The Supreme Court decision forbidding open racial preferences under the guise of anti-discrimination in university admissions invites some fundamental questions. We can think about these issues by examining three ideas or propositions relating to the broad issue of discrimination.
The first idea is that a government-imposed mandate of affirmative action is government-imposed discrimination. Government discrimination in the name of non-discrimination is self-contradictory. The only exception that I believe can be rationally justified is the one proposed by James Buchanan and Friedrich Hayek: it can be necessary, to maintain a free society, to prevent it from being flooded by a large number of immigrants who don’t support individual liberty. The reason is not that they will eventually vote but, more importantly, that rules of conduct such as tolerance or respect of individual dignity cannot survive after a certain threshold is reached where many members of society don’t follow these rules. This reminds us of games (in game theory) where cooperators are overcome by defectors after the latter reach a certain proportion of the players.
The second idea is that forbidding all racial discrimination (as the Supreme Court is, it seems, prudently trying to do for university admissions) is more coherent than only allowing what some people feel is the good sort.
Many libertarians and classical liberals will be disturbed by the fact that the non-discrimination principle affirmed by the Supreme Court applies not only to public universities (which should go without saying), but also to private ones (if there are such things left). This leads us to a third idea: although private discrimination based on personal characteristics that are irrelevant to social cooperation in a free society reveals a bigoted ethics, the consequences of private bigotry will be attenuated by market competition. If many individuals in society have a bigoted “taste for discrimination” (to use Gary Becker’s terminology), there will be discrimination, but it will be attenuated by the reality that, on the market (or in voluntary social relations in general), discriminators have to pay for bigoted behavior through lost profits or other advantages.
Among the many historical examples was the case of railroad companies in the Jim Crow era: greed led them to not discriminate against black customers, until Southern populist-minded governments forced them to discriminate. (See my “Jim Crow: More Racist than the Railroads,” EconLog, December 18, 2022.) Another example was the Negro Motorist Green Book, published annually from 1936 to 1967, to inform traveling blacks where they would be welcome, in hotels, restaurants, gas stations, or even public beaches and picnic places, instead of being harassed and humiliated if not worse. (See my “Markets Against the Mob’s Purpose,” EconLog, February 15, 2020.) Zoning was invented in New York City to stop the market (free landowners and landlords) from letting blacks get into white neighborhoods. Before this interventionist innovation, a real estate agent wrote in the New York Times of August 4, 1898 (quoted in Jonathan Rothwell, A Republic of Equals: A Manifesto for a Just Society [Princeton University Press, 2019]):
I assure you there is no sentiment about the property owners bringing colored people here. It is purely a matter of dollars and cents and self-interest. The negroes pay their rent regularly, and many of the white people do not.
Free markets (which entail a quest for customers) mitigated the taste for discrimination and its enforcement by governments. Not ideal, but better than if no market had existed and governments had been able to enforce their discrimination policies more tightly. It is indeed because markets were naturally efficient at attenuating private discriminatory sentiments that governments intervened. What we know about human history suggests that liberalism works against bigoted discrimination, while authoritarianism fuels it. Bigotry from society’s rulers is much worse than private bigotry.
If coercively imposing discrimination under the guise of anti-discrimination is illegitimate, as the Court ruled, and coercively imposing non-discrimination is very questionable from a classical liberal or libertarian viewpoint, why not laissez-faire?
In laissez-faire regime, public universities, if they exist, would of course be subject to a cardinal principle of liberal law: no government discrimination (and thus no affirmative action) against citizens (and even against non-citizens in many cases). As for private universities, each should be free to determine its own admission criteria. We could expect real competition and diversity among them. It would be surprising anyway if, in the intellectual climate of a university worth its name, bigoted morals could thrive.
As Paul Moreno notes in an interesting article at Law & Liberty, “racial proportionalism,” may well survive, in universities as elsewhere, under the label of “diversity, equity, and inclusion.” I have no illusion about the political feasibility of the laissez-faire ideal in the short run, but it is not a totally unrealistic hope for the longer term.
