The Case for Discrimination

20. AFFIRMATIVE ACTION: INSTITUTIONALIZED INEQUALITY

IN 1961, PRESIDENT JOHN F. KENNEDY ESTABLISHED A PROGRAM of “affirmative action” with the declaration of Executive Order 10925. He defined the initiative as “public and private programs designed to equalize hiring and admission opportunities for historically disadvantaged groups by taking into consideration those very characteristics which have been used to deny them equal treatment.”1

Upon first glance, this policy seems like a well-intentioned, well-deserved method of reparation. Affirmative action programs do indeed intend to set things right. However, implementation poses a clear and puzzling contradiction. In order to repay one group, the government proposes to take away the freedom of others. This includes, but is not limited to, infringing upon the right of employers to hire whomever they choose. It also discriminates against prospective applicants for jobs or to schools who are immediately put at a mandated disadvantage simply because of their race or gender.

Discrimination against minorities based solely on skin color or ethnic origin is an ignorant and unfortunate practice. However, it is our right as free individuals with personal liberty to hold whatever opinions or prejudices we choose. If we are to be logically consistent, this right must be carried over to the employer to hire people based on whichever characteristics he chooses. If an employer had a deep aversion to people with brown eyes and hired people accordingly, it would be a violation of his rights to force him to hire brown-eyed people. Then there is nepotism: a private bank owner who hires his cousin rather than another, more highly qualified applicant who is not a member of his family.2 Should this man be punished by law? Clearly the answer is no. Certainly not if we value the right of free association. Laws prohibiting people from interacting with others, whomever they choose, for whatever reason, are a violation of their freedom to associate. We hold this right well-nigh sacred in some arenas: dating, friendship, marriage. No one has a legal obligation, say, to be colorblind (or gender blind) in his choice of a marriage partner. If affirmative action is such a moral, appropriate policy, why do not even its most fervent advocates counsel its use in such personal arenas?

THE PRICE OF DISCRIMINATION

As it happens, the market serves to eliminate discrimination, its legal, moral, and logical status notwithstanding. In a free market, employee compensation can only be truly successful if skill and productivity serve as the only basis for choice. According to economist Thomas Sowell, “The competitiveness of the market puts a price on discrimination, thereby reducing it but not necessarily eliminating it.”3

By this, Sowell means that, in a competitive market, the person being discriminated against is not the only one who is penalized. If an employer refuses to hire all blacks based solely on their skin color, and in the process hires less-qualified whites, a competitor who chooses employees based on productivity will end up with the cheaper, more highly skilled work force and outperform the racist. Eventually, enough other firms will realize they can outperform their racist counterpart by hiring based on productivity, and he will tend to be pushed out of the industry when his business fails. In this manner, the free market provides a clear incentive not to discriminate according to race.

A classic example of this is the signing of Jackie Robinson by the Brooklyn Dodgers in 1947. By voluntarily excluding blacks from baseball, the owners had, in fact, neglected a large pool of talented athletes. When the Dodgers turned to this sector of the labor market, “they acquired a competitive advantage which other teams could not allow to continue indefinitely.”4 If the other teams had continued to discriminate against blacks, eventually they would have lost more and more games, and like a firm in any other industry, would have faced failure.

Consider how an affirmative action policy would affect the National Basketball Association.5 Today, in a free market for basketball players, the majority of players in the NBA are black. Were we to apply affirmative action here, the law would require fair representation of whites, Hispanics, and Asians. That even the most radical advocates of this policy never so much as contemplate such a course of action constitutes further indication of its intellectual bankruptcy.

If the government mandated that white players be given preferential treatment because they are underrepresented in the NBA, the overall quality of the game would suffer, as lesser-qualified whites took the place of more highly qualified blacks, simply because of their skin color. The fan would most likely not be pleased with the fact that he would be receiving less for his ticket dollar than in a free market, where the most productive, most qualified players were on the floor. This watered-down product would ultimately lead to reduced ticket sales and the turning to substitute goods, namely, other forms of entertainment.

Affirmative action should be rejected by Americans of all races. It unfairly places whites at a disadvantage by limiting choice. For non-whites, it is a slap in the face: there is an institutionalized implication that they need government aid. It tends to exacerbate existing stereotypes and deepen racial rifts. It breeds contempt in the workplace, placing doubt in the minds of some whether their co-workers received the job based upon merit. It is a direct assault on the pride of the minority worker who has worked hard to improve himself, and has earned his position honestly.6 It is also a disincentive for others to invest time in education and self-improvement.

Affirmative action is an immoral policy that must be ended. Instead, we must legalize a situation where everyone is viewed without color. In this “colorblind” society the free market would ensure equality in the sense that people would be judged according to their ability and qualifications, rather than by irrelevant, artificially imposed qualities.7 In this sense, while every member of society may not succeed equally in a market, they will sink or swim based on their personal merit and be ensured an equal opportunity in the purest sense. Of course, if private people, groups, or individuals, wish to pursue affirmative action, reverse discrimination, or even the other variety against which our “civil rights” legislation was created to combat, the law of free association gives them the right to do just that.8 In this paper, we were mainly concerned to reduce government discrimination, surely a very different matter.

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Walter Block and Timothy Mulcahy, The Freeman: Ideas on Liberty (October 1997).

