The Civil Rights Laws and the Growth of Government

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The
political process always manages to turn idealistic dreams inside
out. For an excellent example, look no further than the civil rights
laws passed in the last 40 years.

For almost
a century before 1964, governments in many southern states forced
segregation on the people. Government prohibited companies from
providing racially integrated facilities for their employees or
customers. Whites and blacks were forbidden by government to sit
together in restaurants or to use the same restrooms and drinking
fountains – and in many cases were forbidden to shop together
or work together.

Civil rights
advocates fought to repeal these state Jim Crow laws, but they failed.
So they appealed to the federal government, which responded with
the Civil Rights Act of 1964.

But this didn’t
simply repeal state laws compelling segregation. It prohibited
racial segregation – voluntary or otherwise. Overnight, what
had been mandatory became forbidden. Neither before nor after the
Civil Rights Act were people free to make their own decisions about
whom they would associate with.

The civil rights
movement wasn’t opposed to using government to coerce people. It
merely wanted the government to aim its force in a new direction.

Although the
activists believed coercion served the noble objective of bringing
the races closer together, it was coercion nonetheless.

The Giant
Begins to Grow

And coercive
laws never stand still. No matter what a law’s backers say at the
time of passage, the law always stretches in surprising directions.
The expansion occurs on at least two fronts:

  • The
    law almost always is enforced more broadly than intended;
  • When government
    benefits one group, other groups are encouraged to seek similar
    benefits.

And this is
what happened to the civil rights laws.

In the first
regard, the bureaucrats and courts set out to enforce the laws zealously,
seeking to root out any kind of discrimination – even though
ending segregation, not discrimination, was the motive behind the
original law. Companies were ordered not to consider race in any
way when making hiring decisions.

But usually
the reasons for a business decision are hard to prove. Unless a
businessman is a noisy bigot, who can say whether racial discrimination
has affected his decision to hire someone?

To avoid having
to read minds, the enforcers examined results to determine whether
discrimination had occurred. If you didn’t have a suitable racial
mix in your workforce (or even among your customers), you were assumed
to be discriminating – and the burden of proof was on you to
prove otherwise.

So an employer
could avoid charges of discrimination only by, in fact, discriminating
– by using quotas to assure that he hired the right number
of people of the right races – even though the original sponsors
of the law had sworn that quotas were no part of it. The law against
segregation had been transformed into a law requiring discrimination.

The law also
encouraged other groups to demand similar coverage. Once it was
established that government should punish racial discrimination,
the door was open to using government to punish anything similar.
If it’s wrong for an employer, landlord, or organization to discriminate
according to race, it must be just as wrong to discriminate according
to gender.

So the coercion
expanded to prohibit discrimination against women – and then
religious believers, and then the elderly, and then people with
children, and then the handicapped.

The New
Aristocracy

Civil rights
laws feed lucrative lawsuits. So every imaginable group wants to
be covered by the laws – to be eligible for generous settlements.
There’s pressure to outlaw discrimination on the basis of sexual
preference, weight, looks, drug use, illness, criminal record, citizenship,
and many other categories. Everyone wants to become part of the
aristocracy.

And it is an
aristocracy these groups are trying to join.

Once they’re
on the "A-List," they have special powers. They can sue
anyone who refuses to hire them, to rent an apartment to them, or
to sell his services to them – and maybe force him to pay thousands
or millions of dollars in punitive damages. No company can risk
such a disaster by offending someone in the aristocracy – since
almost any mistake might be considered evidence of discrimination.

For example,
in 1993 six U.S. Secret Service agents sued the Denny’s restaurant
chain – complaining they received poor service because they’re
black. And how do they know their color was the reason for the poor
service? Because a group of white people entered the restaurant
at the same time they did, and the white people finished their meals
before the blacks received their first course. To many people this
was proof of discrimination.

Now, if you
happen to be a white male, you’ve probably never felt such an insult.
It’s true you may have endured dreadful service in a coffee shop
– perhaps many times. A waiter may have refused to give you
the time of day, lost your order and forgotten you were even in
the restaurant, spent all his time flirting with a waitress, or
refused to take care of you until he had phoned his bookie.

The family
at the next table may have eaten an entire meal before anyone even
asked for your order. And so you passed the time counting the designs
on the wallpaper.

But it isn’t
called discrimination if you aren’t part of a group that’s been
certified as oppressed. So you have to blame it on a bad-tempered
waiter, an overcrowded restaurant, or poor management. Since you
aren’t part of the aristocracy, there’s no chance you were insulted
because of your race (or your religion, handicap, or any other recognized
status). You were insulted just because you’re you. And your only
recourse is to find a coffee shop that will treat you better.