READER COMMENTS
Thomas L Hutcheson
Jul 4 2023 at 7:33am
Off the main subject, but why would one expect expect immigrants who self select for where they immigrate to, to be more inclined to defect from societal norms than resident members of the society?
Isn’t the “problem” that Harvard had with Asians that they had adopted the social norm of studying hard and getting good grades and high ST scores “too well?”
Pierre Lemieux
Jul 4 2023 at 10:55am
Thomas: That’s a good comment even if off the main topic (and very much in the spirit of July 4!) My only reason for introducing this issue was to foreclose the objection that discrimination in the name of non-discrimination is like intolerance in the name of tolerance, suggesting it is not self-contradictory in all cases. Immigration is a vast and complex topic and, I think, involves a matter of degree. One issue is: Self-selection on the basis of which of the numerous possible criteria? For example, self-selection on the basis of the love of wokeness would not help the maintenance or furtherance of a free society.
Off the off-main topic: What does “societal” mean? What does “societal norms” add to the social rules discussed by Buchanan or Hayek (and, I would guess, by nearly all liberal economists historically)?
Mark Brady
Jul 4 2023 at 2:09pm
“Societal” is a synonym for “social” and the Oxford English Dictionary records the word being used as early as 1843.
Pierre Lemieux
Jul 4 2023 at 2:57pm
Thanks, Mark, but I think you will rediscover that if you click “societal” in my comment. I even wonder if you hadn’t helped me find the treasure at the time! In that original post, I also mention that “societal” has a more scientific look-and-feel, especially to people who haven’t studied economics!
Mark Brady
Jul 4 2023 at 4:26pm
Yes, I have written to you on this topic, and repeatedly!
Peter
Jul 12 2023 at 5:11pm
Using a bit of a reduction ad absurdum case, but real nevertheless at some unknown threshold, it’s not about “immigrants” defecting from social norms but supplanting them due to large numbers. To my initial point, if twenty five million Americans just up and immigrated to North Korea tomorrow of their own free will via open borders, not only would the North Korean government dissolve within the year but so would the existing social norms of that nation. Same goes via the democratic process should even 25% the population of Saudi Arabia or Taliban Afghanis up and move to Switzerland as they would bring their own social norms with them and have enough density to not integrate / take over the political process. This is the foundation of the good old “You can’t negotiate with Bolsheviks” saying as you end up with the end of democracy ala White Russia, Caesar over the Rubicon, Nazi Germany, etc. Hayek’s point was about large numbers of immigrants, not onesies and twosies.
While nobody knows the magical straw, it’s a real concern nevertheless and you already see it at the margins along national land borders. To use a more pungent example, the US has had a exponential rise in non-woke female genital mutilation since the admittance of Somalia refugees during the 1990’s. Now is it to the level of a national issue, of course not, the case are in the thousands but an increase from one per year to thousands per year simply because a mass group of immigrants came and refused to adapt the social norms of their new home ever after generations is nevertheless an easy example of the concern. Non issue with the limited numbers, major issue if the entire population of Somalia immigrated to Minnesota tomorrow complete with voting rights.
Multiculturalism doesn’t exist in the long term, cultures merge, get subsumed, or supplant hence if you have a concern about your national cultural, it’s simply in your interest to limit immigration, if even moderate numbers, from single sources and actively discriminate against ones with competing abhorrent cultural norms. THAT is the concern for folk that care about that sort of stuff.
