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The Civil Rights
Laws & The Growth of Government
by
Harry Browne
The political process always manages to turn idealistic
dreams inside out. For an excellent example, look no
further than the civil rights laws passed in the last 40
years.
For almost a century before 1964, governments in many
southern states forced segregation on the people.
Government prohibited companies from providing racially
integrated facilities for their employees or customers.
Whites and blacks were forbidden by government to sit
together in restaurants or to use the same restrooms and
drinking fountains -- and in many cases were forbidden to
shop together or work together.
Civil rights advocates fought to repeal these state Jim
Crow laws, but they failed. So they appealed to the federal
government, which responded with the Civil Rights Act of
1964.
But this didn't simply repeal state laws compelling
segregation. It prohibited racial segregation --
voluntary or otherwise. Overnight, what had been mandatory
became forbidden. Neither before nor after the Civil Rights
Act were people free to make their own decisions about whom
they would associate with.
The civil rights movement wasn't opposed to using
government to coerce people. It merely wanted the
government to aim its force in a new direction.
Although the activists believed coercion served the noble
objective of bringing the races closer together, it was
coercion nonetheless.
The Giant Begins to Grow
And coercive laws never stand still. No matter what a law's
backers say at the time of passage, the law always
stretches in surprising directions. The expansion occurs on
at least two fronts:
1. The law almost always is enforced more broadly than
intended;
2. When government benefits one group, other groups are
encouraged to seek similar benefits.
And this is what happened to the civil rights laws.
In the first regard, the bureaucrats and courts set out to
enforce the laws zealously, seeking to root out any kind of
discrimination -- even though ending segregation, not
discrimination, was the motive behind the original law.
Companies were ordered not to consider race in any way when
making hiring decisions.
But usually the reasons for a business decision are hard to
prove. Unless a businessman is a noisy bigot, who can say
whether racial discrimination has affected his decision to
hire someone?
To avoid having to read minds, the enforcers examined
results to determine whether discrimination had occurred.
If you didn't have a suitable racial mix in your workforce
(or even among your customers), you were assumed to be
discriminating -- and the burden of proof was on you to
prove otherwise.
So an employer could avoid charges of discrimination only
by, in fact, discriminating -- by using quotas to assure
that he hired the right number of people of the right races
-- even though the original sponsors of the law had sworn
that quotas were no part of it. The law against segregation
had been transformed into a law requiring discrimination.
The law also encouraged other groups to demand similar
coverage. Once it was established that government should
punish racial discrimination, the door was open to using
government to punish anything similar. If it's wrong for an
employer, landlord, or organization to discriminate
according to race, it must be just as wrong to discriminate
according to gender.
So the coercion expanded to prohibit discrimination against
women -- and then religious believers, and then the
elderly, and then people with children, and then the
handicapped.
The New Aristocracy
Civil rights laws feed lucrative lawsuits. So every
imaginable group wants to be covered by the laws -- to be
eligible for generous settlements. There's pressure to
outlaw discrimination on the basis of sexual preference,
weight, looks, drug use, illness, criminal record,
citizenship, and many other categories. Everyone wants to
become part of the aristocracy.
And it is an aristocracy these groups are trying to join.
Once they're on the "A-List," they have special powers.
They can sue anyone who refuses to hire them, to rent an
apartment to them, or to sell his services to them -- and
maybe force him to pay thousands or millions of dollars in
punitive damages. No company can risk such a disaster by
offending someone in the aristocracy -- since almost any
mistake might be considered evidence of discrimination.
For example, in 1993 six U.S. Secret Service agents sued
the Denny's restaurant chain -- complaining they received
poor service because they're black. And how do they know
their color was the reason for the poor service? Because a
group of white people entered the restaurant at the same
time they did, and the white people finished their meals
before the blacks received their first course. To many
people this was proof of discrimination.
Now, if you happen to be a white male, you've probably
never felt such an insult. It's true you may have endured
dreadful service in a coffee shop -- perhaps many times. A
waiter may have refused to give you the time of day, lost
your order and forgotten you were even in the restaurant,
spent all his time flirting with a waitress, or refused to
take care of you until he had phoned his bookie.
The family at the next table may have eaten an entire meal
before anyone even asked for your order. And so you passed
the time counting the designs on the wallpaper.
