IN THE PAST few decades as the country has evolved toward equality, moves from universities like crafting admissions policies to admit only so many students of one race or shaping a company boardroom based on the sex of its members would’ve been thought reprehensible. But now, doling out benefits and burdens on the basis of immutable characteristics and group membership is actively encouraged, faddish even.
Compared to the policies of the past, today’s race-crafting is done with good intentions. In fact, proponents argue that their policies are intended to correct for pernicious policies of old. But the solution to past or present historical wrongs is not more race-preferencing—it’s opportunity. The more we tear down arbitrary, state-imposed barriers, the better we can allow people to lift themselves up and transform their communities.
Too often the government tries to help certain groups, rather than just getting out of the way. Take California, which has recently purported to champion equality for women by enacting a mandatory “woman quota” for the boards of publicly held corporations. This broad, perpetual quota applies to corporate boards across every industry in the entire state of California, regardless of whether they have any history of discrimination, irrespective of female representation at a given company, and notwithstanding current hiring patterns. The irony is that prior to going into effect, women were securing 40% of board seats annually. Now the government takes credit for the number of women being hired, relegating these women to “quota hires” in the process. Perhaps worse, in an attempt to justify its law in court, the state has relied on stereotypes about women, saying women are more likely to follow rules, keep corporations in compliance, allow less corporate debt, and act with a certain leadership style that they suggest benefits women—despite the reality that the Supreme Court has repeatedly repudiated basing laws on stereotypes about women.
In trying to help women, California has ignored all the ways in which women are already excelling in the corporate world and the means by which the government’s own policies are holding women back.
At the onset of the COVID pandemic, female-led companies were among the first to step up with marvelous innovations. The female-led Nurx and Everlywell, for example, were early to develop at-home COVID-19 tests. Woman-headed AVA, a telehealth startup that also makes wearable devices that track the temperature of women seeking to get pregnant, quickly began working with researchers to pivot its hardware to detect COVID-19 infection. And it was two women, Melissa Hanesworth and Tara Engel, who came up with the idea of retooling Pernod Ricard’s distilleries to produce industrial quantities of hand sanitizer.
Yet when these women stepped up, it was the government, not misogyny or discrimination, that hampered their endeavors from taking off. When Nurx CEO Varsha Rao and Everlywell CEO Julia Cheek developed the desperately needed at-home COVID-19 tests, instead of working with the companies to expedite safely getting the tests to the public, the FDA swiftly shut them down because they hadn’t yet gone through the normal onerous approval process that can take years to complete (obviously time the world didn’t have during a global pandemic). And instead of government regulators embracing telehealth companies, like AVA, as easy and efficient ways to safely get people healthcare during a pandemic, strict telehealth laws overly burdened and sometimes outright banned telehealth. Only until recently, even Medicare and Medicaid reimbursement rules for telehealth were extremely strict.
Arbitrary laws stand as a barrier to women succeeding. Rather than engaging in paternalistic attempts to help them by doling out benefits on the basis of sex, like California’s quota for corporate boardrooms, governments would help women more by simply getting out of their way.
The Fourteenth Amendment promises not just equality of treatment, but equal enjoyment of liberty—particularly the liberty to earn a living. Civil rights leaders throughout history have recognized the tie between equality and economic opportunity.
Frederick Douglass, for example, called the “right to work the most precious liberty that man possesses.” Later, when talking about how the government should act with regard to freed blacks, he said, “Do nothing with us! Your doing with us has already played the mischief with us… All I ask is, give him a chance to stand on his own legs! If you will only untie his hands, and give him a chance, I think he will live.”
When the Supreme Court later eviscerated the guarantees of the Fourteenth Amendment in the Slaughterhouse cases, Justice Stephen Field objected that “no privilege was more fully recognized… than that every free [person]… was entitled to pursue his happiness by following any of the known established trades and occupations, subject only to such restraints as equally affected all others.”
Opportunity is central to civil rights. Equality requires the ability to work, earn, and use the fruits of those labors as one sees fit.
Yet the term “equality” has been hijacked by those who seek equality of outcome. Under this worldview, the government must affirmatively engage in unequal treatment on the basis of race to ensure equal numbers. Civil rights leaders throughout history have understood equality as meaning something different: equality of liberty. This requires that the government not only treat us equally without regard to race or sex, but give each of us equal liberty to stand on one’s own two feet and pursue our own version of happiness.
The problem with preferencing some people based on race or sex necessarily entails burdening others solely because of their own skin color or sex—which is inherently illegitimate. And to the extent barriers exist that burden certain populations, preferences don’t remove them. They paper over them. They are sloppy tools for undoing injustice and often create a permanent state interest in balancing workplaces, schools, or government contracts for the preferences’ own sake. Where the state seeks balance rather than equality, it elevates group membership over individual consideration, even though the former is entirely arbitrary and out of our control.
What’s the solution? Tearing down barriers that keep people back—and allowing all people to flourish.
Give people the ability to work. Give them the ability to change their communities. Give them the opportunity to flourish, given their unique talents, interests, and proclivities. The solution to racism and discrimination is not more group-based treatment trying to engineer equal outcomes—it’s giving people their constitutional right to pursue happiness. Only then will civil rights truly be realized.
