I know, I know, that seems like a contradiction in terms. I'm not a libertarian, although I do have a natural aversion to government interference in my personal life (I mean, who doesn't?), and I think that the market is a better option for regulation of some portions of society than many of my fellow liberals probably think it is. But affirmative action (giving some preferences in hiring or college admissions based on race or gender in order to redress the inequalities created by past outright discrimination) is a libertarian's worst nightmare. It doesn't treat all people equally, and it involves government interference in business and education. Many libertarians are now seeing Barack Obama's success and popularity as evidence that affirmative action is no longer necessary. If white people are willing to elect a black man to be their president, this argument goes, surely there can't be all that much day-to-day discrimination anymore, and thus the reasons for affirmative action no longer exist.
The libertarian solution to the problem of blatant discrimination in the workplace or in college admissions is simply to make a minimal law that says "it is illegal to discriminate based on race or gender", and then enforce that law vigorously. The anti-affirmative action stance is voiced in this article on this very subject.
But I have to disagree. Not on principle, but as a practical matter. I simply don't see how that law is enforceable in any practical way. Let's imagine a typical situation in which such a law might be invoked:
A trucking company is located in an urban area that is racially diverse—say, 40% black and 60% white just to simplify. This trucking company has 150 employees, and 6 of them are black (that's 4%). This has been the approximate percentage for a few years when a group of 5 black local residents who were denied jobs there files a suit under this theoretical anti-discrimination law. How should the government handle this?
- Approach the owners directly and ask about the disproportionately low hiring rate for black people? The obvious response is simply "They were denied jobs because of their employment history, not because they were black."
- Confront the owners with resumés showing that the 5 candidates appear to be well-qualified? Response: "They were not as well-qualified as the other applicants for those jobs."
- Demand all records pertaining to all hires over the period of time covered by those applicants' applications, and try to determine whether any racial preference to white people shows up? Response: "I was personally more familiar with the references (previous employers) given by the people we actually hired."
- Research all previous employers of all applicants to determine whether the current employer only does business with other racist companies, thus making reliance on references a measure that is inherently biased against black applicants? Response: "I was unaware of any bias in those companies."
- Point out how an inability to find more than 4% qualified black employees in a 40% black neighborhood (with 5 qualified applicants already present as parties to the lawsuit) simply strains credulity? Response: "I remember those applicants—I just simply don't think they would have fit in with our work force."
What can the government do here? Second-guess every hiring decision made by this company? What if the company is huge, with decades worth of hiring records? Are we going to tell businesses exactly what kinds of qualifications do and don't matter for the purposes of hiring? Is "not fitting in" an unacceptable reason to deny someone a job? Isn't enforcing such a broad anti-discrimination law simply too intrusive? I would certainly think so if I were in charge of hiring for any company. I'd rather simply be told: "If you want to satisfy us that you're not a racist, you'd better have X% of your workforce be non-white as evidence that you're not an outright racist company." Then I could do my own balancing of "fitting in" with overall workforce composition. That seems a less intrusive way to enforce equal opportunity. We can discuss and argue the validity of any specific formula for X, but a cold statistical analysis has to be a more libertarian solution than case-by-case meddling in every business's hiring process.
Now...will it happen that some qualified white applicant will be denied a job in favor of an arguably less-qualified black person? Unfortunately, probably yes. Although I would bet (without any real way to know for sure) that this would happen less often than a qualified black person losing out to racism.
Note that #5 above seems like a pretty good argument by the time a possibly racist employer has responded to the evidence in such a slippery manner. Yet it is essentially an argument from quotas. We should see quotas not as a way to force a company to hire and promote X% black people, but rather as the least intrusive and most flexible way to obtain evidence of racist or non-racist hiring practices.
Furthermore, note that a white person who is denied a job (supposedly) due to affirmative action will probably consider legal action, and fully expect that their complaint be taken seriously and that the situation will be rectified. I would argue that affirmative action is simply the only practical, large-scale solution to meet that same expectation by black people, who have, in fact, been demonstrably discriminated against historically.
And finally, if it's indeed true that affirmative action is no longer necessary because white people don't typically discriminate based on race anymore, then...well...achieving that X% level of black employees simply won't be difficult, will it? That means that any such law will never again be invoked to challenge a non-racist company, so what's the problem?