Mr. Leef is Associate Professor of Law and Economics at Northwood Institute, Midland, Michigan.
“Discrimination” has become a politically and emotionally charged word. To accuse someone of discrimination these days is to accuse him of vile, almost criminal behavior. To say that you advocate legislation to outlaw discrimination and punish those who engage in it will almost surely earn you high praise for your “enlightened,” “for-ward-looking,” and “compassionate” point of view. We today devote considerable resources to an endless battle against discrimination. Failure to support this battle with enough enthusiasm will quickly earn you an “anti-civil fights” label.
I maintain that the state of affairs I have described above is foolishness based on some obvious intellectual errors. In the following essay, I hope to make clear exactly why I have reached this conclusion, and what conclusions should be drawn regarding discrimination.
First, I approach this subject from the perspective of a liberal—in the older and correct political meaning of the term. That is, I believe each person has the inherent right to live his life according to his own choices, so long as he does not violate the equal rights of others to do the same. Each of us has a natural right, as John Locke put it, to life, liberty, and property. It is necessarily wrongful for others, therefore, to deprive you of your life, to prevent you from acting as you choose, or to seize or destroy any property you have justly acquired.
This philosophy, I hasten to add, is not a prescription for utopia. Even if everyone consistently adhered to it, there would still be plenty of unhappiness, frustration, and disappointment in the world. Your freedom of action entitles you to do a great many things which do not violate any of my rights (life, liberty, property, or particular rights I may have under contracts) and yet may displease me very much. You can shun my company, refuse my business overtures, criticize my political preferences, or outcompete me, to name just a few. Your actions may be wise or stupid, but you are entitled to take them.
Thus, a world of maximum liberty is not going to be a world of perfect contentment. But it is (or would be) a world affording each person, no matter what his station in life, the best opportunity to live his life happily. Furthermore, it would be a world free of violence and the threat thereof—certainly a most desirable situation.
If you accept my premises regarding human fights, let’s see where logic leads us. (Incidentally, I have never met anyone who doesn’t claim these rights for himself, who has no complaint about others acting to deprive him of his life, liberty, or property. If you claim these rights for yourself, intellectual consistency seems to dictate that you respect them in others.)
Assume that you want to buy a widget and there are four sellers nearby. You decide to do business with Seller 1. Without any doubt, you have acted within your fights. You have deprived no one of life, liberty, or property when you made your transaction with Seller 1. Sellers 2, 3, and 4 may be unhappy over your decision to patronize Seller 1, but you have not violated their rights.
In choosing to do business with Seller 1, and not the others, you have discriminated. That is the very meaning of discrimination—to favor one thing over another. Everyone does so every day. It is an unavoidable consequence of scarcity. And as we have just seen, it does not entail violation of anyone’s fights.
Now, does it make any difference why you made your choice? Returning to our shopping example, no one would think you had done anything wrong if you had looked at the goods available in the other stores and decided upon Seller 1 because he had a better price or quality. In that case, you had a good reason for making your choice.
But what if you had what many people would regard as a bad reason? Assume that Sellers 2, 3, and 4 are all members of a religion different from yours while Seller 1 happens to belong to your church. Or, we can make the example even stronger: you dislike the religion of Sellers, 2, 3, and 4, and do business with Seller 1 only because you are indifferent to his religion. This situation corresponds more closely, I believe, to what most people regard as “true” discrimination, a refusal to associate based upon some antipathy. If this is your reason for making your choice, have you violated anyone’s rights?
The answer is still no. You have no more deprived Sellers 2, 3, and 4 of anything to which they are entitled than when your decision was based upon a “good” reason. Since others are not entitled to your business, your reason for making your choice is irrelevant. You are within your fights to choose—discriminate—upon any criterion whatever. This conclusion follows from the assumption that an individual has a right to act in any way he chooses so long as he does not violate the rights of others.
Finally, consider this possibility. Suppose that you know of the existence of Sellers 2, 3, and 4, but you’ve heard some unfavorable comments about them, and always buy from Seller 1; whom you know. You haven’t even given Sellers 2, 3, and 4 a chance at your business. Have you violated their rights? No, you have not. If you agree that a person is free to use his time as he sees fit, you must say that hemay decide not to spend it in searching out information about others. In other words, nothing obligates us to ensure that every one of our de cisions is “fair” to everyone who might have been chosen. Making a choice in ignorance about the nature of those discriminated against may be foolish, but it does not violate anyone’s rights.
The Right to Choose
At this point, let’s note that to say that you have a right to make choices upon any criterion you like does not mean that others have to regard your choice as wise or good. If we go back to the case where you won’t buy from Sellers 2, 3, or 4 because you dislike their religion, most people, if they knew that was your reason, would conclude that you were irrational and perhaps even venal for your prejudice. Similarly, in the last case, others might think you a poor shopper for refusing even to consider any seller except the old tried and true. But none of that matters with regard to your right to choose.
