The U.S. Department of Justice has joined a lawsuit alleging race and sex discrimination against the Missouri State High School Activities Association (“MSHSAA”), and rightfully so, because if reports are correct, the MSHSAA’s rules are indeed discriminatory.

According to reporting from the Missouri Independent, MSHSAA’s rules require two of its 10 board members to be “candidates representing the underrepresented gender of the current board or an under-represented ethnicity.”

Supporters view the rule as a tool to promote fairness and inclusion.

It isn’t. The problem comes when a position becomes vacant. If eight of the remaining nine board members are all men or all white, for example, the rule would indicate that the candidate must be a woman or an underrepresented minority. This effectively bars candidates based on sex or ethnicity.

The Constitution protects individuals, not categories. However well intended, policies that distribute opportunity based on identity rather than merit raise immediate equal protection concerns. It demeans people to reduce them to nothing more than an identity marker, and it undermines government efficiency to exclude large numbers of candidates for a position because of their race or sex.

We’ve seen this dynamic play out in other contexts. In Arkansas, for example, a prospective member of a state licensing board was effectively barred from consideration because state law required the board to meet racial composition targets. He sued, and the Arkansas Legislature repealed the law. Lawmakers made clear what should have been obvious from the start: public appointments ought to be based on “experience and expertise, not the color of their skin.”

What remains to be determined is whether the MSHSAA is a public institution. It is organized as a private non-profit, but its employees are eligible for the Missouri state employees’ retirement system.

At its core, the matter can be reduced to whether institutions should discriminate based on sex or ethnicity. Given the MSHSAA’s broad mandate, it should not.

The post When Diversity Becomes Discrimination appeared first on Show-Me Institute.

Last week, I wrote about how Saint Louis County was considering a bill that would require landlords in unincorporated parts of the county to apply for licenses in order to rent out property. Proponents of the measure claimed that this bill will only affect those landlords who don’t keep their property up to standards. However, due to push-back on the bill, the sponsor has made amendments to make it more palatable. Yet these changes do little to actually improve the situation for landlords in the county.

The main problem with this bill is that it still makes landlords responsible for the actions of their tenants. If a renter received a felony conviction for one of a long list of offenses (selling drugs, gambling, and prostitution are included), and if even one of these incidents happened on the rental property, the landlord would be obligated to evict the tenant. If the landlord failed to do so, his or her license would be revoked.

Such a provision harms both landlords and their tenants. It harms landlords because it denies them flexibility in dealing with tenants. For example, what if a tenant is convicted of dealing drugs, but his wife was not guilty of any felony? Is the landlord supposed to evict the entire family because of the actions of one person? The law is unclear, but it seems to me that as long as the rest of the tenants keep up their end of the lease agreement, the landlord should have the option of letting them stay.

This bill would also harm some renters because this provision encourages landlords to discriminate based on the possibility of some future illegal activity. Why enact a law that gives cover to this sort of discrimination? It doesn’t make sense.

Putting aside this provision, the fact that landlords need to jump through yet another bureaucratic hoop in order to lease property makes it less likely that landlords will enter the market, thus hurting consumer choice. Nobody wants substandard housing, but licensing landlords is not the way to address this problem in Saint Louis County.

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Under the provisions of this ordinance, property owners seeking to rent to tenants will have to fill out an annual application so that they may receive this license. Proponents argue that only those who don’t keep their property up will have to worry about the contents of this ordinance. Yet, this ordinance creates many negative incentives for landlords as well as another hoop for them to jump through in order to do business.

A major issue is the provision that the license can be revoked if an occupant of the property is convicted of one of the following: selling drugs, selling alcohol, gambling, or prostitution. This encourages landlords to discriminate under the auspices of some possible future illegal activity. Even if the landlords didn’t discriminate, forcing them to evict people on the basis of committing a misdemeanor in order to keep renting property is excessive.

Even if the final ordinance lacked this provision, creating more paperwork for landlords is no way to encourage more people to enter to market. For example, this ordinance could push out people who don’t plan to be full-time landlords, but might want to rent out their house for a few months. Would renters be better off with fewer landlords out there renting out property?

Licensing requirements should be reserved for a few select professions (e.g. doctors). By requiring licensing for more and more professions—like landlords—the government closes out that profession to many new entrants and reduces consumer choice. Licensing landlords will do exactly that. 

The post The Ever-Growing Bureaucracy appeared first on Show-Me Institute.

It’s true that a strict libertarian or free-market perspective might prevent the government from interfering when individuals choose to act in a discriminatory fashion. This may make people uncomfortable. But, as Mr. Paul pointed out, the very idea of freedom requires us to tolerate certain decisions that we might find distasteful, in order to ensure that we have the liberty to make decisions that others might find distasteful. For example: Our nation prizes freedom of expression so much that our constitutions deny governments the authority to restrict or punish speech, even if the ideas expressed are almost universally regarded as offensive. Respect for this form of freedom is so ingrained in our culture that its wisdom is only rarely challenged. Mr. Paul was trying to help Ms. Maddow understand that, similarly, if one believes in individual liberty then one must necessarily be prepared to tolerate the fact that some individuals will use that liberty in ways that others might find offensive.

The proper question, I believe, is how best to deal with those situations when they present themselves. Where speech is concerned, if someone says something offensive, the ideal solution for those offended would be either not to listen to that speaker or to respond with their own speech. Likewise, the best response to discriminatory business establishments would have been for others to boycott the offending establishments and/or to open non-discriminatory establishments of their own. The same principle can be applied to businesses that refuse to hire or promote qualified minority or female applicants. These discriminatory decisions create an opportunity for competing businesses to hire those same applicants — which, presumably, will allow them to offer higher-quality services than the discriminatory employer. The effect might not be immediate, but eventually it will become plain that discrimination is both foolish and costly.

It is also vitally important to remember that governmental power is a double-edged sword. A power that can be used in ways of which you approve can also be used in ways that you find repugnant. The problem of segregation/desegregation is a useful example, because the governmental action at issue represented flip sides of the same freedom-denying coin. In much of the Jim Crow South, segregation was not optional. Those allowed to vote — almost exclusively white people, many of whom had an interest in maintaining a privileged status in society — elected representatives who decided that individual business owners were not permitted to offer a desegregated environment. Thus, all people were forced to live with governmentally enforced segregation. After the Civil Rights reforms were enacted, individual business owners were not permitted to offer a segregated environment — all people were forced to live with governmentally enforced desegregation. At all times, individual citizens had only a limited ability to make these choices for themselves.

In a libertarian or free-market paradigm, the government would not have the authority to dictate these matters to individual in either direction. The government’s sole responsibility would be to ensure that those who sought actively to harm others would be brought to justice and, if necessary, their victims compensated for any demonstrable, quantifiable injuries suffered. Those who believed strongly in the importance of segregation would be permitted to live out their choice — but would also be forced to suffer the disadvantages that would flow from their choice. Those who favored integration would realize a unique competitive advantage that, eventually, would reveal the wisdom of that approach.

To sum up, governmental control over the decisions that individuals may make for themselves presents a seductive shortcut for those who believe that the world ought to be ordered in some particular way. But not only does it represent a denial of individual liberty, a government vested with the power to dictate decisions made by its citizens can very easily turn against those who had hoped to use it to pursue their vision of a “good” society. As George Washington once warned: “Government is not reason; it is not eloquence; it is force! Like fire, it is a dangerous servant and a fearful master.”

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