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May 1995
Volume 13, Number 5

Repeal '64
Llewellyn H. Rockwell, Jr.

Steve Stockman, among the best of Washington's freshmen Congressmen, holds a daily prayer session that staff members attend voluntarily. Last year, nobody could have stopped it. But thanks to the "Contract With America," Congress now has to comply with the 1964 Civil Rights Act.

The ACLU says Stockman may be discriminating on the basis of religion. Now it's up to the executive branch's Equal Employment Opportunity Commission to decide. Like the rest of the country, Stockman's office will probably choose the path of least resistance: comply with the planners' wishes. The Left wins another one.

The incident points to the shortsightedness of forcing such laws on Congress. Bad law should be repealed, not extended, especially not to the only branch of government the people can directly influence. The executive branch can now effectively control the internal life of every Congressional office, just as it controls the internal life of most every business, bank, and educational institution. Already, the law is being used selectively against troublemaking Congressmen.

Sure, Stockman and staff can invoke First Amendment protections of religious freedom. And the Fourth Amendment was supposed to protect privacy rights in homes, schools, and businesses. The Constitution has never stood in the way of civil rights enforcement. In the name of stamping out illegal discrimination, fundamental rights like freedom of association are denied daily.

The ethical gloss of civil rights has long since vanished, leaving only the brute power of statism to enforce an egalitarian agenda. White males, for example, are no longer fooled by the euphemisms. Whether its "set asides," "affirmative action," or "timetables," they know it means denying economic opportunity to them in order to benefit others.

Politicians are promising to do something about it, but they have missed the larger point. Our troubles don't stem from "quotas," "set asides," and the like; they stem from the presumption that government should be monitoring "discrimination" in the first place. Pass all the anti-quota laws you want. Until anti-discrimination law is repealed, nothing can block the march of big government.

Think about the term "discrimination." It means choosing among several options. Our every thought, word, and deed are choices among options. We stop discriminating only when we become slaves or when we die.

When the government got into the business of regulating our choices through anti-discrimination law, it was attempting to regulate our thoughts. It first forbid certain kinds of choices when made "on grounds of" race, sex, religion, and national origin. That was expanded to disability, which includes "mental" disability. Nowadays, our whole society and economy are burden by the anti-discrimination police.

This was the inevitable result of a 30-year old legal trick. The Civil Rights Act of 1964 didn't forbid any particular racial or sexual configuration in school or the workplace. An employer or admissions officer is free to choose, so long as he doesn't choose for the wrong reason. Single-race or single-sex workplaces--freedom of association's acid test--were still allowed. But, according to law, they could not be consciously created. You can hire only white males, but you cannot intend to hire only white males.

How can we prove intent? This is where the trouble begins. Every decision is made from a mixture of motivations. Not even the actor himself can fully know what went into a decision. Certainly the government cannot. But by forbidding certain kinds of discrimination, the government gives itself power to define what constitutes evidence for malintent.

Courts, it's hardly surprising, took the easiest path. To prove discrimination, look for circumstantial evidence. They discover "disproportionate effects" and "disparate impact." This translates to: you're guilty because you have not hired enough women and minorities. To avoid that fate, you must adopt affirmative action, quotas, goals, timetables, and set asides: the spoils system now poisoning American life.

Let's say Congress wanted to stop shotgun weddings. So it passed a law saying: "Marriages entered into by parties at or under the age of 25 must be based on love, not convenience; Neither should this law discourage early married as such." This is enforced with $100,000 fines. After an explosion of litigation and government investigations, who'd be surprised when couples would wait until age 26 to get married?

So it is with the civil rights movement. Its members may protest that they didn't intend quotas and the like. In fact, the civil rights movement gave us exactly what it was supposed to give us: legal preferences for its constituents and institutionalized disadvantages for everyone else.

Here's a recent application. When the merchants of Union Point, Georgia, drew up a list of known shoplifters, the Justice Department intervened to stop them. Everyone on the list was black. In order to comply with the Civil Rights Act, some on the list would have to be white. If there are no white shoplifters--and black police chief said there were none--there can be no list and thus no property rights enforcement. Union Point is a microcosm of America under civil rights.

In the case of religious discrimination, you're guilty by choosing religion over secularism. By holding a prayer session in his office, is Representative Stockman culpable under the Act? Well, he's holding a prayer session, not a Black Mass. This might discourage Devil worshipers from applying for a job, a situation which the Civil Rights Act is supposed to prevent.

