The non-discrimination principle states that no one should be subjected to detriment on the basis of race, sex, or other protected grounds. To most people, that simply means formal equality—treat everyone the same as required by the equal protection clause of the Fourteenth Amendment. But what does treating everyone the same mean in practice, and what is the legal test for resolving complaints about unequal treatment?
The question to be decided in the 1954 United States Supreme Court case of Brown v Board of Education was whether “separate but equal” school facilities violated the equal protection clause. The school facilities were equal, measured by factors such as facilities, curriculum, and funding. The problem was that they were racially segregated. Does racial segregation, in itself, violate the principle of equality? Does the principle of equal treatment encompass egalitarian ideals of racial harmony and mandatory racial integration? These questions are far from being settled, as they have arisen yet again in the constitutional debates surrounding anti-DEI legislation.
Following the decision in Brown v. Board of Education ending school segregation in the South, the Southern writer Zora Neale Hurston wrote to the Orlando Sentinel declaring that “Personally, I am not delighted.” The importance of Miss Hurston’s view is explained by Jack Trotter:
[Booker T.] Washington himself regarded segregation not chiefly as an obstacle to his goals but as an opportunity. Direct competition with whites, perhaps especially in the area of education, was premature. Separated from that debilitating arena, black children might thrive. And, indeed, there is evidence that in many cases across the South they did. One of those who looked upon Washington’s accomplishments with approval was Zora Neale Hurston, whom many would regard as among the two or three most accomplished black writers of the 20th century.
This does not mean they approved of the state forcing races apart, it means they saw no reason for the state to force races to integrate. Miss Hurston’s letter criticizing Brown v. Board of Education was published under the title “Court Order Can’t Make Races Mix.” As she saw it, forcing black and white children together was not a necessary means of providing children with an “equal” education. Further, the use of force violates freedom of association, and forcing people together is nothing to celebrate. She added,
The whole matter revolves around the self-respect of my people. How much satisfaction can I get from a court order for somebody to associate with me who does not wish me near them?… For this reason, I regard the ruling of the US Supreme Court as insulting rather than honoring my race. Since the days of the never-to-be-sufficiently-deplored Reconstruction, there has been current the belief that there is no greater delight to Negroes than physical association with whites.
Why did the Supreme Court view the principle of “equal treatment” as one that requires the state to force races to mix? Does “equality” require all the different groups in society to occupy the same space at the same time? Many people who support Brown v. Board of Education and contemporary DEI policies view racial integration as a basic principle of “moral fairness.” Fairness, as expressed in the language of equality, seems to require constructing a world where all people are, in fact, equal.
Opponents of DEI often insist that this line of reasoning can be countered by distinguishing between “equality” (equal treatment) and “equity” (equal outcome). However, while this is an important analytical distinction, it does not address the concerns of those who view racial integration as a moral principle that should be enforced by the state. Nor does it resolve the problem created by the Fourteenth Amendment and civil rights laws. Discrimination cases are based on comparison, and there must be something to compare in order to prove the discrimination. The comparison—not just the treatment itself—is the whole point of discrimination complaints.
The reason Booker T. Washington and Zora Neale Hurston view black education as they do is that they were genuinely concerned with the education of black children, and not merely with comparing black and white children with a view to measuring attainment gaps and integrating races. Within the legal framework, discrimination cases are not concerned with how anyone has been treated, but entirely concerned with comparing the experience of different groups and paying out compensation for any “gaps” that may be found. The principle of equal protection is therefore based on comparison—in practice, fairness as equality expresses the belief that fair treatment can only be attained by “equalizing” group achievement.
In the example of Brown v. Board of Education, it is clear that the concern was never with how black children were treated by their own schools or by the state—the complaint was entirely about racial segregation. The Supreme Court held that “even though the physical facilities and other ‘tangible’ factors of white and Negro schools may be equal” racial segregation and provision of separate schools violated the equal protection clause. The Court held that the key issue is not whether the segregated facilities are equal, but whether the effect is to create equal social effects. Thus, the effect, or the outcome, was seen by the Supreme Court as part of the test of equality: “We must look instead to the effect of segregation itself on public education” (emphasis added).
