Full Disclosure Versus Racism*
When people own restaurants unburdened by either national or local legislation and regulation addressing the reparation of past injustices – they nevertheless open their establishments to the public; and when they announce employment opportunities they usually do so to the public at large. In a competitive, free market opportunities at the workplace are usually announced as open to all in the qualified work force; and houses are usually being marketed to those who are shopping for homes to purchase.
The examples could be multiplied endlessly: in all these cases the common factor is the implicit claim made by those who are opening their hotels, restaurants, homes, or business to potential trading partners that anyone in the market may make an offer and be considered. A restaurant is open to people seeking to buy a meal, with some conventional requirements satisfied (such as, they are dressed decently, don’t behave disorderly, etc.). Thus, if no racial, sexual, ethnic or similar criteria are specified as terms of trade, none need be considered by those attempting to do business. Entering a restaurant with sufficient funds to pay for the meal (and well behaved enough not to constitute a nuisance) should suffice to be served a meal. If and when a proprietor tries to eject one for racial or ethnic reasons, that would constitute a breach of implied contract or fraud, failure to live up to the tacit terms of trade. All such conduct should be legally actionable in the courts of a free society.
This approach differs from legislation barring racism, sexism, etc., by making it entirely legal to discriminate provided one announces the policy up front. “Whites only”, “women only,” “blacks only,” “Catholics only,” “Baptists only,” and the like could be made part of the advertisements for trade and there would be nothing anyone, including the government, could legally object to.
At first blush this may appear intolerable, yet in many areas of life various kinds of discrimination, more or less reasonable, is accepted – in church attendance, in hair salons or other services aimed at only women, men or some other specific group and in some clubs (e.g., American Association for University Women, Parents Without Partners, bowling leagues, bridge clubs, etc.). Many of these organizations are formed around decent, legitimate activities. Yet some may well involve activities that at least some members of the organizations should not engage in. And sometimes the organizations themselves could be considered irrational. Certain ideological, athletic or religious groups, fraternities, associations, and the like may well have dubious reasons for their existence but because of the principle of freedom of association, they must be legally tolerated.
Moreover, in an unregulated market place it is no doubt possible to enter into contractual relationships that contain restrictive covenants, some of them beneficial, some indifferent to social values, and others in violation of decency and good will. But in the long run such policies would undermine a merchant’s market advantage – economists will point out the inefficiency of racism in the marketplace. Yet this is no remedy against the indecency of such racism perpetrated on those individuals who experience it at the beginning of the process that will undermine a merchant’s long run market success. Once the merchant’s racism, sexism or bigotry is up front and openly stated, its potency seriously diminishes. This is especially true in a democratic enough society such as ours, in which the government can muster a constituency for public policies that aim to further decency by way of legislation and regulation.
In any case, in a consistently free society, when policies of discrimination make clear sense, up – front announcements would find little opposition in the culture. But when they are irrational, unfair or pointless, their presence would expose them to public view and invite peaceful measures of opposition, criticism, ridicule, rebuke, or ostracism.
No doubt, some pockets of discrimination would persist despite their openness to scrutiny. But that is undoubtedly true now, in addition to the widespread violation of individuals’ right to liberty. So the comparison to some ideal of perfect racial, ethnic or sexual decency and harmony is unjustified.
The compensation and full disclosure approaches would be far superior to current policy. They would make possible remedies based on compensatory justice or rational terms of trade implicit in market exchanges.
These approaches would avoid the resentment now involved in all the affirmative action, reverse discrimination policies government has created and with which businesses only grudgingly comply. It would also ferret out those who have irrational attitudes, exposing them to direct criticism and making it impossible for them to invoke their more plausible objections to legally sanctioned but immoral coercion in their own defense.
All in all, these approaches seem justified on many fronts beyond our ability to explore here. But most important, they would avoid the current tragedy of public policies and legal mandates that constantly erode our basic right to individual liberty.