But it isn't called discrimination if you aren't part of a
group that's been certified as oppressed. So you have to
blame it on a bad-tempered waiter, an overcrowded
restaurant, or poor management. Since you aren't part of
the aristocracy, there's no chance you were insulted
because of your race (or your religion, handicap, or any
other recognized status). You were insulted just because
you're you. And your only recourse is to find a coffee shop
that will treat you better.
The Denny's customers, however, could file a law suit --
and they did. To avoid a long, expensive trial and months
of unfavorable news coverage, Denny's settled out of court
and paid them $54 million. {1}
Neither you nor I was in the Denny's restaurant that night.
And we aren't mind readers. So we don't know whether the
waiter mistreated the Secret Service agents because of
their race. But we do know that if it's possible to get an
enormous payoff for claiming discrimination, many people
will try to get it -- whether or not they actually suffer
discrimination.
So we shouldn't be surprised that so many accusations are
made. And with such rewards available for minor insults,
it's not surprising that more and more groups demand to be
covered by the law.
Absurdity Becomes the Law
The civil rights laws are supposed to end discrimination
and segregation, and to promote harmony.
But coercion never produces harmony. How harmonious are
people who are being forced to act against their will? Most
likely, those who are coerced will resent those who benefit
from the coercion. This sets group against group; it
doesn't bring them together.
And if we accept coercion for one purpose, we'll be asked
to use it for others. Even if you can say "No" to the other
uses, some people will say "Yes," and others will say "Yes,
please, and make mine a double." The noble cause will be
stretched further and further until it eventually becomes
farce.
For example:
* A Chicago company was hauled before the Equal Employment
Opportunity Commission to explain why it failed to promote
a woman who claims she was discriminated against because of
the microchip in her tooth that allows her to communicate
with others.
* Then there's the man who sued his employer who fired him
for bringing a gun to work. He said he was covered by the
Americans for Disabilities Act (an outgrowth of the Civil
Rights Act of 1964) because he's under psychiatric care.
The case will be tried before a jury.
* A 220-pound woman has sued the Minnesota National Guard,
claiming that its 155-pound limit discriminates against her
eating disorder. {2}
* In 1993 a married couple was ejected from an airliner
(before takeoff) because they had screamed a string of
obscenities at other passengers. So they sued the airline,
claiming it had discriminated against them as sufferers of
a disease that makes them utter profanities. {3}
Has the law really been stretched so far?
No, it has been stretched even further.
In fact, it has been stretched all the way inside out. The
civil rights laws originated to end segregation of the
races in the South. But in 1992 a Florida court used these
laws to award a white woman permanent disability benefits --
ruling that her employer should have provided a
segregated workplace to accommodate her fear of blacks. {4}
Although the decision seems absurd, something of the kind
was inevitable. If coercion is used to protect the feelings
of black people, eventually it will be used to protect the
feelings of white people as well. Once government coerces
on behalf of one group of "victims," it will eventually
swing the club on behalf of almost every imaginable group.
You can't limit coercion to the uses you think are right.
So don't think of any of these cases as an example
of a government program gone wrong. Each is an example
of a government program -- period.
YOU'RE NOT A DICTATOR
I've used the Civil Rights Act as an example of the way a
well-intentioned government program grows and causes far
more problems than it solves. But it is just one example.
All government programs expand to encompass the political
demands of people who want to take advantage of its
benefits. And almost all government programs eventually do
the opposite of what their original backers had asked for.
Whatever social reform you may envision, the version the
government implements will be something completely
different. However lofty your purpose, it will be debased
by compromises in the legislature, in the administration of
the program by thousands of government employees, and in
the settling of the inevitable disputes.
Not only that, the program is likely to grow far bigger and
more complicated than what you wanted. And someday it will
evolve into a force opposite to your intentions.
You aren't a dictator. You can't control the actions of
politicians, bureaucrats, and judges.
Please remember that the next time you think some law will
solve some great social problem.
----
This article was adapted from a passage in the book "Why
Government Doesn't Work, the complete text of which is now
available for downloading at
www.LibertyFree.com.
----
{1} The Denny's suit was announced in the San Francisco
Examiner, May 24, 1993. The settlement was reported in The
New York Times, May 29, 1994, Section 4, page 4.
{2} The woman with the microchip in her tooth, the employee
who brought a gun to work, and the National Guard case were
all described in Reason magazine, May 1995, page 15.
{3} San Francisco Examiner, October 22, 1993.
{4} The case was brought against Fuqua Industries, Inc. in
Florida, and was reported in The Wall Street Journal,
December 23, 1992.
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