Most Americans agree that discrimination is bad, but we don't all agree what we mean by this. Many complain about discrimination against racial minorities. Others complain that affirmative action, aimed at doing something about this, discriminates against non-minorities.
Discrimination was once considered good. Discriminating people knew the difference between high quality and low quality merchandise. They could tell good wine from mediocre.
Advertisers pitched appeals to discriminating consumers.
Discrimination acquired today's negative connotation when the term became associated with racial prejudice and segregation. Ironically, this newer meaning of discrimination was the exact opposite of its previous meaning. Bigots who assume that all black people are the same and discriminate against them are failing to discriminate between the wide variety of characteristics — virtues and vices, abilities and disabilities — that actual black individuals, like individuals of all races, have always had.
Their discrimination is undiscriminating!
There are important differences between discrimination by government and discrimination by private parties.
Discrimination by government in its capacity as a legislator is completely intolerable.
Genuine laws, the only kind a legitimate government can enact, must be general rules of action enforceable by sanctions. The same rules must apply to the actions of men and women, to people of all races and religions, to everybody.
Genuine laws cannot discriminate.
Legitimate states cannot require black people to ride in the back of the bus or order the extermination of Jews. They cannot prohibit women from working as bartenders unless the bar is owned by her father or husband. (Michigan once had such a rule, which was upheld by the U.S. Supreme Court in 1948 on liberal grounds!)
Legitimate states cannot prohibit women from driving. Legislation doing these things is pseudolaw, not law. Authorities cannot make it into a law just by saying it is a law.
Discrimination by government-as-legislator imposes sanctions on individuals arbitrarily selected by officials. These sanctions — deprivations of life, liberty, or property — all set people back, and sometimes disable victims from being able to do anything.
Discrimination by private individuals or organizations does not consist of imposing sanctions on anybody. Instead, private discrimination consists of refusals to enter into a voluntary association with selected people, refusing to confer inducements on them. The possibility of this kind of discrimination is an inherent consequence of the existence of voluntary associations, created by mutual consent of the parties to the exchange or transfer of inducements.
If consent from either party is not given, no voluntary association is created.
Unlike arbitrarily imposed sanctions, discriminatory refusals to associate do not set people back and leave the objects of such refusals free to enter into voluntary associations with anyone else who consents to associate.
Two special cases call for additional comment.
First: racial discrimination in public accommodations. Since discrimination is not an action, but a reason for action, it cannot be outlawed as such. Laws must be general rules of action. But genuine laws can have the goal of reducing or eliminating private discrimination. For historical reasons such laws are especially necessary to address racial discrimination in public accommodations.
Although the portions of the Civil Rights Act of 1964 prohibiting discrimination by hotels, restaurants, and gasoline stations were not genuine law, they were the equivalent of a genuine law requiring innkeepers and the like to accept all comers, first come first served. They basically codified the ancient common law duty-to-serve rule applying to innkeepers.
These laws were needed because innkeepers might have a local monopoly, and even when there was no monopoly travelers might not know where to find alternative accommodations or have time to do so before starving or sleeping in the streets.
Second: Government itself can be a party to voluntary associations. The logic applying to discrimination by government-as-legislator doesn't apply to government-as-contractor, which wields only inducements, not sanctions. In this role government must be just as free as any private parties to determine whether it will consent to enter into a voluntary association with an individual, a corporation, or another government.
Government-as-contractor has no duty to hire any specific individual, to purchase goods or services from any specific corporation, or to confer taxpayer money on any other government. Its failure to confer inducements, like private refusals to do so, does not set anybody back and leaves people free to find other parties willing to associate with them.
People who complain about public universities having affirmative action programs that discriminate in favor of minority applicants therefore do not have a strong legal case.
Whether affirmative action programs are wise and will produce the desired results at a reasonable price is, of course, a legitimate and separate question.
Paul F. deLespinasse is Professor Emeritus of Political Science and Computer Science at Adrian College. He received his Ph.D. from Johns Hopkins University in 1966, and has been a National Merit Scholar, an NDEA Fellow, a Woodrow Wilson Fellow, and a Fellow in Law and Political Science at the Harvard Law School. His college textbook, "Thinking About Politics: American Government in Associational Perspective," was published 1981 and his most recent book is "The Case of the Racist Choir Conductor: Struggling With America's Original Sin." His columns have appeared in newspapers in Michigan, Oregon, and a number of other states. To read more of his reports — Click Here Now.
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