Takings Exception

Maverick legal scholar Richard Epstein on property, discrimination, and the limits of state action

Steve Chapman from the April 1995 issue

(Page 6 of 6)

Epstein: If there were no EEOC and no recourse against private schools, you would still see affirmative action, but a little bit more tempered than you do today. There would still be moral claims saying that it would be intolerable to have a law school which is overly white. I think most schools would do some of it, but the budget constraints would be a bit tougher and the preferences for admission would be a bit smaller than they are now.

The current position on affirmative action is reinforced in two directions. It has a cadre of genuine supporters, who'd be in favor of it no matter what the law required. And then it has a large number of individuals who are willing to go along with it for fear that if they don't, they will enmesh their institution in an ugly Title VII suit.

There are many cases on the books, including the most famous of them--the Sears Roebuck case--where it turns out a firm a) has an affirmative-action program and b) is sued to the hilt with respect to its so-called discriminatory policies. It's very difficult under current law to find yourself a safe harbor against the enforcement of the statutes.

With public institutions, the difficulties are enormous. To some extent, I would like public institutions not to exist. I think that states ought to sell off their universities. Give them endowments and let them run. But if they do exist, it becomes very difficult to look them in the eye and say, "You get some state funding so, even though you are relatively autonomous, you can't do anything that a private rival institution is able to do. You've got many fewer degrees of latitude."

It's quite possible that public institutions, if pushed by legislative pressures, can go absolutely overboard on questions of affirmative action. I can't make any generalizations on the subject. In some states, the policies are relatively rooted in common sense and in other cases they may be absolutely tyrannical. Trying to figure out what the optimal policy is with respect to the public sector is something which should always be regarded as a daunting task, verging on impossibility.