D’Souza sets forth four possible policy remedies for dealing with persistent discrimination. The first two proposals embrace the “one-drop rule.” The other two reject it. (The “one-drop rule” was originally designed by slaveowners and segregationists to ensure that blacks as a group remained distinct and distant from whites. It is now the unifying principle that defines blackness in America. Ironically, as F. James Davis observes: “American blacks now feel that they have an important vested interest in a rule that has for centuries been a key instrument in their oppression.”)
Here are the four possible policies, as expressed by D’Souza, along with his analysis.
1. All racial groups should receive proportional representation.
There are at least four problems with this approach:
- It is incoherent—there is no reason whatsoever to believe that in the absence of discrimination, all groups would perform equally in every area.
- It fails the test of social justice.
- It erodes the principle of merit (which constitutes the only unifying principle for a multiracial society).
- It assures an unceasing racialization of American society.
2. Racial preferences should be abolished for all racial groups except one: African Americans.
- While it has a chance of working in a black-and-white milieu, it is increasingly unsustainable in a multiracial society.
- Furthermore, the moral and psychological damage wrought by such an approach would almost certainly outweigh any tangible short-term benefits.
3. There should be a blanket nondiscrimination rule that establishes a right not to be discriminated against, and consequently requires the enforcement of color-blind principles in both the private and public sector.
This is the approach favored by Martin Luther King and enshrined in law with the Civil Rights Acts of 1964.
- One difficulty is that a broad-based color-blind rule is not easy to enforce. Private discrimination is hard, though not impossible, to prove.
- A more serious problem is that if applied consistently and even-handedly, it would require the government to make it illegal for minority companies to give preferences to members of their own group (e.g., a Korean grocery store that insists on hiring Korean workers).
4. There should be a long-term strategy that holds the government to a rigorous standard of race neutrality, while allowing private actors to be free to discriminate as they wish.
Hence, the government should be uncompromisingly color blind in its hiring and promoting, criminal justice, and the drawing of voting districts.
And yet individuals and companies should be allowed to discriminate in private transactions such as renting an apartment or hiring for a job.
Is this a call for a repeal of the Civil Rights Acts of 1964? Yes. The law should be changed so that its nondiscriminatory provisions apply only to the government.
Americans, as Richard Epstein argues, have a deeply held belief that they have a right not to be discriminated against. But in a free society, people have a right to enter into voluntary transactions that other parties should be at liberty to accept or refuse.
D’Souza writes:
The issue of private discrimination is important, but whichever way it is settled, the central choice facing American society is whether its agencies of government are going to embrace the one-drop rule and practice racial discrimination, or reject it and treat citizens equally under the law. The one-drop rule reveals the way in which our current antidiscrimination policy is premised upon the ideological foundation established by the old racists. It endorses and perpetuates racial discrimination, even while purporting to fight it. Although current policy professes to promote “benign” discrimination, all discrimination is benign for its beneficiary and invidious for its victim. America will never liberate itself from the shackles of the past until the government gets out of the race business.
Why is there a form of “separation of church and state” in the United States? Not because religion doesn’t matter, but precisely because it does matter. What we need now is what Jennifer Roback calls “separation of race and state.”