The hysteria about same-race adoptions is another case in point. Most adoption agencies allow couples to choose the race of their child. It's hardly surprising that when adopting a child, the vast majority of people choose their own race. The National Association of Black Social Workers, for example, encourages blacks to adopt blacks.

But the Institute for Justice in D.C. and the *Wall Street Journal* are pushing a federal law to forbid discrimination in adoption. As with businessmen in hiring, colleges in admissions, and hotels with customers, adoption agencies would not be allowed to take race into consideration when placing children. That is, a black family could not request to adopt a black child. An Asian couple with special affection for Vietnamese orphans can forget it. A white family could not request a white baby.

It's a fair assumption that no one wants to gamble when it comes to intimate matters like the race of your children. That's why, if passed, this law would destroy the market for adoption rearing rights as we know it. It would be just another of the thousands of enterprises destroyed by Washington's egalitarian planners.

It's conservatives, not liberals, who are naive about the real meaning of anti-discrimination law. They say they love the Civil Rights Act, "Dr." King, and the "ideal" of the color-blind society. They want to protect "individuals" from discrimination, but not "groups." They like "equality of opportunity" but don't like "equality of result."

Shelby Steele, an author whose status as a black man allows him to pronounce against quotas, says he would gladly get rid of affirmative action. But in that case, he writes, there would have to be "criminal penalties," not just civil ones, for discriminating against blacks. William Kristol, the Republican leadership's excuse for an intellectual, agrees.

This is foolish and dangerous. You cannot abolish affirmative action and quotas and still enforce the Civil Rights Act. Racial preferences are bound up with anti-discrimination law--logically, politically, historically, and jurisprudentially.

The Steele-Kristol proposal would actually be totalitarian. It would criminalize thoughts and intents that are already forbidden under civil law. If people feel pressure to conform to egalitarian dictates now, imagine how much worse it would be if jail were a possibility?

Neither is the California Civil Rights initiative much of a solution. This referendum says that neither discrimination nor preferences will be allowed in the conduct of state business. But such a law invites more questions than it answers. Depending on how it's enforced, it may not be an improvement.

Its authors hope to dethrone race and sex as criteria for state contracts and college admissions, and enshrine "merit" as its replacement. But "merit" is a subjective and nebulous concept. Isolating the abstraction of "merit" from race and sex will be difficult or impossible; the attempt will invite even more litigation.

What if not discriminating (as interpreted by courts) requires giving preferences (as interpreted by courts)? What if not giving preferences appears to be discrimination? What if the word "preference" is interpreted (by courts) not as quota but as a *de facto* lack of minority representation? As in: you have too many white males on the payroll; you must be giving special preference to them. There's no way to win this game, because, even with this referendum, the government still holds all the cards.

Quotas and racial preferences are already banned under the 1964 and 1991 Civil Rights Acts. These preferences persist because the only foundation they need is anti-discrimination itself. What good will banning quotas do so long as government has the ability to veto the results of private decision making?

It wasn't quotas that led to the class-action looting of Denny's, which ended in owners giving away 47 restaurants to the officially privileged. End every set aside, and you still have whole housing complexes harassed for keeping out criminals. Abolish all affirmative action, and colleges will still have to recruit the intellectually challenged in order to avoid the appearance of discrimination.

The only way to end the terror of quotas, and to establish a free market in talent, is to repeal the 1964 Civil Rights Act. The government needs to be stripped of its power to determine if anyone is discriminating or giving preferences (or even determining on what constitutes either). The government of a free society cannot have the power to declare holding subjective intentions, whether good or bad, to be illegal.

If a college or university wants a racial quota, fine. Another can have an exclusivist admission policy. The same goes for business: the government should never again tell anyone they have too many or not enough of this or that group. We also need to give up the notion of a "color-blind society"--a goal as absurdly utopian as socialism itself--and settle for real fairness: a neutral legal environment of contract enforcement.

Imagine a world without anti-discrimination law. Every employee would be planned and wanted. Business would be free to advertise for job openings without fearing lawsuits. There would be no more quota loans from banks. The credit rating would mean something again. The university could get back to being a place of learning instead of a victimological remediation center.

Don't count on Washington to end affirmative action any time soon. Neither party intends the overhaul of civil rights. The quota culture is so huge--in academia, business, and in the official philosophy governing public policy in this country--that it requires political root canal.

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Llewellyn H. Rockwell, Jr. is president and founder of the Ludwig von Mises Institute

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