The Justice Department claims Yale has discriminated against white and Asian-American applicants in its affirmative action program. Perhaps it has. But it has done nothing illegal.
Discrimination would be illegal if it violates either the Constitution's equal protection clause or valid legislation enacted by Congress.
The equal protection clause, however, only limits state action, and Yale is private. But even if Yale were a public institution, discrimination in its capacity as a party to a voluntary association wouldn't violate a properly interpreted equal protection clause.
No state can deny "to any person within its jurisdiction the equal protection of the laws." Equal protection means that sanctions (deprivations of life, liberty or property) can only be imposed for violating general rules of action. The same rules must apply equally to everybody.
So called "Jim Crow laws" — threatening sanctions only against minorities or mandating segregation — clearly didn't pass this critical test. I don't concede that Jim Crow rules even rose to the dignity of "bad law." Rather, I call them pseudolaws. Phonies!
The relationship between a university — public or private — and its students has nothing to do with sanctions. It is a voluntary association, created by mutual consent of the parties to the exchange or transfer of inducements.
Rejecting an application denies an inducement rather than imposing a sanction. Rejection doesn't deprive the applicant of life. It doesn't reduce the applicant's liberty to enter voluntary associations with anybody willing to agree to associate. It doesn't take away the applicant's property.
Therefore the equal protection clause wouldn't apply to the alleged racial discrimination by Yale even if it were a public school.
Yale, however, is accused of violating the Civil Rights Act of 1964, which clearly does ban discriminatory private sector decisions.
But when the Civil Rights Act goes beyond requiring equal access to places of public accommodation (hotels, restaurants, etc.) it should be considered unconstitutional and therefore unenforceable.
Universities aren't places of public accommodation. They obviously cannot accept all applicants, first come first served, like a hotel. Yale typically rejects more than 32,000 of its 35,000 annual applicants, yet no one claims it has acted illegally 32,000 times.
My research indicates that laws must be rules of action, but discrimination isn't an action. Rather, it is a reason or motive for action. Rejections are deemed to violate the Civil Rights Act only only when the reasons for denying admission were bad ones. Rejection of student X can therefore be either legal or illegal, depending on the motives attributed to the university.
Since any action might be badly motivated, antidiscrimination rules destroy our power to protect ourselves from sanctions because we can't tell what actions are illegal. In effect they authorize government officials to impose sanctions arbitrarily on people and organizations.
Congress is only authorized to enact laws. The part of the Civil Rights Act which Yale's alleged discrimination violates should be considered unconstitutional because it is a rule of motivation rather than a rule of action, which means that it isn't law at all.
Public primary and secondary schools are different. Students aren't in a voluntary association with such schools, since parents have a legal duty to send them there (or to a suitable private school). Public schools are operated by government-as-trustee for children, a role in which it owes an equal duty to all beneficiaries of the trust. Discriminating between children would be an abuse of trust, which cannot be deemed authorized by the Constitution.
But Yale, like all other private and public universities, should be legally free to admit students on whatever basis — including affirmative action programs — it deems appropriate.
The wisdom of affirmative action programs is an entirely separate issue. There are excellent arguments on both sides of this question, and each university should remain free to make its own decisions here.
Paul F. deLespinasse of Corvallis is Professor Emeritus of Political Science and Computer Science at Adrian College. His most recent book is "Beyond Capitalism: A Classless Society With (Mostly) Free Markets." His columns have appeared in newspapers in Michigan, Oregon, and a number of other states. This column originally appeared in NewsMax.
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