Has It Ever Been Legal to Discriminate Against Whites?
Dilan Esper says the conventional wisdom that it must be legal to do DEI hiring because ... uh ... because whites have it coming (or something) is legally wrong.
An awful lot of people assume that DEI discrimination against white men must be legal because for the decade of the Great Awokening, the great and the good were constantly publicly promising that they were, in effect, going to discriminate against whites even harder than they had done before.
How could all these prestigious organizations with attorneys on staff and experts on call have done this … unless there is some sort of obscure codicil to the Constitution saying, “And of course it’s logically inconceivable that anybody could ever illegally discriminate against white men, because only white men have Prejudice and Power, those evil white bastards.”
On Twitter, lawyer Dilan Esper offers a 30,000 foot overview of a current question in the news: Has it been legal to discriminate against white men?
Dilan Esper
I’m not an expert on employment discrimination law so I am not really your source on what will happen in the NY Times reverse discrimination lawsuit.
But I can tell you about a broader more “cultural” trend about this issue, which is a lot of people don’t realize this is illegalDiscrimination against white people because of their race has been illegal ever since the civil rights statutes were passed (and was illegal before that under the Constitution with respect to state actors).
TBC, there were exceptions for very specific types of affirmative actionBut those exceptions, even when they existed (and it is unclear any of them still do after [2023’s] Students for Fair Admission), were very narrow. E.g., even many college affirmative action programs were illegal and SCOTUS struck a bunch of them down.
And in any event, that was college admissions and was justified by very specific arguments about the importance of diversity in the college experience.
You were NEVER allowed to do race discrimination in contracting or employment, including against whites.Again, all this law predates the John Roberts court. Even in the 1970’s and 1980’s and 1990’s, this was the law. Indeed, even the SCOTUS justices who thought [1978] Bakke was wrong and that affirmative action could go farther ALSO thought most anti-white discrimination was illegal.
Their usual position was affirmative action programs specifically tailored to deal with the effects of societal discrimination could be legal in some instances.
For example, the first government-imposed race quota was the 1969 Philadelphia Plan, which the Nixon Administration under secretary of labor George Schultz imposed upon the all-white electricians union in Philadelphia. (It was not a coincidence that a Republican Administration invented affirmative action to stick it to a Democrat-voting union.) The electricians union barely let in anybody who wasn’t a son or nephew of a member, so it was unlikely they’d ever desegregate without the government demanding they actually let in a certain number of blacks.
Note that the electricians union wasn’t being policed by the free market to be meritocratic. It existed precisely to reduce the rigors of free market competition for the benefit of its members and their blood relatives.
Nor was this a disparate impact case. Perhaps under a completely colorblind system, the percentage of blacks in Philadelphia who could pass the rigorous apprentice system without electrocuting themselves would be lower than the percentage of whites who could pass. But the electricians union wasn’t letting any black try out.
So, a quota system was a quick way to stop an example of obvious disparate intent racial discrimination.
These kind of 100% white organizations disappeared pretty quickly, some due to market pressure (discriminating in hiring is expensive), some due to customer pressure (people came to dislike racial discrimination, so they’d buy less from notoriously racist organizations), and some due to government action.
Among the last holdouts were country clubs, which existed as a respite from the pressures of the marketplace. You might have to do business with people who aren’t like you, but you could relax on the golf course with your own kind, and your children could dance with other young people whose parents had been vetted for the appropriate class, race, and religion.
But then came the Shoal Creek scandal during the 1990 PGA Championship when the founder of the Alabama country club hosting the tournament told a reporter that all kinds of people belonged to his club, except of course for blacks.
TV advertisers on the PGA broadcast didn’t want to hear that.
So the Tour quickly made a rule that all of its host golf clubs had to have at least one black member. Augusta National, host of The Masters, immediately found a congenial black corporate executive to bestow membership upon.
The main casualty was that ultra-exclusive Cypress Point in Northern California dropped out of hosting the Bing Crosby-ATT tournament along with Pebble Beach and Spyglass Hill (both open to the public) as a matter of principle: they wouldn’t let any outsiders dictate their membership policy. This was unfortunate for golf course fans who had previously had the opportunity to wander Cypress Point’s superlative grounds for three days each winter.
In the fullness of time, Cypress Point (who prefers to let in high-ranking Cabinet secretaries in Republican administrations) finally found a black and a woman who met their standards. They made Condoleeza Rice a member:
Augusta National later invited her in too when it stopped being an all male club around 2013. As Mel Brooks might say: It’s good to be Condi.
Other organizations like Harvard that started affirmative action in admissions around 1969 were already desegregated. The first black to graduate from Harvard College was in 1870. Harvard didn’t need its racial quotas to prevent it from discriminating against blacks, but to boost its black percentage to a more fashionable level
Over time, the purpose of affirmative action evolved largely from being more like the Philadelphia Plan to more like Harvard’s.
The Supreme Court’s Bakke decision wound up looking to Harvard for guidance. The Supremes announced that colleges couldn’t have “race quotas,” but they could have “race goals.” And that colleges couldn’t have race goals for purposes of racial reparations, but it could have race goals for purposes of fostering quality classroom discussions. After all, as we all found out during the Great Awokening, there’s nothing that leads to better, more disinterested intellectual discourse than having a lot of less bright, insecure, and resentful affirmative action beneficiaries on campus creating crises every time they felt themselves the victim of a microaggression.
But we also have had a lot of race-based laws and regulations, like low interest Minority Business Development loans from the Small Business Administration and a thumb on the scale in government contracting for women and nonwhites (so a lot of government contracts flow to competent white-owned businesses through nonwhite-owned fronts entitled to get their cut for being nonwhite.)
Back to Esper:
If an employer just preferred a Black applicant because of their race, even Justice Marshall thought THAT was illegal.
And yet all over academia and corporate America, it somehow sunk into decisionmakers that discrimination was perfectly legal as long as it was against whites. This despite the fact that not only did SCOTUS never say this, but even SCOTUS dissenters never said it.
Indeed it went beyond even employment. Some schools thought excluding whites from classes and discussion groups and dorms and lunchrooms was fine, for instance.
And of course, post-Students for Fair Admission, it’s even more clear all of this is illegal.Again, I have no specific opinion about the NYT [case where the EEOC is charging it with racist/sexist discrimination against a white man]. I don’t know the facts and I am not an expert on the nuances here. But I can tell you many employers have thought “I have the legal right to prefer this applicant of color to this white guy” and they are in for a big surprise.
It’s more like that while the 14th Amendment promised “equal protection of the laws” to all races, the Establishment decided in 1969, not all that unreasonably, to …
Paywall here.
