The Revolution in Civil Rights Law

It has been nearly 30 years since the passage of the Civil Rights Act of 1964. By banning discrimination in employment and public accommodations the law was meant to minimize the role of race in the daily lives of Americans. Its result has been the opposite. The doctrine of "disparate impact" has had the astonishing effect of transforming laws that forbid racial discrimination into regulations that require it.

The shift from officially color-blind "equal opportunity" to a form of racial discrimination called "affirmative action" was not inevitable. What made this revolution in the laws possible was a combination of factors: ignorance about the nature of employment markets, unchallenged assumptions about the inveterate "racism" of whites, and—perhaps most important—the almost complete failure of whites to defend their own interests.

Today it is taken for granted that without civil rights laws there would be wholesale job discrimination against blacks. Is that really true? Was it ever true? In his 1992 book Forbidden Ground: The Case Against Discrimination Laws, Richard Epstein argues convincingly that anti-discrimination laws are not necessary and that the employment provisions of the Civil Rights Act of 1964 should be repealed. Professor Epstein's thesis can be simply summarized: if some prejudiced employers refuse to hire qualified blacks, the wage...

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