Pierre Lemieux
Jul 13 2023 at 12:36am
Peter: I would try to attenuate two of your points or ways of speaking. First, I would not use “social norms” which, in my opinion, feels too “sociological” and authoritarian. Speaking instead of “rules of conduct” (Hayek) or rules/ethics of reciprocity (Buchanan) is, I would argue, safer and more productive. Second, in the same perspective, I think that the opposition to multiculturalism involves some risk. In a free society, each individual is a culture; a free society is multicultural. But up to a certain point–the point where a society of equally free individuals cannot be maintained. This is a complicated topic, and the number of native Americans (or Frenchmen, etc.) who, often perhaps by ignorance, work against the maintenance of a free society does not simplify the problem.
Craig
Jul 4 2023 at 11:37am
I am glad that you chose this same topic. I have often found myself betwixt and between with certain current events and the recent decision is no different. It turns me one way, then another and yet another with a twist.
1. Overall I am an opponent of affirmative action and to the extent this is a blow to affirmative action, I am happy. I will also admit that the counter-argument with respect to legacy admissions has considerabke weight in this context.
2. That being said Harvard is not a government institution and shoukd be free to discriminate as it sees fit.
3. But wait, Harvard’s students do receive student loans and to the extent Harvard relies on those loan disbursements, the lender, the government can impose conditions on lending, ie that the borrower spends the loan on institutions that are: accredited, have or don’t have affirmative action policies, which follow the non-discrimation statutes with respect to employment, etc
4. Hold on, I almost forgot, I’m a small government conservative. The federal government shouldn’t be involved in ANY of this, AT ALL.
Unfortunately public discourse has this impact on me where I feel like the entire debate, lock, stock and barrel rests on a shaky foundation, at best.
So that brings me back to point 1. Should I be happy about this decision or not? If I’m being honest with myself, and trust me I often whisper white lies to my alterego, I am not so sure.
Perhaps I can fall back on the Professor’s refrain that I have adopted for myself…dirigisme begets dirigisme begets even more dirigisme? (c) Craig, 2023, All rights reserved.
steve
Jul 4 2023 at 11:40am
“discriminators have to pay for bigoted behavior through lost profits or other advantages.”
I guess I can se why you would want to believe that but I dont think it’s really true. No one really cared if someone made money off of black people as long as they followed the unwritten rules and didnt actually treat them the same as white people. You could feed them, just needed to make sure that it appeared that white people were getting superior service/food. You could let them have rooms in your hotel, but they couldn’t have rooms white people used. If someone broke the unwritten rules they could face informal actions, or they could be formalized into a law.
“Government discrimination in the name of non-discrimination is self-contradictory.”
Yet it existed for hundreds of years in the US for blacks. If you think that the idea justice delayed is justice denied its hard to think of any remedies that would not result in some kind of discrimination against white people, or should we not have attempted any remedy?
Steve
Jon Murphy
Jul 4 2023 at 11:51am
There’s lots of empirical evidence to support it. A good place to start would be Gary Becker’s book The Economics of Discrimination. Thomas Sowell has a lot. Walter Williams, too. Armen Alchian and Ruben Kessel have a paper looking at female and Jewish hiring.
David Seltzer
Jul 4 2023 at 4:41pm
Jon, per Becker’s example of discrimination wherein he avoided race but referenced nepotism. A restaurant owner was going to hire a dish washer at 10 bucks an hour and the owner’s marginal revenue would increase to $15 an hour. The owner’s wife wanted her cousin hired instead. As the cousin was less skilled, the owner’s marginal increase was only $12 an hour. A $3 marginal loss of productivity. My personal experience. My father owned a thriving industrial supply concern in a NW Indiana steel town. My uncle wanted my father to hire my uncle’s son for the summer. My father refused. He told my uncle there were more qualified hires and said hiring my uncle’s son would be a net loss. In fact, when my father’s Latin employee returned from university for the summer, he went to work at the warehouse. Race was never the issue. Productivity was.
Atanu Dey
Jul 4 2023 at 12:02pm
Beg your pardon, steve, but that’s not true. The government did discriminate against blacks for “hundreds of years” but that policy was never positioned as any kind of non-discrimination; it was avowedly to deny them equal rights.
It is only in the affirmative action era that discrimination in the name of non-discrimination is the logical absurdity that Pierre points out.
steve
Jul 4 2023 at 10:54pm
No offense but seems like a trivial difference for academics to argue over. Call it what you want but black people could not attend schools or obtain jobs in many places not based upon merit but just because of their race.
Steve
Pierre Lemieux
Jul 4 2023 at 12:57pm
Steve: Let me add a methodological point to Jon’s important response. Not only would I like to believe that free markets attenuate discrimination, but I would love to believe that they always eliminate it (speaking of discrimination about personal characteristics that are irrelevant to cooperation in a free society). Unfortunately, I cannot because Gary Becker taught me the consequences of a possible “taste for discrimination” in some individuals’ preferences. I would also like to believe that anarchy is possible, but the proposition is not as clear to me as it once was. And so forth. Here is my methodological point: a big part of the search for the truth is to try to distinguish what you would like to believe and what you have reasons to believe.
Dylan
Jul 4 2023 at 1:23pm
Pierre, I see a lot on this site referencing Becker’s work on discrimination, but far less (with the exception of a few posts by Bryan Caplan) on statistical discrimination. Which to me seems to be far more insidious, in that the idea that everyone acting rationally and without bias still leads to discriminatory and potentially self-reinforcing results. What are your thoughts on this?
Pierre Lemieux
Jul 4 2023 at 4:23pm
Interesting comment, Dylan. Statistical discrimination (judging an individual through the average statistics of a group he belongs to) is unavoidable in practice because information has a cost, and the more granular information one seeks, the higher the cost. If, in late 19th-century New York City, the blacks paid their rents on average more regularly than the whites, landlords would statistically discriminate in favor of a black tenant, ceteris paribus.
The more liberal-individualist a society is, the less statistical discrimination one would expect, for many reasons: (1) Individuals are used to an ethics of reciprocity, i.e., judging an individual as worthy of respect and cooperation until the proof of the contrary. (2) Each individual is a member of several groups, so that a single membership conveys relatively little information. (3) Suppliers and other market participants will have financial incentives to deal with individuals from underserved groups. (4) Individuals will have some incentives to find information on underserved individuals who do not share the bad characteristics of (one of) their groups.
These incentives are much less important in political competition. Just consider that 30% of black American adults (imagine the proportion of black men!) have felony records compared to 5% of white adults. This certainly generates much statistical discrimination. But much of the difference is due to the war on drugs, police behavior, and a host of other state regulations (including minimum wages and professional licensure). See my Regulation review of Jonathan Rothwell’s A Republic of Equals.
Dylan
Jul 5 2023 at 7:26am
Thanks for the reply, Pierre.
Your 2nd paragraph needs some elucidation and maybe even empirical evidence for me to fully agree, but I think that’s more than we have room for in the comments section, so I’ll focus on the third paragraph.
I agree that much of the discrimination is due to state actions; past and current. But those tend to be both self-reinforcing and can bleed out into other areas with no direct state intervention. Take what seems to be a sensible policy for many employers to not hire felons, that’s going to disproportionately effect black people, even if they are on average more law abiding than whites (according to the book review you linked to in your comment).
One way to view the DEI movement is as a shift in cultural norms making it more costly to practice certain types of statistical discrimination. A personal example; a couple of years ago I organized a panel of speakers for an event. We were putting this together last minute and had no budget. The result was a panel of highly qualified experts made up of 4 middle aged white men and one white woman from my personal network. After the event we had several people criticize our lack of diversity and it took some effort to smooth things over. This was all norms based criticism with no government intervention necessary.
Now, this isn’t really statistical discrimination as Pierre defined it above, I hadn’t been ruling anyone out based on attributes of their group, I just went with the first people that said yes drawn from my personal networks, which had a tendency to mostly look like me. However, it certainly made me aware that taking shortcuts, whether in putting together a panel or making hiring decisions, could come with costs down the road that outweighed the minimal near term benefits.
