THE CASE FOR DISCRIMINATION THE CASE FOR DISCRIMINATION WALTER E. BLOCK LVMI MISES INSTITUTE I owe a great debt of gratitude to Lew Rockwell for publishing this book (and for much, much more) and to Scott Kjar for a splendid job of editing. © 2010 by the Ludwig von Mises Institute and published under the Creative Commons Attribution License 3.0. http://creativecommons.org/licenses/by/3.0/ Ludwig von Mises Institute 518 West Magnolia Avenue Auburn, Alabama 36832 mises.org ISBN: 978-1-933550-81-7 CONTENTS FORE W ORD B Y LLE W ELLYN H. ROCK W ELL , JR. vii PRE F ACE .. .xi PART ONE : DISCRIMINATION IS EVERY wh ERE . 1 1. Discrimination Runs Rampant . 3 2. Affirmative Action Chickens Finally Come Home to Roost. .6 3. Racism Flares on Both Sides. .9 4. Exclusion of Bisexual is Justified. 12 5. Catholic Kneelers . 14 6. Human Rights Commissions Interfere with Individual Rights. 16 7. Watch Your Language. .21 8. Sexist Advertising and the Feminists . 24 9. No Males Need Apply. .27 10. We Ought to Have Sex Education in the Schools. 29 11. Another Role for Women . 32 12. Female Golfer. 35 13. Silver Lining Part IV: Term Limits and Female Politicians. 38 14. Arm the Coeds. .42 15. Free Market Would Alleviate Poverty and Strengthen Family Relations. 46 16. Racism: Public and Private. 49 17. Stabbing the Hutterites in the Back. .52 PART TW O : TH E ECONOMICS O F DISCRIMINATION . .75 18. Economic Intervention, Discrimination, and Unforeseen Consequences. 77 19. Discrimination: An Interdisciplinary Analysis. 117 20. Affirmative Action: Institutionalized Inequality. 142 21. Banks, Insurance Companies, and Discrimination. 155 PART TH REE : MALE -FEMALE EARNINGS AND EQUAL PAY LEGISLATION 22. Seminar on Racism and Sexism . 157 23. Directions for Future Research in Equality Pay Legislation. .188 v vi The Case for Discrimination 24. Single Women Have Better Chance to Earn Equal Salary. 202 25. Debunking the Mythical Gap . 204 26. Insight: Pay Equity Won’t Close Wage Gap. 206 27. On Pay Equity: Making the Numbers Say What You Want . 210 28. Commentary: “Pay Equity” Undermines Marketplace. .213 29. Commentary: Equal Pay Laws Spell Disaster. 215 30. Male-Female Earnings Differentials: A Critical Reappraisal. 217 PART FOUR : FEMINISM , SEX DI ff ERENCES , AND SEX DISCRIMINATION . .221 31. Gender Equity in Athletics: Should We Adopt a Non-Discriminatory Model?. .223 32. The Feminist Competition/Cooperation Dichotomy: A Critique . 266 33. Review of Michael Levin’s Feminism and Freedom . 287 34. Levin on Feminism and Freedom. 292 PART FIVE : DISCRIMINATION AND T H E LA W . 305 35. Compromising the Uncompromisable: Discrimination . 307 36. Should the Government be allowed to Engage in Racial, Sexual, or Other Acts of Discrimination?. .322 37. Sexual Harassment in the Workplace: A Property Rights Perspective. 359 38. The Boy Scouts, Freedom of Association, and the Right to Discriminate: A Legal, Philosophical, and Economic Analysis. .407 BI B LIOGRA ph Y . .445 NAME INDEX . 479 SU bj ECT INDEX . 483 FOREWORD EVERY AGE O ff ERS ITS OWN VERSION O F A F ALSE MORAL CODE . Just as Tom Sawyer thought that he was surely evil for being tempted to free a slave, we too live with incredible illusions about right and wrong as it applies to the civic realm. A firm principle of our age is that we must never discriminate. With Professor Block’s book, however, we are encouraged to be free at last. The very title of Professor Block’s book is likely to set off alarm bells. Is he really saying that what we’ve been taught to be immoral is perfectly fine? Is he defending the undefendable, again? If he is a libertarian, why not stick to defending the right to discriminate rather than actually making a case for it? The confusion deals with language first and economic theory second, and both points are critical. The word discrimination means nothing other than to choose between options in an environment of scarcity. If you can only have one car, and both a mini-van and SUV are available, you must choose between them, even if you don’t have strong feelings about either option. You must discriminate, and therefore you must have the freedom to discriminate, which only means the freedom to choose. Without discrimination, there is no economizing taking place. It is chaos. But of course the controversy over discrimination does not involve vehicles. It pertains to people, groups of people, and groups of people who have successfully lobbied for special protection. The law says they may not be excluded from jobs or admission or whatever on vii viii The Case for Discrimination grounds of race, sex, religion, disability, or any other trait that the law may