Freedom, Discrimination and Culture

The following essay appeared in the July 1997 issue of Pinc.

Most objections to civil rights laws have to do with their empirical basis, with things like affirmative action that can be seen as abuses, or with libertarian principle and abstract economic reasoning. However cogent those objections are, they get shrugged off. It remains the popular impression that the laws are somehow irrefutably a "Good Thing", whatever particular objections a few social scientists or ideologues might invent. To address that impression broader arguments are needed. The essay therefore considers the effect of the laws on social life in general—on concrete human relations, on morality, on political life, and on the health of families, businesses and other organizations.

The argument is that in a variety of ways the laws make life much worse for almost all of us. By tying the civil rights laws to trends in American life that most people are uneasy about the essay presents a kind of argument that I believe will be useful in rallying public support in the struggle against PC. Such arguments also appeal to traditional conservatives, who in general have been unwilling to suggest anything more radical than foot-dragging on civil rights.

This essay is written from an American point of view, but since America has been a leader in anti-discrimination law that point of view should be of interest to people in other countries as well.

Freedom of association is taking a beating in America. Since the ’60s "civil rights" has been our established religion, preached from pulpits, enforced by law, and not subject to debate. Those who question it are excluded from public life, and mainstream discussion shrugs off their arguments. The responses are now familiar. Complaints about affirmative action are countered with denial, or with stories about the horrors of white racism. Economics and libertarian theory are ignored on the ground that they are too narrow to capture broad moral and social issues. Scientific studies of group differences occasionally make a splash, but so far their most striking practical result has been suppression of other studies and publications, including those of eminent scholars.

When objections do manage to make themselves heard, civil rights ideology turns them to its own account. We are told that visible public antipathy to racism and sexism proves the enduring importance of unconscious bias. Stubborn group differences demonstrate the need for more determined attacks on institutional racism. The apparent strength of the evidence against egalitarian claims shows flaws in scientific and common-sense epistemology. Nor are such "arguments" the only line of defense. If evidence did force acceptance of the importance of group differences, things might only get worse. Consider "discrimination" against the handicapped: civil rights advocates do not really question that handicaps limit abilities, but believe the world should be remade so the differences do not matter. Other group differences, if recognized, would be treated the same way. If X’s turned out less intelligent and Y’s more emotional than middle-class white males, then things would have to be rearranged so that stupidity and hysteria are no longer barriers to success. No matter what the facts, civil rights wins.

Specific objections thus do little good; "civil rights" is central to current understandings of political morality and can not be attacked in isolation. To reject it is to cut oneself out of the conversation. It is nonetheless not invulnerable, because morality does not hang in the air. A favorable view of civil rights legislation depends on the view that men can consciously reconstruct social life to make things like ethnicity, gender and religion irrelevant to social position. A contrary understanding of how the world works would make civil rights ideology implausible and eventually overthrow it. Those who oppose the ideology therefore need to broaden their arguments to include the relation between the good society and affiliations based on ethnicity, culture and religion. The vitality of such affiliations and the right to take them into account in choosing one’s associates must be shown to be a necessary part of a good society, and specific arguments against forced equality merged into a panoramic view of the damage the civil rights movement has done in America.

In arguing that "civil rights" injures the American way of life we now have the advantage of hindsight. The experience of 30 years is enough to demonstrate that anti-discrimination legislation makes life worse for almost everyone. Like other attempts to realize social justice through comprehensive regulation, it smothers the human spirit and impoverishes and degrades social life. It enormously increases centralized government power, makes organizational compatibility and cohesion more difficult to achieve, makes communities weaker and less functional, reduces the obligations of citizenship, and makes standards of morality less concrete and therefore less effectual.

The rational strength of the anti-civil rights position does not mean that victory will come soon or easily. The civil rights movement has a shining goal very like that of socialism, and the struggle to overcome such dazzling visions is slow and difficult. State ownership of industry could not be overthrown as an ideal until a lifetime of experience had made its destructiveness too obvious to ignore. The same is likely to be true of the civil rights laws. After a third of a century there are still very few voices willing to criticize them publicly and in principle. With the battle hardly begun and victory nowhere in sight, the present task for those willing to speak out is to make the true situation as clear as possible to those willing to see what is in front of them.

It must be made plain that anti-discrimination law is perverse on its own terms. It sets itself the task of eliminating a pervasive and deeply-rooted feature of complex human relationships. The attempt to do so by external authority has necessarily been unsuccessful and destructive. In trying to eliminate discrimination on grounds like race the law promotes it. Anti-discrimination law is easy to evade unless it presumes bad faith; if an employer has a forbidden reason for not liking someone he can always find an acceptable reason to favor someone else. To have its intended effect the law must therefore view every decision with suspicion, and forbid useful practices like intelligence testing and checking arrest records because they do not yield proportionally equal results and so could cover discriminatory intent. In the end, the only way for employers to avoid costly accusations of discrimination is to make sure enough members of every protected group are hired and promoted—in other words, to discriminate in favor of them, and against those who are not protected.

