Why State Enforcement Of “Fairness” Is Wrong

Authored by Wanjiru Njoya via The Mises Institute,

There is a popular perception that the role of the state is to uphold and enforce “fairness” much like a playground monitor ensures that children are not bullying each other, and that everyone is getting a fair chance to be included in the game. The fear is that if teachers do not monitor the schoolyard it might descend into the Lord of the Flies. Likewise, the state is said to have a moral duty to ensure fairness and goodwill among all citizens in their interactions with each other.

In Freedom in Chains James Bovard criticizes the trend towards seeing the state as the fountain of fairness, depicting it as “the nationalization of fairness.” In the US context, he traces the origins of nationalizing fairness back to the New Deal, when President Roosevelt’s administration sought to establish “fair” prices, “fair” wages, and “fair” competition, by mandating regulations which Roosevelt said would counter “the forces of selfishness.” Bovard highlights the example of promises made by the National Industrial Recovery Act to “provide for the machinery necessary for a great co-operative movement throughout all industry in order to obtain wide re-employment, to shorten the working week, to pay a decent wage for the shorter week and to prevent unfair competition and disastrous overproduction.”

Unfair competition was criminalized under the National Recovery Administration, and Bovard cites the example of a New Jersey tailor “jailed for ‘charging thirty-five cents for pressing a suit,’ in violation of the NRA code that mandated a 40-cent charge.” The administration arbitrarily decided that while a 40-cent charge would be fair, a 35-cent charge would be unfair and proceeded to impose criminal penalties.

Bovard criticizes the idea that the government has some sort of magical ability to produce morality and fairness in all human interactions: “modern morality is based on ‘push-button fairness: the government announces a new regulation, enforcers twist arms, and – voila! – fairness triumphs.” Yet over time people have come to want and expect precisely this from the state. Bovard highlights the shift from seeing the function of the state as that of building roads and bridges and providing police and fire services, to its current role where it purports to stand against selfishness, greed, racial discrimination, and other perceived moral vices.

Bovard highlights the same arbitrary determination of fairness in civil rights policies. The Equal Employment Opportunity Commission attempts to ensure fairness by eradicating disparities or performance gaps and as Bovard argues, “for all practical purposes, “fairness” is whatever EEOC officials choose to impose.” Although quotas are officially prohibited, Bovard points out that “by the late 1960s, the EEOC had intentionally subverted the law by establishing a definition of discrimination that was the opposite of the one that Congress had specified.” The EEOC investigates discrimination by reference to numbers and proportions of different groups and measures its success by an improvement in the numbers. Bovard terms this “fairness by the numbers.”

“Fairness by the numbers” is also the driving force of Diversity, Equity and Inclusion polices. These policies measure DEI by reference to the proportionate numbers of different races, sexes and genders. They set up a measure of fairness that is only achieved when the proportion of people in any institution reflects their demographic representation.

There are many ethical problems with fairness by the numbers, not least that it erodes contractual freedom, freedom of association and free speech. Further, in schools and colleges it relies on indoctrination through the only ideology in which fairness by the numbers is deemed to be a worthy goal: critical race theories. This is why Alabama has enacted a new law, 2024 Ala. Act 34, which bans the divisive concepts promoted by critical race theories, namely:

1. That any race, color, religion, sex, ethnicity, or national origin is inherently superior or inferior.

2. That individuals should be discriminated against or adversely treated because of their race, color, religion, sex, ethnicity, or national origin.

3. That the moral character of an individual is determined by his or her race, color, religion, sex, ethnicity, or national origin.

4. That, by virtue of an individual’s race, color, religion, sex, ethnicity, or national origin, the individual is inherently racist, sexist, or oppressive, whether consciously or subconsciously.

5. That individuals, by virtue of race, color, religion, sex, ethnicity, or national origin, are inherently responsible for actions committed in the past by other members of the same race, color, religion, sex, ethnicity, or national origin.

6. That fault, blame, or bias should be assigned to members of a race, color, religion, sex, ethnicity, or national origin, on the basis of race, color, religion, sex, ethnicity, or national origin.

7. That any individual should accept, acknowledge, affirm, or assent to a sense of guilt, complicity, or a need to apologize on the basis of his or her race, color, religion, sex, ethnicity, or national origin.

8. That meritocracy or traits such as a hard work ethic are racist or sexist.

The reasoning behind this Alabama initiative, as stated by State Senator Will Barfoot, is that “education must return to its essential foundations of academic integrity and the pursuit of knowledge instead of being corrupted by destructive ideologies.” As State Representative Ed Oliver expressed it, DEI policies only “deepen divisions, set up race-exclusionary programs and indoctrinate students into a far-left political ideology.”

The Alabama ban on DEI is an important step in the right direction. Ultimately, no state has a legitimate role in indoctrinating school or university students in how they ought to understand their racial identity, or how they ought to understand their religion or their sex. These are matters of individual liberty and personal conscience, not state edicts.