stipulate. How does the state know for sure? It can pretend to read minds and motives, which is probably impossible. As a means of discovery, it listens for complaints and decides if they are valid by counting bodies. That’s where quotas come in, and there are few forms of central planning more egregious than this. It creates group resentment and fuels conflict and hatred where none need exist—all in the name of resolving conflict and forbidding hatred. Here we have a classic case of the stated aim of the state turning out to accomplish the very opposite. But rather than offer a more detailed critique—Walter Block does that brilliantly in this exciting book—let me address a more fundamental problem. What is the theoretical basis of discrimi- nation law? Think back to the age of Marxism, and its core idea that capitalism introduced an intractable conflict, woven into the very fabric of society, between the owners of capital and the workers. The gain of one could only come at the expense of the other. In the free market, they believed, capital would exploit labor to the point of death. The role of the revolutionaries, then, was to turn the historical trajectory on its head and enable workers—the masses of people—to exploit capital to the point of death. The expropriators would be expropriated. Of course most people realize that this is a silly way to look at the labor market. Workers and owners make agreements based on the prospect of mutual benefit. They are benefactors of each other through an act of human cooperation. The essential conflict in society is not between labor and capital, but between them and the agency that exploits them both, namely the state, which taxes and regulates them. The expropriators who should be expropriated are the bureaucrats and politicians who make life a living heck for the multitudes. Marxism is old hat; hardly anyone takes it very seriously anymore. But the conflict model of society that is at its core—valid insofar as it pertains to the state—has been changed to an endless stream of other implausible scenarios. We are told that women and men are Foreword ix always and everywhere at odds, that blacks and whites are going to be forever at each others’ throats, that people of different religions will forever attempt to drive each other into the ground, that people with a disability will always suffer at the hands of those with full abilities, and so on. This is the view of society that the proponents of discrimination law have inherited from the Marxists. The irony of policy based on this idea is that it creates the conflict itself—as all violations of the freedom to associate do—and thus the alleged evidence that this confused view of society is actually true. The alternative to all this is the one accepted by Walter Block, the old liberal view, nowadays called libertarian, that society on its own is not rooted in conflict but cooperation, and that no central administration is necessary to bring about social peace. Yes, there are problems and conflicts, but there is no institution more likely to resolve them than the free market itself. People must be permitted to work out their own problems, and the result will be a flourishing of all groups. This is his view, and it is also the one held and defended by the whole liberal tradition from the late Middles Ages to the current day. Walter Block’s book is a specialized application of the libertarian perspective on society, as applied to a particular controversy in our times. It is supremely rare in tackling this issue head-on and offering a no-compromise alternative: abolish all anti-discrimination law on grounds that it makes no economic sense and only generates conflict where none need exist. Will this book cause controversy? Most assuredly. But that is not its goal. Its goal is the uprooting of a flawed and failed social theory and its replacement by a realistic one that is rooted in a genuine concern for human rights and the good of all. Llewellyn H. Rockwell, Jr. Auburn, Alabama PRE F ACE SOME O F THE ESSAYS INCLUDED IN THIS BOOK DEAL WITH EVENTS as they arose in Canada. This is due to the fact that I worked at the Fraser Institute, located in Vancouver, British Columbia from 1979–1991, when a portion of these pieces were written. But, let me assure readers from other nations, the issues of discrimination which arose there and then were global issues having implications for most places in the world, particularly the U.S., in the modern era. In many ways, Canada was then and is now “ahead” of the U.S., at least insofar as the march downward toward socialism and economic interventionism are concerned. Walter E.