Does a free society need anti-discrimination laws?

Are anti-discrimination laws essential to freedom, or hostile to freedom?

That’s the question two legal experts explored and debated recently during a luncheon presented by the Potenziani Program in Constitutional Studies and the Federalist Society for Law and Public Policy.

Richard Epstein, a professor at New York University School of Law and professor emeritus at the University of Chicago Law School, and Matt Coles, a faculty member at the University of California Hastings College of Law and the former deputy national legal director for the American Civil Liberties Union, spoke in the Oak Room at South Dining Hall.

“If you’re trying to figure out do we or do we not believe in nondiscrimination, the answer is we believe in both,” Epstein said. As examples, he noted that many people prefer to participate on same-sex sports teams but attend integrated, coeducational universities.

Epstein argued that, in competitive industries, anti-discrimination laws are unnecessary because people will naturally organize themselves in ways that represent society’s values.

“Some of you will say there will be some businesses that just exclude everybody on the grounds of race,” he said. “The response to that is, ‘Yes, and thank heavens.’ What you want to do is – if you have a group of people who are impossible to work with – let them organize themselves over there. That means our ability to organize will be easier because we don’t have to fight people on these issues.”

Coles, on the other hand, pointed to examples where the law was necessary to correct discrimination. The 14th Amendment was needed after the Civil War to begin the process of “undoing the greatest wrong in our heritage” – slavery. And the Civil Rights Act of 1964 was needed almost a century later because the states failed to uphold the 14th Amendment’s promise of equal protection.

“I think the real difference between Richard and I is this,” Coles said. “Richard, I think, has an abiding faith that a market economy left to its own will correct this problem and things will right themselves. I don’t have that faith, but I think part of the difference in view is due largely to my sense that the problem is much larger and pervasive than Richard thinks it is.”

Epstein countered, “I think, in fact, if you checked racial attitudes in the United States today, there is a marked transformation from what they were. … I think the private response has been much more powerful than the public response.”

Coles said the passage of anti-discrimination laws, such as the Civil Rights Act of 1964, are partly why attitudes have changed. “The reason law works is because law, I believe, is a society’s statement of its aspirations of what it wants to be like, and most people conform their conduct to what the law dictates,” he said.

Epstein pointed to events such as Jackie Robinson breaking Major League Baseball’s color line in 1947 and President Harry Truman abolishing segregation in the military by executive order in 1948.

“We would not have gotten the 1964 Civil Rights Act,” Epstein said, “unless and until we had a change in racial attitudes.”

Originally published by Kevin Allen at law.nd.edu on April 06, 2017.