The Libertarian Take on Discrimination

By Walter E. Block

What with the Supreme Court's hearing of the Students for Fair Admission case against Harvard University and the University of North Carolina, racial discrimination is now in the news.  Like two contending (intellectual) armies, liberals and conservatives have staked out different positions.

In the view of those on the right side of the political economic spectrum, matters are simple and straightforward: discrimination is wrong.  Period.  Stated Supreme Court justice John Roberts: "The way to end racial discrimination is to end racial discrimination."

The perspective of the left side of the aisle is a bit more complex: discrimination is justified, but only if it helps the downtrodden: women, blacks, the "differently abled," gays, etc.  One gets the impression, reading between the lines (although none of them, yet, has come out and exactly said this) that if the freshman intake of Harvard and UNC entirely consisted of these groups, and thus entirely excluded white males and Asians of both sexes (unless they were handicapped, of course), that would be just fine and dandy.

What, in sharp contrast to both of these viewpoints, is the libertarian position on all of this?  It too is simple: discrimination, of whatever type or variety, should be legal.

Libertarianism is a theory of just law.  There are three foundational principles of this philosophy, which must be mentioned in the present context.  One, the non-aggression principle: No one has the right to threaten or use violence against anyone else; thus, murder, rape, theft, kidnapping should be illegal.  Two, property rights are based on initial homesteading of virgin territory, à la John Locke, and any subsequent voluntary interaction — "legitimate title transfer," in the words of Robert Nozick, such as buying, selling, lending, gift-giving.  Three, free association: No one should be compelled to associate with anyone else.  This latter explains libertarian opposition to the 1964 so-called Civil Rights Act: Woolworth's was obligated to serve customers it wished to exclude.

What is the economics of this issue?  Gary Becker, Thomas Sowell, and Walter E. Williams have done important work contending that such discrimination is all but impotent to hurt its targets, contrary to the widely received opinion on this matter.  Given that Woolworth's, at the time, refused to serve certain ethnic groups, profits would have arisen for other venders to serve them.  Blacks had to ride in the "back of the bus"?  Other bus companies would have arisen to serve them (in the absence of Jim Crow laws, which prohibited such competition, which are anathema to libertarianism).  When the Ivy League schools imposed a hard upper bound on Jewish admits, the City College of New York and Yeshiva University were happy to take in those thereby excluded.

Not only is the case against discrimination economically unsound, but this applies to its philosophy as well.  Heterosexual men discriminate against half the human race in terms of bed partners, romantic love interests; no other men need apply. Likewise heterosexual women, and homosexual men and women, too.  But if the law against discrimination were to fully implemented, it would compel bisexuality for everyone.  This, to say the least, is a conclusion unwelcome to all and sundry, but it follows logically, and ineluctably, from the principles of non-discrimination.

The argument against this philosophical knock-out blow is that anti-discrimination laws are meant to apply only to commercial endeavors — buying, selling, renting, lending, etc. — not to personal ones such as choice of spouse.  But there is no rationale in any such contention.  Murder, rape, theft, kidnapping, etc. are illegal whether they occur in the home or in the office or factory.  If there is a right not to be discriminated against, it should apply, too, to all realms of human interaction, not just the commercial.

Harvard and UNC should be free to discriminate to their hearts' content on the basis of race or sex or whatever other criteria they choose.  But they should not see a red penny of any tax money or other statist privileges, since, under the libertarian legal code, there should be a full and complete separation of government and education.  If they want to discriminate, let them do so on their own dime.  Private people and fully private institutions should be free to discriminate all they wish.  That is what free association is all about.  But government is constitutionally forbidden to do any such thing.

Originally published on American Thinker.