When Laws Discriminate


September 29, 1992|By CLARENCE PAGE

WASHINGTON — Washington. -- Debate over civil rights, pushed to the back burner in the presidential campaign, rages on the bookshelves, most provocatively in two new books that advance two ideologically opposed arguments for the same startling proposition: A repeal of the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964.

If nothing else, ''Forbidden Grounds: The Case Against Employment Discrimination Laws'' (Harvard University Press), by Joseph Epstein, a University of Chicago law professor, shows you do not have to be a Ku Klux Klan-style bigot to call for the repeal of job discrimination laws. You only have to be a passionately pro-free-market legal scholar who believes unshakeably in the magic of the marketplace as a more just form of social justice than what politicians and government bureaucrats can ever hope to provide through endless statutes, case law or regulation books.

Dream on, Professor. But, sorry, I'm getting ahead of myself.

Like most of us, Mr. Epstein says he supported Title VII for years, mostly because it overturned the Jim Crow racial-segregation laws that also got in the way of the free market by blocking free transactions between humans of different races.

But, also like many of us, he thinks the law went too far when it resulted in a growing number of decisions, regulations and compliance measures that forced employers to hire or promote workers for reasons other than their best business judgment. That makes business less competitive and ultimately destroys jobs and opportunities, which ironically penalizes those who the law was intended to protect.

Mr. Epstein thinks the market in this enlightened age provides a better way. Information is the enemy of bigotry, he says quite correctly, and employers who want to stay competitive have enough information these days to know better than to let characteristics like race, color or sex enter into a hiring or promotional decision when they are not germane to the job.

Even if racism, sexism and other hateful isms do not disappear overnight, they will always work against the best interests of businesses or labor unions that want to succeed in the marketplace.

Mr. Epstein admits his views are anything but politically correct. They almost ensure his ineligibility for the Supreme Court appointment for which he was rumored to be considered during the Reagan years. But he's not a kook. His work is eagerly embraced by pro-business enterprisers, Adam Smith free-marketeers and lawyer bashers seeking all manner of workable alternatives to government intrusions in the market.

He easily persuaded Harry V. Jaffa, senior fellow at California's Claremont Institute, who said in a Wall Street Journal review that he never doubted the desirability of a just enforcement of Title VII until he read Mr. Epstein's book. Now, Mr. Jaffa writes confidently, ''The steady pressure of self-interest in a free market is a better guarantee in the long run of a non-discriminatory labor market than any that can be engineered by a bureaucracy.''

Former Harvard law professor Derrick Bell, on the other hand, might well wonder what planet these two guys are coming from. In his ''Faces at the Bottom of the Well: The Permanence of Racism'' (Basic Books), Mr. Bell, an African-American and liberal enough to have sacrificed his Harvard seat in protest over the school's failure to award tenure to any non-white female law professors, lampoons Mr. Epstein's point of view by imagining a president who scraps existing discrimination laws only to replace them with a new ''Racial Preference Licensing Act.''

Instead of banning discrimination, the new law would license it. Employers, proprietors and landlords who want to discriminate would pay a fee and the proceeds would go into an equity fund to underwrite mortgages, scholarships and other equalizing benefits for blacks.

Outlandish? Well, as Mr. Bell points out, it is precisely what sponsors of the 1990 Fiesta Bowl did when they set up a black scholarship fund to lure the University of Louisville into playing in Arizona, in spite of the state's failure to approve a paid holiday to honor the late Martin Luther King Jr.

The views of Messrs. Epstein and Bell represent polar opposites of what passes for rational debate on race these days. Mr. Epstein seems to believe what opinion polls show most whites believe, that racism is an aberration, a flaw of individuals that is rapidly diminishing in its significant impact on day-to-day life.

Mr. Bell, by contrast, promotes a view polls show to be more common among blacks, that racism is a systemic flaw, permanently embedded in society and infecting even the attitudes of individuals who think they know better.

Most Americans fall somewhere in the murky middle. We know employers, union bosses and bank lenders, among others, judge whom they want to associate with for many reasons, some of which are rational, some not. If discrimination exacts an extra cost to doing business, many are quite ready and willing to pay it.

Still, we're getting better as a society because of steady improvements in the attitudes and behavior of countless individuals. We have a long way to go before we can think seriously about scrapping discrimination laws. First, we need to scrap irrational discrimination.

Clarence Page is a syndicated columnist.

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