Further,the civil rights laws are not needed to protect victims of irrational discrimination, because liberty is the best defense against oppression. In a free market, employers who make bad decisions hurt themselves and help their competitors. If one employer doesn’t want a good employee another will. The civil rights laws hurt the most disadvantaged workers, those who have not established themselves and are having trouble doing so, because they restrict their ability to offer attractive terms to employers. For example, they make it illegal for blacks to undercut the wages white workers demand, and risky for employers to hire blacks who have not already demonstrated their productivity and so might so have to be fired. It is therefore no surprise that both the gap between rich and poor blacks and the black unemployment rate rose strikingly after passage of the Civil Rights Act of 1964, that the gap between black and white earnings narrowed more slowly after 1960 than before, and that in 1992 as in 1959 blacks were about 3 times as likely as whites to be poor.

Once the ineffectiveness and even perversity of anti-discrimination laws have been established, they must be shown to attack fundamental American principles. The attempt to redefine Americanism as compulsory inclusiveness just doesn’t work. Our society has always been built on a mixture of freedom and traditional morality, and civil rights laws are radically at odds with both. An attack on fundamental social principles causes problems everywhere, so the civil rights movement has been an integral part of the post-60s American turn toward dysfunction. Liberals who respond to nostalgia for the 50s by observing that discrimination was legal then are right to make the connection.

In the case of freedom the inconsistency is obvious. "Civil rights" has become an unbeatable argument for why we should be ruled by our betters. Whenever there is a proposal to cut back on the power of bureaucrats and judges and let the people have more say in how their businesses and communities are run or their children educated, the response is always the same—what about discrimination? The question is a good one. Free institutions rest on mutual choice that can spring from any number of things—instinctive trust, common loyalties, similar goals and interests, compatible habits and attitudes. Because ethnic and religious affiliation is so often relevant to such things, mutual choice means discrimination. Civil rights laws make it illegal for a man to choose his own associates if he would rather get on with the job than worry about cross-cultural sensitivities, or if he simply feels more comfortable with those like himself. That is a plain violation of self-rule.

Traditional morality is a somewhat more difficult case. Many people, especially in the churches, do not see how it conflicts with civil rights ideology. A little thought should make the matter clear. Much of traditional morality has to do with family integrity and so depends on recognition of the special status of the traditional family, the differing roles of the sexes, and the subordination of children to their parents. It thus involves discrimination on grounds of gender, status, sexual orientation, and age. That is why conflicts over such issues have been tearing apart mainline churches ever since Martin Luther King took on almost the role of Savior within respectable American Christianity.

In addition, traditional morality always involves "racism" and "religious discrimination." A tradition must be that of a particular people, so to recognize the importance of traditional morality is to accept the significance of ethnic and religious affiliations. Since the traditional moralities of immigrants and minorities often differ on important points from that of the dominant majority, an emphasis on traditional morality puts the former at a disadvantage. Differences in moral outlook are important even when both sides are highly moral and similarities in a sense go deeper than differences. Anglo-Saxons and Chinese both respect experience, but they express their respect differently, the Anglo-Saxons by honoring legal tradition and the Chinese by honoring old people. Mix the two races together and each will complain about the other’s moral character; in a society run by one in accordance with its own view of right and wrong the other will be perpetually at odds with established institutions.

It is possible in brief to sketch only a small part of the mass of intertwined problems that has resulted from the rejection of freedom and traditional morality motivated by civil rights concerns. In the most general terms, "civil rights" aims to eliminate all relationships of domination and subordination. Since we are social animals for whom self-rule and rule by others are mixed in complex and subtle ways, the attempt has not worked and the result has been a mixture of chaos and tyranny. A society based on consent and accepted standards of personal morality and obligation to others has been replaced by one composed of asocial individuals kept poorly in line by bureaucratic commands and threats. Specific consequences include government overreaching, regimentation, the weakening of free institutions, social fragmentation, and the destruction of community and culture.

Any society Americans can recognize as tolerable must, for the sake of freedom and moral responsibility, limit the state’s role and maintain an extensive sphere of private responsibility. The civil rights laws make that impossible. They radically reduce the independence of private organizations by socializing their most fundamental decisions, choice of members and appointments to positions. The laws also sharply constrain the principles private organizations can hold, since each must adopt and make central to its mission the goals of the civil rights movement. Given the legal obligation to provide employees with a working atmosphere free from discriminatory attitudes, nothing less is a realistic possibility.

