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For True Equality, Reject Misguided Notions of 'Equity' | Opinion

Newsweek logo Newsweek 5/4/2021 C. Boyden Gray and Jonathan Berry
a close up of a stop sign: Coca-Cola logo in restaurant in Washington, D.C. © KAREN BLEIER/AFP via Getty Images Coca-Cola logo in restaurant in Washington, D.C.

The idea that equal outcomes—or "equity"—should be achieved at the expense of equal opportunity has come to be the dominant view of the American intelligentsia, especially with regard to race. Vice President Kamala Harris, for example, released a video not long ago arguing "that there's a big difference between equality and equity." Equality of opportunity is unfair; what's now needed is "equity," which "means that we all end up at the same place."

The private sector has begun taking this to heart. In a recent open letter, Coca-Cola's now-former General Counsel, Bradley Gayton, complained that Coke's previous efforts to increase racial diversity at the law firms it hires were "not working." Gayton announced that, moving forward, the company will require its outside law firms to meet racial quotas in staffing Coca-Cola matters. If a law firm fails to comply, it faces a non-refundable 30 percent reduction in legal fees and may be shut out entirely.

Coca-Cola's stated goal is that the legal teams it hires must "be representative of the population it serves." The policy's minimum racial quotas therefore roughly track the racial distribution of the American population at large, rather than the labor market for attorneys. Thus, for example, the letter requires that at least 15 percent of time be billed by black attorneys. Blacks make up approximately 13.4 percent of the U.S. population, but only 5.9 percent of attorneys. The policy also states that "these minimum commitments will be adjusted over time as U.S. Census data evolves."

These new policies did not come out of nowhere. In pushing for equal outcomes, the vice president and Coke are tracking self-described "anti-racist" activist Ibram X. Kendi. Kendi's thesis is simple: Because all racial groups are essentially equal, any disparity in outcomes is necessarily the product of racist policies, which therefore must be undone. Thus, the "only remedy to racist discrimination is antiracist discrimination. The only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination. ...And in order to treat some persons equally, we must treat them differently."

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If Kendi's approach seems simplistic and naïve, that's because it is. As economist Thomas Sowell has pointed out, the claim that racism is the sole reason for disparities between groups is provably false and, despite being tried over and over again, racially discriminatory social engineering projects mandating equal outcomes have never worked in practice. The people who benefit from these projects are primarily those paid to administer them.

This is not to say that many present racial disparities in the U.S. are not the product of past racial discrimination—clearly, many are. But the goal should be to eliminate the remaining obstacles to minority and individual success, rather than requiring permanent racial balancing in all spheres of life, enforced by explicit racial discrimination among groups.

The original anti-racists who wrote our civil rights laws—especially the abolitionists in Congress after the Civil War—knew of the downsides of Harris- and Kendi-style "equity." As we recently explained in a letter to Coca-Cola that we sent on behalf of our client, the Project for Fair Representation, the Civil Rights Act of 1866 prohibits racial discrimination in private contracting. As the late Justice Ruth Bader Ginsburg noted just last year (quoting abolitionist Senator Lyman Trumbull), that Act is a "'sweeping' law designed to 'break down all discrimination between black men and white men' regarding 'basic civil rights.'" And decades of Supreme Court cases have held that—no matter how well-intentioned—policies that seek to impose permanent racial balancing are legally prohibited. Coke's policy not only violates this principle, but it also pressures outside law firms to be complicit in the same wrong. Those law firms that give in face even greater liability, however, because racial discrimination against employees violates both the Civil Rights Act of 1866 and Title VII of the Civil Rights Act of 1964.

Some are unsatisfied by our laws against racial balancing. Surely, we must "do something" more substantial. To them, we repeat the warning that abolitionist hero Frederick Douglass offered America on behalf of blacks more than 150 years ago:

"[T]here is always more that is benevolent, I perceive, than just, manifested towards us. ...The American people have always been anxious to know what they shall do with us. ...I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us."

As Douglass and the Reconstruction-era Congress understood, the legal tools of segregation are fundamentally corrupt; they "play the mischief with" all they touch. That these same tools may be used with the intent of achieving "equity" rather than exclusion is irrelevant. Racial quotas and notions of group rights perpetuate invidious racial classifications, and they rely on the false, racist notion that blacks and other racial minorities are somehow unable to compete on an even playing field.

Thankfully, Coke may be realizing its error. Coke has just removed Mr. Gayton from his position as the company's top lawyer after he'd spent only eight months there. And his replacement, Monica Howard Douglas, has reportedly announced to the company's lawyers that the policy has been paused, though she apparently said that at least some of its provisions would be salvaged.

This pause is refreshing, but more is needed. Racial discrimination should have no place in private contracting, and Coca-Cola should act swiftly to publicly undo this destructive legacy of Mr. Gayton's tenure. If it does not, it's only a matter of time before Coke finds itself having to defend its illegal racial discrimination to a federal court.

Mr. Gray has served as White House counsel and U.S. ambassador to the European Union. Mr. Berry is a partner at Boyden Gray & Associates and has served as head of policy at the U.S. Department of Labor.

The views expressed in this article are the writers' own.

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