Anti-discrimination legislation, although well meant, has produced a horrible tangle of moral, legal, and practical issues. We need to sort out this tangle and completely rethink discrimination.
Discrimination was once considered good.
Discriminating people knew the difference between high quality and low-quality merchandise. They could tell good wine from mediocre.
Discrimination acquired today's negative connotation when it became associated with racial prejudice and segregation. Ironically, this newer meaning was the exact opposite of its previous meaning.
Bigots who assume that all Black people are the same and discriminate against them are failing to discriminate between the variety of characteristics — virtues and vices, abilities and disabilities — that actual Black individuals, like individuals of all races, have always had.
The more recent ideas about "discrimination" ignore the important distinction between morality and legality.
According to many religions and ethical systems, racial discrimination is clearly immoral. It is obviously incompatible with the Golden Rule.
Calling slavery "America's original sin" is, therefore, morally appropriate.
It seems natural to jump from its obvious immorality to the conclusion that racial discrimination should be illegal. But as St. Thomas Aquinas (1225-1274) noted, the side effects of trying to outlaw all sin may be worse than the benefits.
More fundamentally, the conclusion that discrimination should be illegal runs into a conflict between the nature of law and the nature of discrimination. A genuine law, which is enforceable by deprivations of life liberty, or property, must take the form of a general rule of action.
The problem here is that discrimination is not an action at all. It is merely a reason for action, a motive for action, or a goal of action.
If I don't hire a particular job applicant because he is a member of a racial minority, I am discriminating.
But if I don't hire the very same person because I consider another applicant to be more capable of doing the job, I am not discriminating, even though my action in both cases — not hiring that applicant — is exactly the same.
Actions can be observed, but motives for actions can only be inferred. So trying to outlaw discrimination poses impossible obstacles to the objective evaluations in which courts of law should engage.
Since laws must apply to actions and discrimination is not an action, the Civil Rights Act of 1964 and similar legislation purporting to make discrimination illegal are, therefore, legally illegitimate and impossible to enforce fairly.
I think there are steps that governments and individuals can take to reduce discrimination.
Passing anti-discrimination "laws" isn't one of them. But genuine laws whose goal is reducing or eliminating racial discrimination are quite possible.
For example, the parts of the 1964 Civil Rights Act applying to hotels, restaurants, and other places of public accommodation could be written as a simple general requirement that they accept customers first come, first served.
Whether or not their actions comply with this rule is completely observable, and their motives or goals would be totally irrelevant.
Untangling our ideas about discrimination requires one final distinction — between discrimination by private persons and groups and discrimination by government in its capacity as maker and enforcer of laws. Although private discrimination cannot be controlled by genuine laws no matter how immoral it is, discrimination by government as legislator is totally intolerable.
Since genuine laws must be truly general rules that apply to everyone, there is simply no place for discrimination in them.
Many liberals have been blind to this point because of their laudable devotion to getting rid of racial discrimination. Now that their efforts are being condemned as "DEI" and their so-called laws are being used to punish alleged discrimination against white people, these liberals might decide to think more deeply and systematically about how to make life fairer for all.
Perhaps they now will recognize the illegitimacy of trying to outlaw private discrimination.
Ironically, we can thank the current Republican administration for contributing to the liberals' education on this matter.
Now all that remains is to educate Republican leaders to think more deeply themselves about how to make life fairer and more productive for people of all races — and, hence, have a richer, more peaceful country?
Paul F. deLespinasse is Professor Emeritus of Political Science and Computer Science at Adrian College. Read Professor Paul F. deLespinasse's Reports — More Here.