The result is that all significant private organizations become in effect branches of government. Each is forced into a mold defined by the requirement that it have a membership representative of society at large and an internal environment equally favorable to every protected group. Sensitivity training, speech codes, and other forms of thought control are the inevitable outcome and the natural expression of laws whose purpose is to control attitudes and motives. The political consequences have been disastrous. A free society can not survive without institutions able to judge government and call it to account from an independent standpoint. Restrictions on freedom of thought and discussion in the academy and media imposed in efforts to uproot discrimination are a sign of how difficult equal opportunity laws make it to meet that requirement.

A free and healthy society has a huge variety of organizations with very different principles, goals and members. Diversity among organizations is a source of strength; what hurts some becomes an opportunity for others, and society as a whole is held harmless. "Civil rights" is killing that diversity and weakening society as a whole. The "diversity" its advocates praise is really fragmentation. Since every part of society must be the same as every other part, the diversity that matters is destroyed. Nonetheless, each part must be internally heterogeneous. Its unity may not rest on any internal principle of cohesion and must therefore be imposed from outside. The social order the civil rights laws brings us is thus an order of slaves rather than citizens and self-governing institutions.

Among large organizations, every house is now divided against itself by factions dependent for their power on victim status. That status is now a normal basis for a career; affirmative action makes the position and even livelihood of employees dependent on the presumption that employers want to mistreat them. By attacking spontaneous informal ties among colleagues the laws cause further fragmentation. Those ties do more for effectiveness than job descriptions and formal qualifications; that is why all-star teams rarely measure up. In spite of all attempts to establish mentoring arrangements for minorities, women and the like, outsiders can not make informal ties equal. The law must therefore declare war on the natural ways in which people have always cooperated, and treat "old boy" networks and the like as an evil to be destroyed. Everything must be formalized so that the state can be in control and ensure "fairness."

The effects of the social fragmentation the civil rights laws require are extremely varied and uniformly bad. One that is particularly illuminating is the destruction of the settings in which concern for others develops and becomes active. In spite of its idealistic pretensions, the anti-discrimination movement promotes single-minded concentration on purely individual gain. Public spirit relies on shared goals and understandings that grow up over time in particular settings, and it varies by ethnicity and religious affiliation. Irish Catholic organizations and Jewish organizations may be equally public-spirited, but their style and concerns differ. Such things can’t be forced. Compulsory diversity within organizations causes shared understandings to weaken and public spirit to dissipate as agreement on specifics vanishes. Which will it be, Father Flanagan’s Boys Town or Bonds for Israel? The American law firm, once a discriminatory professional organization and now an equal-opportunity money machine, shows that today it is most often neither.

An extraordinarily radical and destructive feature of the civil rights laws is their attack on the significance of culture. "Racial discrimination" does not depend on race in a biological sense. If all inherited racial differences vanished tomorrow the intangible aspects of ethnicity—common memories, loyalties and culture—would still give rise to a sense of separate identity that would lead to discrimination. The civil rights laws would be useless if an employer could get off the hook by saying he was not discriminating on the basis of white Anglo-Saxon race but simply preferred employees with WASP attitudes and manners.

Cultural discrimination must therefore be forbidden if the civil rights laws are to achieve their goal. However, culture can not be separated from how men carry on practical life. When close cooperation is required it is absurd to ignore the things that give us our sense of who we are. "Cultural differences" mean that people who differ in ethnicity differ in upbringing, and taking upbringing into account is no less reasonable than taking formal education into account. An ethnic culture, after all, is a system of habits and attitudes that has grown up among people who have dealt with each other for a very long time, and it continues to exist because it is an aid to living and working together. There would be no Little Italys or Chinatowns if those who shared such things gained nothing by staying together. The civil rights laws prohibit recognizing the public functions of culture; since culture exists in relation to its functions, the effect is to require its destruction.

Attacking systems of habits and attitudes that enable people to cooperate promotes conflict and inefficiency. More generally, it destroys community. "Community" is a misused and overused word, but community itself is part of what makes freedom possible and valuable. Ethnicity and religion are fundamental to most communities; the habits, tastes, loyalties and memories that hold them together are bits of ethnicity, and the beliefs that give them a soul (about life, the world, and good and evil) are fundamentally religious in nature. To destroy the public significance of ethnicity and religion is therefore to dissolve the communities that actually exist, with no prospect that others will take their place. If others did appear, it is likely they would soon become targets of anti-discrimination laws since whatever held them together would be functionally equivalent to ethnicity and religion.