9 Donald Altschiller, ed., Affirmative Action (New York: The H.W. Wilson Company, 1991), p. 5.

10 Steven M. Cahn, ed., The Affirmative Action Debate (New York: Routledge, 1995), p. 39.

11 Thomas Sowell, Markets and Minorities (New York: Basic Books, 1981), p. 40.

12 Ibid.

13 Following the same train of thought as in previously mentioned examples, if a team in a free market discriminated using something other than productivity, it would lose both games and money.

14 Walter Block and Michael Walker, Discrimination, Affirmative Action, and Equal Opportunity (Vancouver, British Columbia: The Fraser Institute, 1982).

15 Terry Eastland, Ending Affirmative Action: The Case for Colorblind Justice (New York: Basic Books, 1996).

16 Walter Block, “The Economics of Discrimination,” Business Ethics 11, (1992): 241–54.

• 1Philip Blumstein and Pepper Schwartz, American Couples: Money, Work, Sex (New York: William Morrow, 1983).
• 2See lewrockwell.com.
• 3See lewrockwell.com.
• 4“The Evil of Term Limits,” lewrockwell.com.
• 5See Hans-Hermann Hoppe, Democracy—The God That Failed: The Economics and Politics of Monarchy, Democracy, and the Natural Order (New Brunswick, N.J.: Transaction, 2001).
• 6See, e.g., Thomas Sowell, Race and Culture: A Worldview (New York: Basic Books, 1994).
• 7James Buchanan, Cost & Choice (Chicago: Markham Publishing, 1969), especially pp. 47–48; G.F. Thirlby, “Subjective Theory of Value and Accounting Cost,” Economica 13 (February 1946): 32–49; Ludwig von Mises, Human Action, 3rd ed. (Chicago: Regnery, 1963), pp. 242, 395.
• 8A female/male income ratio of 485 can be derived from Income Distributions by Size in Canada, 1979, Statistics Canada, Catalogue 13-207 (Ottawa: Statistics Canada, 1979), p. 99.
• 9Most women, on the other hand, even executives, do not consider housework demeaning.
• 10In the first of these columns, “A Silver Lining in Drug Prohibition,” I noted that real criminals who might not otherwise be caught are sometimes jailed for engaging in the drug trade, which they have every right to do. But fewer murderers and rapists at large is surely a good thing. In the second of these columns, “A Silver Lining in Unjust Executions,” I observed that those executed for murders for which they are innocent (a travesty of justice if ever there was one) were sometimes guilty of committing other capital crimes for which they were not charged. Thus, a critique of the death penalty was not as powerful as otherwise thought. In the third, I tried to clarify my position on this issue vis-à-vis several objections that had been made of it.
• 11In the first of these columns, “A Silver Lining in Drug Prohibition,” I noted that real criminals who might not otherwise be caught are sometimes jailed for engaging in the drug trade, which they have every right to do. But fewer murderers and rapists at large is surely a good thing. In the second of these columns, “A Silver Lining in Unjust Executions,” I observed that those executed for murders for which they are innocent (a travesty of justice if ever there was one) were sometimes guilty of committing other capital crimes for which they were not charged. Thus, a critique of the death penalty was not as powerful as otherwise thought. In the third, I tried to clarify my position on this issue vis-à-vis several objections that had been made of it.
• 12In order for there to be a silver lining, there has to be an evil, and, also, some good must come out of it. I am already on record in taking the position that term limits are highly problematic. I did so on grounds blazed by Professor Hans Hoppe. His argument is based on time preference: other things equal, the longer a politician is in office, the more of a long-run viewpoint he can afford to take. If he can leave the office to his children (e.g., a monarchy), he will act even more responsibly; he doesn’t want to kill the golden goose, otherwise there will be nothing left for his progeny to exploit.
• 13In order for there to be a silver lining, there has to be an evil, and, also, some good must come out of it. I am already on record in taking the position that term limits are highly problematic. I did so on grounds blazed by Professor Hans Hoppe. His argument is based on time preference: other things equal, the longer a politician is in office, the more of a long-run viewpoint he can afford to take. If he can leave the office to his children (e.g., a monarchy), he will act even more responsibly; he doesn’t want to kill the golden goose, otherwise there will be nothing left for his progeny to exploit.
• 14There is no one who has done more to combat this pernicious fallacy than Tom Sowell. But he needs all the help he can get on this mission. It is incumbent upon all men of good will to help him in this regard. And one way that we can do so is to recognize one of the side order benefits of that otherwise insidious policy of term limits: that it disproportionately penalizes female politicians.
• 15Another difficulty is that “equal opportunity” is a subjective, not an objective, phenomenon. Women do not come equipped with a little tag which indicates their productivity, once and for all, in a manner from which no dissent is possible. (Nor, of course, do men.) Productivity, rather, is a continually changing phenomenon which varies with, for example, education, intelligence, age, experience, presence or absence of complementary factors of production, which can only be partially quantified, as well as with such factors as motivation and determination, which are completely incapable of exact measurement.
• 16This is not to say it is completely implausible to support the position that EPFEW laws are required. There is ample evidence to suggest that male and female compensation and promotion rates differ. For example, the overall female/male wage ratio for all employees in Canada was 485 in 1979. That is, females, on average, earned only 48.5 percent as much as males. The question is whether or not this reflects an inherent problem in the labor market. The proponents of EPFEW apparently think so. But it is an error to conclude, from such information, that the state of affairs is a result of conscious and hostile human design (i.e., employer discrimination against women), that this is disgraceful and unfair, and that therefore a determined effort on the part of government is required to “right these wrongs.” Consider, in this regard, the statement of no less an authority than Dr. Ratna Ray, Director, Women’s Bureau, Labour Canada: