The Slippery Slope of Anti-Discrimination Laws
By Pierre Lemieux
Non-discrimination can easily come to mean discrimination. Suppose a law bans discrimination against individuals of Group 1. If that means the interdiction of imposing special obstacles or constraints on individuals of Group 1, it is pretty clear what non-discrimination means. But suppose that non-discrimination against Group 1 means giving privileges (in terms, say, of affirmative action) to individuals who are part of that group. The consequence is to directly harm individuals of Group 2, who will resent being discriminated against for non-discrimination reasons. With this slip in the meaning of non-discrimination, discrimination has just been shifted from Group 1 to Group 2: the latter is now discriminated against in the name of non-discrimination against the former.
A Senate vote of last week illustrated that, as editorialized by the Wall Street Journal (“A Revealing Vote on Anti-Asian Bias,” April 25, 2021). The occasion is a hate-crime bill that cleared the Senate with 94 votes against 1. But a Republican amendment to the bill had been defeated along party lines by 49 votes against 48:
The GOP amendment was a single sentence. It said no college “may receive any Federal funding if the institution has a policy in place or engages in a practice that discriminates against Asian Americans in recruitment, applicant review, or admissions.”
The editorial continues:
Hawaii Sen. Mazie Hirono said on the floor that the amendment was “a transparent and cynical attack on longstanding admission policies that serve to increase diversity.” She means elite college policies that have been challenged in court by Asian-American students for penalizing them in admissions. … The amendment surely would have passed if the text had substituted another minority group for “Asian Americans.” Yet it did not get a single Democratic vote.
Remarkable but not unexpected. If non-discrimination is taken to mean discrimination, any attempt to stop the discrimination will be considered as “a transparent and cynical attach” against non-discrimination.
In Anthony de Jasay’s theory of the state, this slippery slope is unavoidable: because the interventionist state cannot please everybody, it will discriminate in favor of the clienteles that most support it (or most support the government in place) and, in the process, discriminate against other groups. Some people see fallacies in any form of reasoning, but a slippery-slope argument is obviously not a fallacy when incentives and the logic of institutions lead to its conclusion. As de Jasay wrote,
When the state cannot please everybody, it will choose whom it had better please.
Today, the state had better please the woke mob, partly made of rich kids who see the world in black and white. The intellectual and business establishment is scared of them. A comparison with China under the cultural revolution is not a total exaggeration.
Preventing bigoted discrimination against minorities (racial or other) is certainly a worthy ideal. The problem is that anti-discrimination laws will likely become discriminatory. Using Gary Becker’s theory of discrimination, we can see that free markets reduce discrimination more effectively because they automatically oblige the discriminators to pay in lost profits a price for their discrimination, and without creating new discrimination. If you want to learn a bit more on this last topic, you may want to have a look at my Econlog posts “Jim Crow: More Racist than the Railroads,” “Markets Against the Mob’s Purpose,” and “Discrimination and Harvard Discrimination.”