Community is sometimes thought to conflict with freedom, but it is necessary for it. "Divide and rule" is the tyrant’s maxim. Political freedom will not exist unless common understandings enable the people to call their rulers to account and when necessary resist them. The possession of such common understandings is equivalent to community. In addition, our pursuit and enjoyment of the goods we care about is intertwined with the choice of people with whom to share them. Moral and cultural life—the things that make our lives more than crude impulse and instinct—grow out of common habits and understandings that can not exist without community. Language, common courtesy, and the arts depend on community standards. Scholarship calls for a community of scholars and religion for a community of believers. Such things grow up in accordance with their own principles; anti-discrimination laws destroy them by denying the freedom they need to develop. The degradation of scholarship, the arts, civility and even language that we have seen in the past 30 years therefore owes much to the civil rights movement.

The civil rights laws promise to destroy "racial privilege" and "intolerance" root and branch. The rhetoric is impressive, but its concrete meaning is that the benefits of society must be severed from ethnicity and religion and therefore from community values. While in some moods absolute independence has its appeal, in the end few of us would choose it. Man is, after all, a social animal. The usual consequence of isolating success from specific ties and standards are aimlessness on the one hand and boundless and self-sufficient ambition on the other. That is the state of affairs to which the civil rights laws have led us. Those who praise the civil rights idealism of the ’60s and denounce the greed of the ’80s and slacker ethic of the ’90s have not noticed that the three are at bottom the same.

Community is necessary for the normal day-to-day social functioning of a free society, and its destruction makes individuals weaker and more dependent on government. Expectations of personal responsibility and mutual assistance take concrete form in the cultural outlook of particular communities. If culture and community are destroyed such expectations become too vague to be relied on, and individuals therefore become unreliable as well. Community standards are first learned and enforced within families, so the "civil rights" attack on community is also an attack on family life. If Korean girls and Hispanic boys are to be subject to the same expectations and have the same options, then schools and the larger society must teach them to throw off the parental authority that rears them in accordance with the differing standards of different communities. The effect, of course, is not to liberate young people but to hand them over culturally and morally to peer pressure, popular entertainers, advertisers, and social service agencies. The results we can see all around us.

The degradation of community and morality underlines the perversity of the civil rights laws. Their proponents claim they are intended to help the weak and those on the margins of society, but those are the very people hurt most by the moral chaos the laws favor. The attack on culture, community and family has been particularly damaging to women, children, and black people. Poverty has been feminized, children deprived of their fathers, and young black men have found in the criminal justice system a substitute for the social controls their own communities should have given them. Civil rights advocates therefore have a great deal to answer for; to date, however, very few of them have shown any interest in even hearing what the issues are.

The forces that support the civil rights laws are strong and determined. Lawyers, judges, bureaucrats and "experts" like power. Some politicians find it profitable to provoke discontent, others to buy social peace at the expense of the law-abiding and unorganized majority. Journalists like centralization because it makes public life easy to talk about and dramatize. The majority that should oppose the laws is more interested in its comforts and amusements than in public affairs.

Nonetheless,there is hope for the future. In spite of the power of its supporters, civil rights law is vulnerable to discussion because it depends on the acquiescence of those it treats as morally unfit to choose their own associates. "Civil rights" can retain its status as an established religion only while it is not questioned openly. Once its premises become debatable and civil rights measures have to be justified one by one to those they will bind, its power will evaporate. It inherently unstable in a society in which speech is free and power depends ultimately on consent.

Its proponents of course have their arguments. Like armies, prisons and economic inequality, discrimination has a destructive side that is easily visible. The issue, however, is whether it is so dangerous and unnecessary that it should be categorically forbidden. That conclusion is asserted as if it were obvious, but as we have seen it is hard to defend. Anti-discrimination laws are novelties, they have done enormous damage, and prospects are dim they will work better in the future. There is nothing uniquely righteous about the concerns that motivate them. Even in the century that has given us the Ayatollah and Nazism, the most successfully murderous regimes have been ones that aimed to destroy ethnic and religious attachments in the name of universal ideals.

Any rational response to racial prejudice and the like must recognize that characteristics like race penetrate human life in complex ways, and a legal prohibition of discrimination inevitably interferes with normal ways of doing things and forbids conduct that is neither crazy nor malicious. As with economic life, the complexities of inter-group relations go far beyond anything judges and bureaucrats can deal with intelligently. Such things are so complex and intangible that people must sort them out for themselves; the best answers arise not out of central control but out of freedom.

Civil rights advocates understand, at least implicitly, the weakness of their position, and therefore prefer speech codes and court orders to free debate and government by consent. The trend of the times is against them. In the age of the Internet it is becoming more and more difficult to silence speech for the sake of re-engineering society. The civil rights laws are an expression of a period of extraordinary political centralization through control of economic life and public discussion. That period, which gave us communism, fascism and managerial liberalism as well as the civil rights laws, is dying. The abandonment of socialism and fall of communism are the dawn of a new and less managed age. That age will have its own problems, but there is reason to hope the civil rights laws will not be among them.