Almost all Americans want our country to be fair. Fairness doesn’t define itself, though. An enormous gulf separates what most Americans mean by fairness from what our elites seek to impose in its name through the capture and repurposing of our leading institutions. Despite the apparent balance of forces, the American people will eventually win the resulting showdown.
Why? We’re a republic—voters, not elites and the institutions they control, have the final say on policy. And thanks to our long-standing, intergenerational unanimity on what fairness means, the republic’s laws are firmly on the public’s side.
The divide over what is fair boils down to the difference between real, genuine equality and so-called “equity.”
The American people want equality. We always have. Since no later than the ratification of the 14th Amendment (Lincoln would have said since Congress’ passage of the Declaration of Independence), Americans have paid fealty to all men being created equal, thus entitling each of us to equal treatment—by our governments, and in our laws. To realize that equality in daily life, Congress—through the Civil Rights Act of 1866 (forbidding racial discrimination in contracting)—and a number of the states—through broader anti-discrimination statutes such as New Jersey’s Law Against Discrimination, New York’s Human Rights Law and California’s Unruh Civil Rights Act—have required that same equality of treatment in our commercial law.
A view inside the Lincoln Memorial on the National Mall in Washington, D.C. on February 23, 2022.ROY ROCHLIN/GETTY IMAGES
But the widely proclaimed “racial reckoning” of 2020 led our elites to decide that they know better. They decided that fairness is a result, not a process. They decided that fairness requires active discrimination against those who’d do too well under equal treatment; that what’s fair is whatever it takes to produce matching results for disparate groups. As a result, our elites have moved to replace the equal treatment of all with the heavy-handed pursuit of “equity” in institution after institution.
You can see the move anywhere you look. School boards (ranging from Fairfax County, Virginia to Boston to San Francisco) changing admissions rules to get rid of “excess” Asians on their best campuses. States (ranging from Vermont to Utah to New York to Minnesota) allocating COVID-related health care based on race. NASDAQ and the SEC all but compelling the reallocation of corporate directorships based on race, ethnicity, sex and gender. The ABA, in its role as law school accreditor, seeking to force the indoctrination of all new lawyers into the “equity” model.
Perhaps most troubling, the corporations most associated with America responded by bragging that they are actively discriminating in hiring, promotions, board nominations and contracting, all to nominally become more “inclusive” and to yield “equity” and “diversity.” Starbucks‘ website boasts that it will shift supplier purchases based on the race of ownership, shift media-buys based on the same and consciously manipulate employment decisions to produce a workforce (and leadership) matching predetermined demographics. McDonald’s website brags of the same, with the added intention to discriminate across these fields based on sex and gender, as well as race and ethnicity.
They can’t legally do any of these things, for the same reason that Coca-Cola couldn’t legally choose which lawyers to employ and how much to pay for its services based on the race of those staffing its various matters. Coke’s last year shows how people can stop these affronts. Coke announced what it would do. Shareholders complained that establishing a policy of violating the law threatened the company and their investments in it. Rather than litigate whether pursuing “diversity” through race-based contracting was consistent with the fiduciary obligations that the company’s officers and directors owe investors, Coke shifted gears and “clarified” that the announced policy had “not been and [is] not policy of the company.”
With or without the involvement of the courts, Starbucks and McDonald’s (both of which received parallel demands in March) will be brought to the same place. The law here is no more complicated than the American sense of morality it embodies. Americans know what’s right—equal treatment—and the law is on our side. We just need to be brave enough to accept the elite jeers that come with saying “no,” and to demand that American companies live up to American ideals. When we do that, our laws will do the rest, whatever our elites might prefer. If we will it, equality’s triumph is no dream.
This piece originally ran in Newsweek on April 25, 2022.