Did the Supreme Court get it right about affirmative action and opposition to same-sex discrimination laws?

The right to choose for individuals and is a fundamental human right

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Robert Wright’s review of my book captures the essence of my journey in America. 

“There is a right way and a wrong way, always choose the right way.”  Abraham Sabrin (1914-2001)

On June 29 the Supreme Court in a 6-3 decision struck down the use of race in college admission decisions.  Today, the Court ruled in another 6-3 decision that a web designer did not violate the “rights” of same sex couple when she refused to do work for the couple. 

Everyone makes choices from the benign, what ice cream to buy, what restaurant to go to dinner, to more serious choices, whom to date and marry, who will be their friends, what neighborhood to live in, to what business or organization to work for.  Businesses and organizations make scores of decisions as well:  where to locate, whom to hire, and what suppliers to purchase goods and services from, etc. 

Individuals are free to choose—to “discriminate” --to their hearts content.  And it is perfectly legal because of a couple of fundamental principles, the right of association, and the right to spend money as one sees fit.   

Would anyone from a minority group sue (whom?) because he/she does not have any white friends, dates, etc.?  Would a minority business owner sue white people because he does not have white customers?  Would any legislator start foaming at the mouth and write a bill forbidding individuals from not having white friends or dates, or forcing white people to patronize black-owned businesses?  This would be the height of absurdity.  And of course, whites could not object if they are being discriminated against if they don’t have minority friends, dates, patrons, or employees.

By the same token, if individuals are free to “discriminate” in every decision he/she makes regarding purchases, friends, dates, shouldn’t businesses—private or pubic (stockholder owned)—nonprofits (colleges, social service organizations, hospitals, etc.) also have the right to choose? 

In other words, what is legal for an individual should also be legal for a “collective” entity.  Period.  There should be no anti-discrimination” laws that are applicable for some and not others. 

However, government is the only entity that should not discriminate.  Yet governments discriminate with impunity.   The income tax is a prime example.  Tax rates are discriminatory.  Individuals and businesses pay diffident progressive rates depending on their income. In fact, even a flat tax of say 10% is in fact “discriminatory” because an individual will pay $100K if he has a one million income while someone earning $90K would pay nine thousand dollars.  The only nondiscriminatory tax is a head tax.  Everyone pays the same amount, just like we all pay the same amount for a quart of milk, a gallon of gas, etc.  And if businesses want to give senior citizens a price break like they do at movie theaters, so be it.  This is a reasonable business decision. 

As Laurence M. Vance points out in his essay, Discrimination and the Constitution:

·       Discrimination is neither a dirty word nor an evil deed.

·       There is no right to service.

·       Discriminating against someone is not aggressing against him.

·       To outlaw discrimination is to outlaw freedom of thought and freedom of association.

·       A free society is not free of discrimination, but a free society is free of discrimination laws.

·       A free society must include the freedom to discriminate against any individual or group, on any basis, for any reason.

Thus, should an institution of higher learning receiving taxpayers’ dollars use race as an admission criterion? To be consistent with the right of association, Harvard or any other institution can use race or other criterion to determine its freshman class. But with the Supreme Court ruling overturning race based admissions, Harvard can presumably use zip codes to “diversify” its incoming freshman class.  A totally private institution can determine its admission criteria based on race, sexual orientation, religion, height, weight, or any criteria it believes is an integral part of its admission process. 

Then, what about a business or nonprofit that gets government contracts? Can it not “discriminate”? Yes. If people are upset about a business, college or university, or nonprofit discrimination, they can boycott that entity.

On a personal note, when I applied for the tenure track finance position at Ramapo College in 1987 after three emergency appointments, the search was halted because no minority candidates applied.  The HR department then placed ads in minority newspapers to no avail.  No minority candidate applied. I was hired after the search committee made its recommendation to the dean and then up the administration ladder.  Everyone signed off on the committee’s recommendation which led to my 35-year career at the college. 

I also served on many business school search committees and on searches for administrative positions.  We always tended to get a “diverse” pool of candidates and “affirmative action” was never an issue.  The committees’ consensus led to the best candidate being hired based on their experience and credentials, nothing more. 

My latest piece on the economy was published in Fortune, https://fortune.com/2023/03/27/recession-2023-layoffs-tech-finance-unemployment-outlook-fed-rates-murray-sabrin/  This is an update of my 2021 forecast, https://fortune.com/2021/12/09/next-recession-heres-everything-bubble-markets-2021-2022-covid-murray-sabrin/ 

Murray Sabrin, PhD, is emeritus professor of finance, Ramapo College of New Jersey. Dr. Sabrin is considered a “public intellectual” for writing about the economy in scholarly and popular publications. His new book, The Finance of Health Care: Wellness and Innovative Approaches to Employee Medical Insurance (Business Expert Press, Oct. 24, 2022), and his other BEP publication, Navigating the Boom/Bust Cycle: An Entrepreneur’s Survival Guide (October 2021), provides decision makers with tools needed to help manage their businesses during the business cycle.  Sabrin's autobiography, From Immigrant to Public Intellectual: An American Story, was published in November, 2022.