If a buyer of goods and services (a consumer) is thus entitled to make any purchasing decision he wants for any reason, is not the same true of a seller? In fact, sellers are buyers too—buyers of labor services, among other things. Let us say that a businessman has a job opening and receives four applications. He can hire only one person. The others will be disappointed. If our previous reasoning was correct, do we not have to conclude that the businessman is entitled to choose among the applicants no matter what his criterion for selection might be? It’s his money and property that we’re talking about now, but remember that he has the same rights as you do; If the businessman wants to decide on the basis of race, religion, sex, or unverified assumptions, he is just as much within his fights as you were to buy according to your criteria. He may be acting foolishly (some might even argue immorally), but he does not violate the rights of those not chosen. Because the property is his, the right of choice is his.
What I think we have to conclude, then, is that discrimination in buying or selling or hiring or admitting or associating or any other peaceful endeavor should not be subject to legal restrictions. Since, as we have seen, making such choices is within a person’s rights, to force him by law to deal with people he would prefer not to deal with is to violate his rights.
We, of course, have such laws in the United States. Institutions (business firms mostly) which are found by a governmental agency to be guilty of discrimination can be required to begin an “affirmative action plan” whereby they agree to increase their employment of people from “underutilized” groups to a level acceptable to the government.
Such legislation is an assault upon freedom. it is one more step along the road to an engineered society—a society in which people may do as they please only as long as the results of their actions don’t upset the government’s plans. This I find to be a frightening prospect. It should even frighten the advocates of such governmental power. How can they be certain that the power to control, which they like so much when it is in their hands, will always be in their hands?
Furthermore, “anti-discrimination” laws, while meant to rectify injustices, can in fact be a source of injustice. To illustrate, suppose that a business owner interviews but decides not to hire a person who is in one of the “protected classes” under anti-discrimination law. Assume that the applicant who was hired had superior qualifications. But this is no guarantee that the disgruntled applicant who was not hired won’t begin legal action against the owner alleging that he or she was discriminated against—rejected solely because of race or sex for instance. The legal proceedings will be costly to the business owner even if he is vindicated, and it is entirely possible that be could lose the case. Discrimination cases, after all, depend on establishing the frame of mind of the decision-maker, and it is quite conceivable that the owner may be unable to successfully rebut the allegation of “discrimination.” All of this, I submit, is an injustice to the owner.
Also, the government’s favorite remedy for “discrimination,” namely “affirmative action,” can be unjust to future applicants. To fulfill his mandated quota of employees from a certain category, the employer may have to turn down a qualified applicant who fits into another category.
A very poor but hard-working Vietnamese refugee, for example, might have to be rejected because the employer needs to hire a member of some other ethnic group to avoid legal trouble with the government. The person hired may be less in need of this job and less industrious than the Vietnamese who was passed by, but individual merits are necessarily overlooked when the government insists on treating people as group members rather than as individuals. Whether the nation is any more just as a result of anti-discrimination laws is highly debatable. What is not debatable, however, is that the enforcement of such laws violates the fights of the people against whom they are enforced.
Overcoming Prejudice by Law
What arguments do the advocates of anti-discrimination laws put forward? Their principal contention seems to be that by compelling those who practice discrimination (in the pejorative sense) to associate with the people against whom they are prejudiced, the prejudice will be overcome. And if we agree that the world is a better place without irrational prejudice, haven’t we accomplished something good? Isn’t it narrow-minded to oppose such laws and the good they do just because it may be a violation of the rights of those compelled to associate against their will?
There are two problems with this argument. First, it assumes that there are beneficial results from forced association. While this is possible, the opposite may be true.
Suppose a seller is required by law to hire people from group Z until at least 10 per cent of his work force is composed of Zs. Perhaps this, in time, will show the seller that his prejudice against Zs was a mistake, and perhaps the non-Zs in the population who are prevented from getting a job with the seller will not be harmed or develop any prejudice against Zs as a result. If that happens, we then have less discrimination.
But the opposite may occur. The Zs whom the seller is forced to hire may prove to be worse employees than the non-Zs, and non-Zs who now find it more difficult to find jobs may blame their situation on the Zs. Even if you don’t think that it is wrong to force someone to associate with others against his will, you should be hesitant to assume that the plusses outweigh the minuses. Governmental policy which officially favors a certain group or groups is apt to impose hardships on all who are not favored. If our goal is to end prejudice and injustice, a policy which itself will produce some of those undesirable things is one we should hesitate to adopt.
The second problem with the statist argument for compelled association is that it assumes that there are no ways to reduce the amount of irrational prejudice in society except by resorting to force. So often, when people identify an imperfection in society, the immediate impulse is to call upon the state to remedy the imperfection, it is easy to understand this impulse. For decades, government has been quick to jump in with “solutions” to all sorts of perceived social ills. Many Americans are now, in effect, government junkies, it doesn’t even occur to them that non-governmental efforts to solve a problem are possible and might prove more effective.
