in public schools and wrote a book about it. They visited a number of local school districts and talked to local school administrators, teachers, and parents to see how the disability rights laws worked in practice. Their conclusion: Treating the education of learning disabled children as a civil rights issue benefits rich families at the expense of the poor, and actually makes it harder to educate most students—disabled and nondisabled alike.
For nondisabled children, the problem is obvious: The law requires school districts to spend more—often a lot more—on costly special services reserved exclusively for children diagnosed with learning disabilities. This might make sense if the districts were awash in money, or if the special services were uniquely helpful to the children with learning disabilities, the way, say, Braille texts are uniquely helpful to the blind. But in fact, many of the special services the schools are required to provide for children with learning disabilities would benefit any child: smaller classes with better student- teacher ratios, one-on-one tutoring, immunity from discipline for disruptive behavior, extra time on exams.
Under IDEA, schools that fail to effectively educate disabled children can be made to pay for private school tuition. But the public schools—especially those in large cities like New York—are failing to educate many of their students who aren’t disabled, too. In 2004, more than 3 percent of all students served by the District of Columbia schools were in private placements, at a cost of 15 percent of the district’s entire budget. Yet D.C. schools “struggle to provide an adequate education to any of their students,” write two researchers at the Manhattan Institute. “Disabled students are entitled … to demand an adequate education,” they note, while nondisabled students “lack the same mechanism for exiting failing schools.”
It’s easy for parents to argue that public school classes don’t offer an adequate education to their learning disabled children when they don’t offer an adequate education to anyone. Contrary to the civil rights theory underlying the IDEA, disabled students who don’t receive an appropriate education aren’t necessarily being discriminated against—tragically, they’re often receiving the same (poor) quality education as everyone else.
The civil rights approach to special education also disserves many disabled children—especially those from poor and minority families. Special education under the IDEA can range from a reimbursement of expensive private school tuition to isolation in a dead-end class with “slow” children. Kelman and Lester worry that poor children typically receive very different treatment under IDEA mandates than do the children of wealthy parents, who have the wherewithal to pressure school districts for better and more costly options: “The IDEA system,” they write, “permit[s] relatively privileged white pupils to capture high-cost … in-class resources that others with similar educational deficits cannot obtain, while, at the same time, allowing disproportionate numbers of African-American and poor pupils to be shunted into [special ed] classes.”
There was even more reason to worry that the IDEA system benefited the rich at the expense of the poor in the case of demands for tuition reimbursement like Tom Freston’s, because only wealthy parents could afford to send their child to an expensive private school and sue for reimbursement later.
In 2009 students with learning disabilities accounted for almost half the entire population of disabled students receiving special services under the IDEA.
It’s no accident that the explosion of learning disability diagnoses comes at the same time the public schools are increasingly troubled by overcrowding, spotty teaching quality and violence. Given the state of many American public schools, who can blame parents for seeking private alternatives or trying to finagle extra resources for their children? While all students suffer from overcrowding and indifferent teaching, poor performers—whether diagnosed with disabilities or not—suffer most.
The parents of such students are right to insist that the schools are failing to help their children realize their potential, and failing them more dramatically than they are failing students who learn easily and without much help. In that sense poor schools are inherently discriminatory: They make any student who has difficultly learning—for whatever reason—worse off than students who learn easily.
The solution is obvious: better services for everyone. But IDEA doesn’t make the public schools better. Instead it shifts resources to a small fraction of the larger group of people who need them most. This might make some sense if that small fraction were especially injured by inadequate education, or if these students would uniquely profit from the extra resources. But if, as many educators believe, these children need the same things that any other student needs—good teaching in small classes—then it’s wrong to treat their needs as inalienable civil rights when we treat the needs of other students as luxuries that nearly bankrupt districts can’t afford.
At any rate, the IDEA doesn’t even try to find out whether children with learning disabilities get more out of extra resources than other children would. The law is premised on the unexamined conviction that some children should have more than others—regardless of whether they need it more, or will benefit more from it. All in the name of equality.

Are civil rights lawsuits still relevant? An excerpt from Richard Thompson Ford’s new book, Rights Gone Wrong
By Richard Thompson Ford | Posted Thursday, Nov. 3, 2011, at 10:18 AM ET
| Posted Thursday, Nov. 3, 2011, at 10:18 AM ET
Slate.com

