Myth of the racist cabbie - rational discrimination versus racism

National Review, Oct 9, 1995 by Dinesh D'Souza

We have, in fact, three models of how to deal with the persistence of discrimination. The first is affirmative action. Some advocates, such as legal scholar David Strauss, argue that racial preferences are an essential remedy for rational discrimination. Yet this argument is specious. After all, rational discrimination is objectionable because it treats competent individuals as incompetent on account of their involuntary membership in a disfavored group. This is hardly remedied by racial preferences which treat comparatively incompetent individuals as competent on account of their membership in a favored group.

The second approach is to make all discrimination, including rational discrimination, illegal in the public and private sector. This was Martin Luther King's solution, and it remains attractive to most Americans. Yet such a solution, although a vast improvement over the current system of racial preferences, would require massive state intervention in the private sector to unmask and punish discriminators, including minority firms which prefer to hire members of their own group, and other employers whose only sin amounts to engaging in rational behavior.

Then there is a third, and venerable option which was once considered liberal, but which has been virtually forgotten. In a free society, which maintains a distinction between the private and public sphere, rational discrimination is far more problematic when perpetrated by institutions of government than by private individuals and institutions. The reason is that in a democracy the government is responsible to all its citizens, who have a right to demand that they be treated as individuals equally under the law. Thus a new option emerges: the government should be strictly race- neutral, but private actors would be free to discriminate. In this scenario, rational discrimination would be legal, and so would private-sector affirmative action.

I can already hear the gasps of civil-rights activists, who are so wedded to the paradigm of old struggles that they cannot see what is obvious to the generation born after the civil-rights movement: Bull Connor is dead, and the ancien regime is finished. True, there will be employers who will refuse to hire blacks, and some may even post signs that say "No African Americans Need Apply." So what? Irrational discrimination of this sort is harmful only when it is comprehensive in scope -- when everyone discriminates. On the other hand, if only some employers discriminate, then competitive markets impose the main financial cost of discrimination on the discriminator, where it belongs.

Thus we arrive at a supreme irony: perhaps the best way to save affirmative action is to abolish the civil-rights laws, or rather, to limit their employment provisions to government conduct. This would be not a repudiation of the civil-rights movement but its natural fulfillment. Only such a bold strategy establishes a framework of state-neutrality and personal freedom that permits citizens of all backgrounds to pursue their competing utopias, and offers a realistic way out of our current thicket.