For example, if you think a seller discriminates against Zs and you want him to stop, you could approach him and point out his folly, perhaps offering evidence of the success of Zs elsewhere. If that doesn’t work, you might offer him a financial incentive to hire one or more Zs (maybe you’d pay for their training). Still no results? You could publicize the seller’s refusal to go along with your reasonable proposals and encourage people to do business elsewhere. You could even go into competition against the discriminatory seller, employing people, including Zs, strictly on the basis of merit. Successful competitors often teach businesses lessons in an indelible way. And there are probably other things I haven’t thought of which could be done without turning to the coercive power of the government.
If it is possible to reduce or eliminate a problem without creating more governmental power, we should do so. To give any government the power to dictate with whom we will associate, and the power to try to change the way people think, is to create the potential for great tyranny. History is rich with examples of power which was originally conferred with the expectation that it would be used for good but later was turned to evil.
A Mere Sideshow?
Finally, I think it worthwhile to ask whether all the furor over “discrimination” isn’t beside the point. As I stated earlier, where you stand on anti-discrimination laws is for many people the litmus test of your commitment to civil rights and economic progress for minority groups. But what if such laws are neither necessary nor sufficient to bring about economic progress for the groups they are supposed to help? What if this is merely a noisy and unimportant sideshow, diverting attention from issues which really do matter? I think that is the case.
In the past, one unpopular ethnic group after another made dramatic economic progress in this country, despite the fact that there were no laws against discrimination and no affirmative action plans. And there certainly was much overt discrimination. But there was also nearly unrestricted economic freedom. In the nineteenth and early twentieth centuries the U.S. economy was substantially free of the oppressive burdens of taxation and regulation. Even though some doors were closed to a person due to discrimination, there were always a great many open. Opportunities abounded for each person to acquire skills and use them advantageously in a climate of economic freedom.
Conditions are different today. Due to the degeneration of many of our public schools, particularly in inner- city areas, huge numbers of young people now enter the labor force with extremely poor reading, writing, and mathematics skills. Such people will face discrimination all their lives—discrimination based upon their lack of ability. And due to occupational licensing, minimum wage legislation, and a web of other regulations, it is much harder for many people, especially from a “disadvantaged” background, to find a job and begin a career.
America is far less a land of opportunity than it once was, and it is this sad fact which the people who loudly proclaim their devotion to civil rights and justice for minority groups should be protesting. Rather than wasting time in trying to artificially engineer equality through state-enforced hiring quotas, I submit that they should join forces with those who ad vocate a free economy.
As long as our educational system is failing and there are numerous legal obstacles which hinder or prevent people from trying to better themselves in peaceful and productive ways, even the most vigorous enforcement of anti-discrimination laws will not improve the plight of the poor. On the other hand, if we open up our economy so that all can have a chance at advancement, there soon wouldn’t be even an appearance of a need for anti- discrimination laws.
To discriminate is simply to choose one thing over another. Unavoidably, we all discriminate every day, choosing with whom we will associate and with whom we will do business. Some of our choices are wise, and some are foolish, although we may not think so at the time. Some decisions are fair to others, and some appear to be quite unfair. But in all instances, the individual has the right to make the choice. With whom we choose to do business or choose to associate with socially are decisions which are entirely within our fights to make. No matter how we make such decisions or what our reasons are for making them, we do not violate the rights of any other person when we do so.
Laws against discrimination are inconsistent with the concept of a free society where the role of the government is to protect each citizen’s rights to life, liberty, and property. It is no pan of the protection of one person’s civil rights to interfere with another person’s freedom of choice. Anti-discrimination laws not only vio late the natural fights of those against whom they are enforced, they also create injustices. Instead of further expanding the power of government over the individual as these laws do, we should instead reform our present laws to eliminate barriers to opportunity. The solution to our problems is more freedom, not less. 
Ideas On Liberty
If man is to continue his self-improvement, he must be free to exercise the powers of choice with which he has been endowed. When discrimination is not allowed according to one’s wisdom and conscience, both discrimination and conscience will atrophy in the same manner as an unused muscle. Since man was given these faculties, it necessarily follows that he should use them and be personally responsible for the consequences of his choices. He must be free to either enjoy or endure the consequences of each decision, because the lesson it teaches is the sole purpose of experience—the best of all teachers.
When one’s fellow men interpose force and compulsions between him and the Source of his being—whether by the device of government or otherwise—it amounts to interrupting his self-improvement, in conflict with what seems to be the Divine design. Man must be left free to discriminate and to exercise his freedom of choice. This freedom is a virtue and not a vice. And freedom of choice sows the seeds of peace rather than of conflict.
—F. A. Harper