A Cure Worse Than The Disease: Fighting Discrimination Through Government Control
Affirmative Action Is an Assault on Freedom
DECEMBER 01, 2000 by WILLIAM H. PETERSON
“America’s constant curse.”
So the British weekly The Economist brands racism long after the appearance of “affirmative action,” the official policy unleashed by the Civil Rights Act of 1964 and designed to “correct” historical injustices by instituting preferences for members of certain “protected classes.” This law and its legal embellishments blithely ignore the First Amendment guarantee of freedom of assembly, while outlawing discrimination on grounds of race, gender, age, disability, sexual preference, religion, or national origin. Far from eradicating racism, the government’s policy actually reinforces it.
The goals sound lofty, but many writers have remarked on the impossibility of righting old wrongs when neither those who perpetrated them nor the victims are around. And even if the ends were good, are the means acceptable? That question is at the heart of this book, a tour de force of solid reasoning, honesty, and courage.
Lester O’Shea, a California entrepreneur and lawyer, contends that it is counterproductive to bring the full might of the state crashing down on people, business firms, or other institutions that ostensibly “victimize” blacks, women, the aged, the disabled, Latinos, gays, lesbians, and a host of other categories. Anti-discrimination laws necessarily mean substituting government power for individual judgment, and the result is unending litigation and bitterness.
In his foreword to the book, Professor Walter E. Williams sees government antidiscrimination laws and regulations as a zero-sum game that has bred a vast “multi-billion-dollar-a-year race industry . . . involving armies of lawyers, consultants, bureaucratic enforcers and compliance workers,” one that “has divided the country and harmed the ostensible beneficiaries by spreading defeatism, dependency and resentment.” O’Shea proceeds to make that indictment stick.
Consider, for example, the ludicrous 1970 U.S. Supreme Court decision that set the basis of racial quotas, Griggs v. Duke Power. The company had used racially neutral standards for employment qualification. For many jobs in the company, a high school diploma was a requirement. The plaintiffs complained that the high school diploma requirement was racially discriminatory because a higher percentage of blacks than whites had not finished high school. The High Court rewrote clear statutory law and held that racial discrimination could arise from unintended statistical differences between racial groupings in the Duke Power employment force. Duke Power was guilty of employment discrimination. With that decision, the idea that an employer had the right to set his own employment standards was eviscerated and “civil rights” lawyers went on a rampage looking for statistical disparities everywhere.
As a result of Griggs, many firms and government agencies have taken to hiring to fill quotas with little or no regard to qualifications. While the demagogues of racial politics call it “progress,” O’Shea is disturbed by the implications of lowering job standards just so we can say that minority group members are “rising” and we are becoming “more equal.”
O’Shea is especially good at exposing the verbal and statistical trickery in affirmative action proceedings and behind such bugaboos as “institutional racism,” “environmental racism,” “mortgage lending bias,” and “glass ceilings.” It is vital to the affirmative action industry that it continually find new cases to fan the flames of resentment and make itself look important. Therefore, complaints are conjured up out of thin air.
Life is unfair, O’Shea acknowledges, but affirmative action only makes it unfairer still. He quotes Shakespeare’s Hamlet, who protested “the whips and scorns of time/ The oppressor’s wrong, the proud man’s contumely . . . .”
The author’s solution is far from the timid tinkering with affirmative action that is the norm among politicians: He would repeal the anti-discrimination laws altogether. If people want to pursue a “more equal” society, let them do so through non-coercive means.
So I wish America would move with all deliberate speed into a new era of a colorblind society in which Americans, to quote from Martin Luther King, Jr.’s speech at the 1963 Civil Rights March on Washington, “will not be judged by the color of their skin but by the content of their character.” After reading Lester O’Shea’s book, you will understand why getting there requires that we do away with the assault on freedom known as “affirmative action.” 
William Peterson, adjunct scholar at the Heritage Foundation, is the Distinguished Lundy Professor Emeritus of Business Philosophy at Campbell University in North Carolina.