Discriminating Between Discriminations

Richmond Times-Dispatch columnist A. Barton Hinkle asks Rand Paul's critics how consistently the principle of nondiscrimination reflected in Title II of the Civil Rights Act should be applied. He mentions cases involving anti-gay discrimination by the Christian Legal Society and the Boy Scouts of America, where even some progressives (e.g., Washington Post editorialists and George Washington University law professor Jonathan Turley) see a freedom of association and freedom of religion case not just for letting the groups set their own rules but for granting them official recognition and subsidies on the same terms as other groups. And Hinkle cites several examples of private discrimination that most progressives would consider benign:

A lawyer friend in Northern Virginia asks, "Why shouldn't a business be able to offer a safe, gays-only retirement home?"

Even more pertinent: What about the scholarships offered exclusively to racial minorities—such as the Ford Foundation's Diversity Fellowships, the Southern Regional Education Board's Doctoral Scholars Program, the University of California President's Postdoctoral Fellowship Program, and the literally thousands of others like them?…

What about the comment by the Virginia NAACP's King Salim Khalfani, just the other day, that "We need race-conscious remedies because race-neutral does not work"? And what about the dozens of women's colleges across the country—which, although technically private, receive significant government funding? Or Curves, a chain of fitness clubs that caters to women and is, in some states, off-limits to men. Should it be forced to integrate?

One possible response to some of these questions is that the solution chosen for African Americans, with their unique history of slavery and oppression, was appropriate for them and them only. The most compelling argument offered by libertarian defenders of Title II's ban on discrimination in places of "public accommodation" (such as Richard Epstein, David Bernstein, and Julian Sanchez) is that segregation in the South was not just enforced by law and not just maintained by attitudes that the government shaped through centuries of racist policies but perpetuated by threats of private violence that police either endorsed or ignored. In such a situation, say Epstein and Bernstein, a federal ban on private discrimination gave business owners the freedom to integrate without fear of violent reprisals. The only alternative, Bernstein says, would have been a federal takeover of local law enforcement. Since racist (or cowardly) police forces that refuse to protect integrated businesses from violent bigots are a pretty strong reason for federal intervention under the 14th Amendment, I'm not sure that what looks like the easier solution was actually the right one. But the general point is that the treatment of blacks is a special case in American history that justified deviating from respect for property rights, freedom of contract, and freedom of association.

Libertarians such as Epstein, Bernstein, and Sanchez would like to have prevented this one exception from multiplying. "When you say, this is such a wonderful idea, let's carry it over to disability," Epstein says, "you create nightmares of the first order." But if one thing can be confidently predicted based on the history of U.S. government, it is that exceptions made for one particular purpose will be extended to others, to the point where they become the rule rather than the exception. (Likewise, while Randy Barnett argues that a 14th Amendment rationale for Title II could have prevented Congress from using the precedent to extend its reach beyond the limits set by the Framers, what actually happened is that the constitutional contortions necessary to justify Title II gave us an ever-expanding federal government under an infinitely adaptable Commerce Clause.) In the real world, rather than the one Epstein et al. would have preferred, we confront questions like those posed by Hinkle, and it's not clear what principles should be used to resolve them. Furthermore, the "special case" argument has been used to justify reverse discrimination by the government (via affirmative action programs) as well as private entities (through racial preferences such as the scholarships Hinkle mentions). If we accept the idea that one set of right violations can justify another, can we dismiss out of hand Khalfani's argument that, given the history of oppression that blacks have suffered, true equality requires unequal treatment?