Drawing upon previous cases involving segregated law schools, the Court emphasized “those qualities which are incapable of objective measurement but which make for greatness in a law school.” The reasoning was that we cannot ascertain whether opportunities are equal simply by reference to material circumstances and “tangible” or “measurable” factors. The court focused also on “intangible considerations” such as a student’s “ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession.” In other words, equality entails being included within the same educational opportunities as other students, meeting with the same people and enjoying the same opportunity to interact with them. A separate opportunity that is tangibly and materially equal but does not include the same people in the same place is therefore not seen as an “equal opportunity.” Equal opportunity does not merely refer to the starting line as many suppose. It refers to the entire experience of the group mounting the complaint. It is within this body of jurisprudence that the notions of “diversity” and “inclusiveness” have established their roots.
To those who regard racial segregation as morally repugnant, the issue that concerns them is not whether people are equal but whether they are separate. Their objection to racial separateness is not confined to segregation laws but also encompasses non-participation of black people in activities dominated by white people (note that their belief in “white supremacy” doctrines prevents them from being concerned about white people being excluded from activities designated for black people). Their notion of equality does not distinguish treatment from outcome, and their schemes therefore cannot be dismantled by inviting them to consider that analytical distinction. As can be seen in the DEI litigation, abolishing formal segregation was merely the first step in their social engineering project. They now want further interventions to ensure that race mixing is being actively encouraged in every aspect of school life and funded by the federal government. The notion of “equality” merely serves as the most convenient institutional vehicle through which they can achieve their social engineering goals.
In that way, the concept of “equality” has been transformed into a general vehicle for state interventions designed to give effect to social engineering. Once embarked on this path, it seems to follow that students who cannot easily participate in such opportunities should be given extra help to enable and support their participation. Then it is but a short step to saying that the disadvantaged party should be favored or preferred, in order to bring him to the same level as the party who is “privileged.” Equal opportunity soon turns out to mean more opportunity. This is precisely the claim made by proponents of DEI—their argument is that it is only by encouraging diversity, and trying to include the marginalized, that we can promote “true equality.”
Brown v Board of Education illustrates how the Fourteenth Amendment equal protection clause has been transformed by the Supreme Court into a tool for social engineering. It performs this function by creating special rights for special groups based on their identity and coercing people
into contracting or associating with others against their will. The notion of “diversity” is perfectly suited for this type of social engineering, as is clear from other Supreme Court decisions. In the 2003 case of Grutter v. Bollinger, the Supreme Court held that it was lawful for universities to discriminate based on race in their admissions process (though only temporarily) in order to achieve alleged “educational benefits of diversity.” The case of Bollinger was recently overruled by the Students for Fair Admissions case which prohibits affirmative action in college admissions, but the concept of “diversity” established in extensive case law is still influential. Bollinger purported to uphold the 1978 case of Bakke, a “binding precedent establishing diversity as a compelling state interest.” In Bakke, “Justice Powell emphasized that the “‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation.” In Bakke Justice Powell had emphasized that by diversity he did not simply mean racial quotas. Under the Bollinger principle, diversity was seen as a legitimate goal even though quotas and targets were still illegal. But in reality, unofficial quota systems are difficult to police if they are framed as “promoting diversity,” as long as the justification given is that race or ethnicity is “but a single though important element” rather than being the sole qualifying criterion.
Social engineering—through concepts of “equality” or “diversity”—is incompatible with liberty. The egalitarian premise—which was used by Radical Republicans to justify pushing through the Fourteenth Amendment and override the objections of the Southern States who were opposed to it—must be rejected. Egalitarianism poses an insurmountable threat to individual liberty. As Murray Rothbard pointed out, “the individualist is not an egalitarian.” The individualist does not evaluate his own life entirely by comparison with others, nor call in the state to “equalize” his life experience with that of others.