Richard Fulmer
Jul 5 2023 at 8:56am
During Apartheid, South African laws required that blacks be paid less than whites, creating an incentive for companies to hire black workers in place of whites.
Though the companies were all owned by whites – and probably bigoted whites – they preferred to hire the, lower-paid, black workers.
In response, the government passed “affirmative action” laws requiring that companies’ workforces include at least a specified percentage of whites.
Economist Walter E. Williams who studied Apartheid in South Africa, asked, “Why were laws needed to force racists to act like racists?” The answer is that discrimination is expensive.
While personal prejudice and peer pressure might prevent a majority of white employers from hiring blacks, all that’s needed to effect change is a small minority who are willing to put their profits ahead of their biases. Eventually, other businesses would be forced to either follow suit or go bankrupt. The laws were “necessary” to keep this from happening.
I believe that America’s worst crimes – slavery, Jim Crow, mistreatment of Native Americans, discrimination against Jews and others, eugenics – were not the direct result of divisions by race, sex, religion, wealth, or position. Instead they were the result of the ability of people divided along such lines to bend government power to serve their own interests, ideas, and prejudices.
Pierre Lemieux
Jul 5 2023 at 10:27am
Richard: Yes, and the remark from Anthony de Jasay that I quoted elsewhere in my responses is especially relevant here: “When the state cannot please everybody, it will choose whom it had better please.” So the state sided with slave traders and owners instead of siding with the slaves.
David Seltzer
Jul 4 2023 at 4:13pm
Pierre: Yes it seems the contradiction is, Affirmative Action is racial discrimination as a remedy for racial discrimination.
Pierre Lemieux
Jul 4 2023 at 4:37pm
David: Yes, imposed affirmative action is government discrimination against the bad groups of people. It is the major argument of Anthony de Jasay’s theory of the state that, except for the “capitalist state” (the minimal state), the state’s business is to harm some groups in order to favor others. And “when the state cannot please everybody, it will choose whom it had better please.” The state is naturally an “adversary state.”
steve
Jul 4 2023 at 10:46pm
Then it appears what you are supporting is that those harmed by hundreds of years of discrimination are not entitled to any kind of remedy form those who imposed and benefitted from that discrimination.
Steve
Richard Fulmer
Jul 6 2023 at 2:42am
While the slaves themselves were certainly harmed – and terribly so – by slavery, it’s not at all clear that their descendants were. Would you rather be born black today in the United States or in Ethiopia, Zimbabwe, Chad, or Somalia? Over half of all black Americans are middle class or higher. And most poor blacks here are materially far better off than are most people living in Sub-Saharan Africa.
Black Americans dominate many sports in this country, and they have an outsized influence on music and entertainment. I’m in France right now, and I see advertisements for jazz festivals. I’ve heard rap music in French, German, Russian, and Spanish.
Contemporary black Americans have, however, been harmed by the government’s paternalistic policies. Prior to the Great Society, marriage was stronger for black couples than for whites. Welfare’s “marriage penalties” and, until recently, those imposed by the income tax, have helped to destroy the black family in this country. Add to that poor education by public schools; employment barriers created by minimum wage laws, job licensing, and regulations on business start ups; and housing restrictions caused by rent control, zoning, and onerous building codes.
Reparations would be little more than an extension of the welfare state that has been so destructive.
Government is capable of fostering a prosperous society by protecting its citizens, defining and protecting private property, establishing and defending the rule of law, and keeping spending and taxes low. It is not capable of reversing history or of redressing all of its wrongs. When government tries to do that which it cannot, it will fail to do that which it can.
Sinclair Davidson
Jul 4 2023 at 7:17pm
The thing is that ‘competition’ did not eliminate racism is university selection. That is to be expected – competition can only eliminate waste and inefficiency if the organisation is competing on those margins.
