Posted by David Bernstein: Ricci and the Inevitability of Affirmative Action: http://volokh.com/archives/archive_2009_06_28-2009_07_04.shtml#1246362837
Below is something I wrote in a book review a while back, that's still pertinent today. The one thing I'd add is that because whites remain the majority, if antidiscrimination laws were applied strictly neutrally to permit reverse discrimination lawsuits, and whites sued at even one-quarter of the rate of African Americans, there would be more discrimination lawsuits by whites than by blacks. Employers would adjust their employment policies accordingly, to the benefit of whites (to avoid lawsuits) and the detriment of African Americans. Also, the problem discussed below becomes especially acute when the government is the employer, and civil service rules require an objective test. Here it is: Perhaps [the authors] would both join most conservatives in supporting a strict, neutral civil rights law, under which whites would have the same right to sue for discrimination as minorities. Whites would be able to win lawsuits based on indirect and statistical evidence of discrimination, as protected minorities do currently. Under such a regime, employers seeking to avoid lawsuits would begin to hire workers based purely on objective credentials [as government agencies try to do, see Ricci]. Not coincidentally, blacks and members of other relatively impoverished and less-educated groups have fewer formal credentials than whites. Hence, neutral civil rights laws steer employers away from giving applicants with inferior paper credentials a chance. Blacks, Hispanics, and American Indians are therefore probably better off without civil rights laws than with harsh, neutral laws that do not permit affirmative action. It would be possible to mitigate this result by allowing people to win civil rights lawsuits only when there is direct evidence of blatant discrimination. Back in 1964, many supporters of the Civil Rights Act seemed to have this kind of regime in mind. Within a few years, however, blatant, open discrimination of the (once common) "No Dogs or Jews allowed" variety had disappeared almost entirely. Today, even ifthe civil rights laws were all repealed, this type of discrimination would be unlikely to reappear except in very isolated pockets. Civil rights activists are therefore correct when they accuse conservatives who oppose affirmative action of essentially opposing civil rights laws. The only types of civil rights laws that apply to private conduct that conservatives can support would either actually harm minorities, or would be almost wholly ineffectual. The debate over affirmative action would be far more honest if both civil rights activists and conservatives would acknowledge that truly neutral civil rights laws are simply not a viable option. Civil rights activists are therefore correct when they accuse conservatives who oppose affirmative action of essentially opposing civil rights laws. The only types of civil rights laws that apply to private conduct that conservatives can support would either actually harm minorities, or would be almost wholly ineffectual. The debate over affirmative action would be far more honest if both civil rights activists and conservatives would acknowledge that truly neutral civil rights laws are simply not a viable option. _______________________________________________ Volokh mailing list [email protected] http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