The Denny’s
customers, however, could file a law suit – and they did. To
avoid a long, expensive trial and months of unfavorable news coverage,
Denny’s settled out of court and paid them $54 million.1

Neither you
nor I was in the Denny’s restaurant that night. And we aren’t mind
readers. So we don’t know whether the waiter mistreated the Secret
Service agents because of their race. But we do know that if it’s
possible to get an enormous payoff for claiming discrimination,
many people will try to get it – whether or not they actually
suffer discrimination.

So we shouldn’t
be surprised that so many accusations are made. And with such rewards
available for minor insults, it’s not surprising that more and more
groups demand to be covered by the law.

Absurdity
Becomes the Law

The civil rights
laws are supposed to end discrimination and segregation, and to
promote harmony.

But coercion
never produces harmony. How harmonious are people who are being
forced to act against their will? Most likely, those who are coerced
will resent those who benefit from the coercion. This sets group
against group; it doesn’t bring them together.

And if we accept
coercion for one purpose, we’ll be asked to use it for others. Even
if you can say "No" to the other uses, some people will
say "Yes," and others will say "Yes, please, and
make mine a double." The noble cause will be stretched further
and further until it eventually becomes farce.

For example:

  • A Chicago
    company was hauled before the Equal Employment Opportunity Commission
    to explain why it failed to promote a woman who claims she was
    discriminated against because of the microchip in her tooth that
    allows her to communicate with others.
  • Then there’s
    the man who sued his employer who fired him for bringing a gun
    to work. He said he was covered by the Americans for Disabilities
    Act (an outgrowth of the Civil Rights Act of 1964) because he’s
    under psychiatric care. The case will be tried before a jury.
  • A 220-pound
    woman has sued the Minnesota National Guard, claiming that its
    155-pound limit discriminates against her eating disorder.2
  • In 1993
    a married couple was ejected from an airliner (before takeoff)
    because they had screamed a string of obscenities at other passengers.
    So they sued the airline, claiming it had discriminated against
    them as sufferers of a disease that makes them utter profanities.3

Has the law
really been stretched so far?

No, it has
been stretched even further.

In fact, it
has been stretched all the way inside out. The civil rights laws
originated to end segregation of the races in the South. But in
1992 a Florida court used these laws to award a white woman permanent
disability benefits – ruling that her employer should have
provided a segregated workplace to accommodate her fear of
blacks.4

Although the
decision seems absurd, something of the kind was inevitable. If
coercion is used to protect the feelings of black people, eventually
it will be used to protect the feelings of white people as well.
Once government coerces on behalf of one group of "victims,"
it will eventually swing the club on behalf of almost every imaginable
group. You can’t limit coercion to the uses you think are right.

So don’t think
of any of these cases as an example of a government program gone
wrong. Each is an example of a government program – period.

You’re Not
a Dictator

I’ve used the
Civil Rights Act as an example of the way a well-intentioned government
program grows and causes far more problems than it solves. But it
is just one example.

All government
programs expand to encompass the political demands of people who
want to take advantage of its benefits. And almost all government
programs eventually do the opposite of what their original backers
had asked for.

Whatever social
reform you may envision, the version the government implements will
be something completely different. However lofty your purpose, it
will be debased by compromises in the legislature, in the administration
of the program by thousands of government employees, and in the
settling of the inevitable disputes.

Not only that,
the program is likely to grow far bigger and more complicated than
what you wanted. And someday it will evolve into a force opposite
to your intentions.

You aren’t
a dictator. You can’t control the actions of politicians, bureaucrats,
and judges.

Please remember
that the next time you think some law will solve some great social
problem.

Notes

  1. The Denny’s
    suit was announced in the San Francisco Examiner, May 24,
    1993. The settlement was reported in The New York Times,
    May 29, 1994, Section 4, page 4.
  2. The woman
    with the microchip in her tooth, the employee who brought a gun
    to work, and the National Guard case were all described in Reason
    magazine, May 1995, page 15.
  3. San Francisco
    Examiner, October 22, 1993.
  4. The case
    was brought against Fuqua Industries, Inc. in Florida, and was
    reported in The Wall Street Journal, December 23, 1992.

This article
was adapted from a passage in the book Why
Government Doesn’t Work
, the complete text of which is now
available for downloading at www.LibertyFree.com.

November
19, 2003

The late Harry Browne, the author of Why
Government Doesn’t Work

and many other books, was the Libertarian presidential candidate
in 1996 and 2000. See his website.

Harry
Browne Archives

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