The elite universities do not compete for students – they compete for research rankings and endowments and faculty reputation and the like.
They are typical monopolists – they restrict access, get students to form a queue and then select from the queue. They do not face a shortage of highly qualified potential students. Now sure, two elite universities may both compete for particular students, but that is only after they have already restricted supply.
So I have no reason to believe that Becker’s otherwise excellent analysis should apply to universities. As such, racism in university selection is a market failure and government intervention (via the courts mind you and not the executive) is entirely appropriate.
Jon Murphy
Jul 4 2023 at 9:05pm
I don’t see why given your comment. Why wouldn’t discrimination have the same costly effects on research?
Pierre Lemieux
Jul 4 2023 at 9:41pm
Sinc: Nice to see you on EconLog! Your closing parenthetical clause may redeem your interesting claim, but I am not sure. First, universities can only be metaphorical monopolies, like if I say that BMW has a monopoly on BMWs. There are close to 3,000 four-year colleges in America and about 60 research universities (some institutions are both). Second, as you know, market failure is a slippery concept, at least when not accompanied by its big brother, government failure. It is relatively recently that the US government (not to speak of Southern state governments) has started fighting discrimination instead of encouraging it. Perhaps if we go back to the Civil War and forget the hundred years that followed, and then close our eyes on affirmative action, we can say it’s a success, but it is a checkered success with lots of government failures. (And Jon has a pointed question.)
steve
Jul 4 2023 at 10:51pm
But the issue is not acceptance to college per se, but to the selective ones. Blacks were well able to get into non-selective schools. For the top 20-40 schools we are talking about there is a very limited supply of slots and way more applicants who want to attend. You can argue that its all signaling, you dont like it, other schools are just as good or better, but reality is that there has been a major economic advantage to attending those schools.
Steve
Richard Fulmer
Jul 6 2023 at 10:30am
There is an advantage to graduating from an elite school, but not to merely attending one. Many minority students selected for the ivy leagues are in the top ten percent of American students, but in the bottom ten percent of those admitted. Some would be far better off graduating from a good school than dropping out of an elite one.
John Hall
Jul 5 2023 at 8:22am
With respect to your public vs. private distinction, the discrimination rules in Title VI of the Civil Rights Act of 1964 applies to any education institution that receives federal assistance. The Gorsuch concurring opinion made the argument that this provision applies to the admissions policy of both North Carolina and Harvard. Since both of those universities take federal money, it doesn’t specifically address ones that don’t.
The majority opinion focuses doesn’t focus on TItle VI since prior precedent applies the 14th amendment’s Equal Protection Clause when the institution receives federal funding, See footnote 2 (page 14 of https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf):
Title VI provides that “[n]o person in the United States shall, on the
ground of race, color, or national origin, be excluded from participation
in, be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance.” 42 U. S. C.
§2000d. “We have explained that discrimination that violates the Equal
Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI.”
Gratz v. Bollinger, 539 U. S. 244, 276, n. 23 (2003). Although JUSTICE
GORSUCH questions that proposition, no party asks us to reconsider it.
We accordingly evaluate Harvard’s admissions program under the standards of the Equal Protection Clause itself.
In other words, the court’s opinion doesn’t really apply to universities that don’t receive federal funding.
Pierre Lemieux
Jul 5 2023 at 3:05pm
John: Thanks for this useful summary. It is an interesting question as to whether any institution that “accepts federal funds” should or not be considered private in a society heavily subsidized if not bribed by government. Does accepting federal funds include student loans guaranteed by the feds?
nobody.really
Jul 7 2023 at 5:15am
By this standard, ponder when your own university become “worth its name.” I think Oberlin began admitting women on the same basis as men in 1837, while Columbia didn’t begin admitting women until 1983.
Moreover, I suspect that most university cultures today support affirmative action.
If any of this counts as “bigoted morals,” then evidence suggests that such morals are more durable than Pierre Lemieux imagines.
Comments are closed.