Response to Walter Block’s “Are Racial and other Background Checks Discriminatory?”

A friend of mine recently shared this article with me, by the well-known economist Walter Block.  I found the weakness of the arguments here, surprising coming from a man of Block’s acclaim.  In response I wrote the following summary of my objections (and a few areas of agreement to Block’s piece).

First, I completely reject Block’s central point, indeed the only point of the first few paragraphs, that discrimination based on credit history or criminal history is the same as discrimination based on race.  Racial discrimination means, discriminating based on race, when all other factors are equal.  Discriminating based on factors other than races is not racial discrimination even if, as in this case, it does favor some racial groups over others.  This is a very simple concept and I am amazed Block dropped the ball on it.

I’ll be the first to admit, I am not a lawyer, and not particularly well versed in all the ends and outs of our anti-discrimination laws.  It may be that our existing laws may be interpreted in such a way that using these types of checks violates them, but have not heard a convincing case to interpret them this way, and block’s doing so seems to be based upon a fundamental misunderstanding of what racial discrimination is and is not.

I will point out that there are almost certainly cases where employers do use such checks and other factors, to legitimize not hiring someone, they would not otherwise have not hired, for racist reasons, but this strikes me as different matter and should not be confused with employers using such checks without racist intent, which Block seems to be doing here.

I completely disagree with Block’s assertion that The United States Equal Employment Opportunity Commission position’s “is correct beyond question: such background checks are indeed discriminatory since black people form a higher percentage of the prison population than do either whites or Orientals.”  The EEOC lost the case for good reason.  As best I can tell their argument was based on the same bad logic Block is using.  Furthermore I have to ask:  Who uses the term “Orientals” in this day in age?  What is this the freaking 1940s?

The one part of the Block’s essay I agree with was his second to last paragraph, which, I will happily repeat it here:

“…we can and should repeal laws that unfairly and disproportionately impose criminal penalties upon different races of people. Foremost amongst these would surely be drug legislation. Blacks are incarcerated at greater rates than their share of the overall population for victimless crimes involving drugs such as marijuana, cocaine and heroin. There are many other good and sufficient reasons for repealing such vicious legislation, but this is surely one of them. Without our various narcotics acts, the disproportionate number of black criminals would certainly decrease, and radically so. And, as it happens, these laws were initially enacted on a racist basis: not against the black community, but targeted at the Chinese in the early part of the last century, to stop them from patronizing opium dens.  Thus, there is yet one more reason for their repeal.”

I’m thrilled Block made this point, and I wish the rest of his post was this salient.  Unfortunately, after this paragraph, Block falls sort of consequential double speak where he agrees with the court decision but does not: “Judge Titus surely exhibited “common sense” in his ruling. If firms cannot legally prefer honest to dishonest workers, our entire civilization is at risk. But, just as assuredly, Titus is a law breaker. Were he a libertarian jurist, he would have found the Freeman company in violation of the laws prohibiting discrimination, but still rendered a not guilty charge based on the understanding that the law condemning such discrimination was itself invalid.”

It is very odd that Block states “Were he a libertarian jurist, he would have found the Freeman company in violation of the laws prohibiting discrimination”.  There is nothing about being a libertarian that requires one to take up Block’s misunderstanding of the concept of racial discrimination.  Furthermore it seems as if Block himself is admitting, that employers using the checks are not discriminating based on race, but how honest or dishonest they believe the potential employees to be.  Strangely block seems to defend, the use of background checks which he considers racist, though I acknowledge that he does make one good proposal here to make them less so.

I will also point out that criminal background checks almost certainly favor White Americans because police use racial discrimination when it comes to who the stop, search, arrest and imprison.  But, at the end of the day, it means the police and the legal system are involved in racial discrimination, not the employers, who are simply using the one tool they have to weed out candidates with criminal or credit problems.

Overall, I think Block’s argument was based on a deeply flawed misunderstanding about what racial discrimination is and is not, so I won’t repeat myself further on this.  I agree that while we should oppose discrimination based solely upon race, and racism in general, but that use of force through the state is problematic way of doing this.  I also like that Block has pointed out that these checks do benefit some races of the others, this is a serious concern, but basing decisions on criminal background or financial background should not be equated with basing them on race.

Editor’s note: In writing this I want to make it clear, that I am in no way defending employers who do discriminate based on race, nor am I trying make under-emphasize the severity of this problem.  Racial discrimination, in the work place and in the legal system, is a huge problem in America and is completely indefensible.  I express my support to those fighting racism and racial injustice throughout society. 

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One Response to Response to Walter Block’s “Are Racial and other Background Checks Discriminatory?”

  1. Pingback: Walter Block is An Idiot: “A Response Feminists are not libertarians, neither are gays” | The Wilson Report

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