Why civil rights lawsuits are becoming irrelevant in the fight for social justice.
This is the last of three articles adapted from Richard Ford’s new book, Rights Gone Wrong: How Law Corrupts the Struggle for Equality.
Since the 1960s, the ideas developed during the civil rights movement have dominated American race relations. Courts and governmental agencies enforce legal prohibitions against discrimination, and private businesses and universities follow suit, fashioning their own diversity policies. Even private individuals think about race relations in civil-rights terms: We aspire to the ideal of “colorblindness” and condemn the evils “discrimination” and “bias.” American civil rights legislation has been a model for other nations, and the American civil rights movement has inspired important struggles against injustice, such as the South African anti-apartheid movement and the international movement for gay rights.
For a long time this way of thinking made perfect sense. When it comes to outright discrimination and overt prejudice, civil rights have been an astonishing success. But today’s most serious social injustices aren’t caused by bias and bigotry. In the context of race, they stem from segregation—a legacy of past racism but not by and large the result of ongoing discrimination—and the many disadvantages that follow from living in isolated, economically depressed and crime-ridden neighborhoods. Civil rights litigation and activism have hardly made a dent in these formidable obstacles. In fact, civil rights thinking can distract attention from the real problems, emphasizing dramatic incidents that aren’t good examples of the larger injustices.
Civil rights haven’t been a panacea for the illness of social prejudice, but like a patient who keeps popping pills because the prescription isn’t working, we’re now at risk of an overdose. Civil rights litigation has exploded since the 1970s, far outpacing the growth in civil litigation generally. In 1991 the federal courts heard about 8,300 employment discrimination cases; in 2000 they heard more than 22,000. Civil rights laws, properly framed and limited, serve a vital social purpose, but too many civil rights can be as bad as too few, and an overly aggressive civil rights regime can be as destructive as an ineffectual one.REZahZ75bP9WzEssxIerwecG7jXDXPuWwmfDhLqyv1h2yCQUljrx7uJMUxh-34c9Tm8hLehvCmVhqOewDGt-i6ylliHEIs8u7Rou1AeVzYDNIqqIx6M
Civil rights litigation and activism don’t do enough to redress today’s most serious social injustices, many of which aren’t caused by overt prejudice or simple discrimination. Inner city blacks are more isolated from, and less likely to succeed in, the prosperous American mainstream than they were in the 1970s. Joblessness among blacks without a high school education is higher than at any time in American history: In 2004, 72 percent of black men who didn’t finish high school are unemployed, and more than half of inner city black men don’t finish high school. By the time they reach their mid-30s, roughly 60 percent of these young men will have been incarcerated. Women still earn about 75 cents for every dollar men earn for comparable work. The unemployed elderly are more likely to stay that way than younger job seekers, because of a complex set of economic and institutional factors. The disabled still lack the access to jobs, education, and public buildings—things that most of us take for granted. Gay men and lesbians face widespread hostility and contempt. These problems remain entrenched despite more than 40 years of comprehensive civil rights enforcement; numerous new civil rights laws at the federal, state, and local level extending entitlements to an increasing number of new groups; countless costly and acrimonious lawsuits; and the constant drumbeat of civil rights activism.
At the same time, opportunists and special interest lobbying groups have used civil rights laws to get an edge in competitive schools and job markets, demanding special privileges and even cold hard cash as a matter of civil rights. Civil rights laws prohibiting discrimination have been pressed to perverse and illogical extremes: Laws against sex discrimination are used to require coed public restrooms and outlaw “Ladies’ Nights” at singles bars; one litigant even sued to stop Mother’s Day. Cynical opportunists and reckless extremists on both the left and the right have hijacked civil rights, using them to gain personal advantage at public expense, to push radical schemes despite democratic opposition and in some cases, even to reverse and undermine the social justice goals civil rights were supposed to achieve.
It’s not just that civil rights laws are abused or taken too far: Some may be doing more harm than good. For instance, the 14 Amendment to the Constitution was enacted after emancipation, to ensure that newly freed slaves would have a chance at a decent and dignified life, and it has been one of the most important constitutional guarantees of equality for most of the 20 century, serving as the legal foundation of desegregation in 1954’s Brown v. Board of Education. But more recently the 14 Amendment guarantee of equal protection has stymied sensible, if controversial, efforts to correct racial inequality, in direct contravention of its historical purpose. Most dramatically, in 2007 the 14 Amendment was used to prevent racial integration in the public schools.
Civil rights have “occupied the field” of social justice, crowding out alternative ways of thinking and new solutions. It’s hard to think of a social cause that isn’t framed in terms of rights, and a growing number of social groups seek to define themselves as embattled or despised minorities in order to qualify for civil rights–style public sympathy, if not formal legal entitlements. Rights against discrimination on the basis of age, disability, sexual orientation, height, weight, and physical appearance followed hard on the heels of the right against race, sex, and religious discrimination created by the omnibus civil rights legislation of the 1960s. Civil rights are an important part of many social justice struggles, but they are subject to the law of diminishing returns. Rights can offer limited improvements in a narrow set of circumstances. But the effectiveness of the civil rights approach diminishes, and its costs increase, as it is applied to more novel, complex, and elusive social problems.
Those working for social justice all too often eschew the difficult and unpleasant task of popular persuasion, lured by the false hope of a short cut by way of judicially mandated civil rights. Even policy reform pursued through the democratic process often takes the form of new individual entitlements, following the lead of the Civil Rights Act of 1964. It’s now common to think of individual rights as the most effective way to attack injustice. Few remember that when the law was passed, enforcement by private individuals was a second-best compromise that the act’s strongest supporters thought risked making the new law ineffectual. In many ways, they were right: The most disadvantaged victims of America’s long-lived racial hierarchy, trapped in poverty-stricken ghettos and quarantined in prisons, have enjoyed few of the benefits of the civil rights legislation.
Meanwhile, what we could call “rights consciousness” occupies a larger part of our culture than ever before. Today the rights to life, liberty, and the pursuit of happiness seem almost quaint in a field crowded with novel and ambitious new rights. International human rights were developed as a response to torture and genocide, but they quickly expanded to guarantee a variety of substantive goods and social services, including housing, medical care, dignified employment, and cultural integrity. The Bill of Rights of the Constitution has inspired the Taxpayers’ Bill of Rights, the Airline Passenger’s Bill of Rights, the Consumer’s Bill of Rights (a telling reflection of our national priorities), and the Pizza Lover’s Bill of Rights (ditto). Each of these new rights is inspired by a laudable and important aspiration (with the exception of pizza). But is the language and logic of rights the best way to think through or address all these concerns? And what does it say about public confidence in political and economic institutions and our relationships with our fellow citizens that we pursue so many of our goals and imagine so much of our life in terms of formal entitlements?
Civil rights are remarkably effective against overt prejudice perpetrated by identifiable bigots. But they have proven impotent against today’s most severe social injustices, which involve covert and repressed prejudice or the innocent perpetuation of past prejudice. Like an overprescribed antibiotic that kills beneficial micro-organisms and eventually encourages resistant strains of bacteria, the civil rights approach to social justice, once a miracle cure, now threatens to do more harm than good.

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