Racial discrimination remains a serious societal issue, but the legislation designed to combat it has been exposed as fundamentally unenforceable and unconstitutional. The Civil Rights Act of 1964 fails because it targets motives rather than actions—a distinction that renders it incapable of functioning as genuine law.
Laws must govern observable actions within specific circumstances. An illegal motivation, however, is an impossible concept: just as a person cannot be charged with an illegal idea or belief (protected under the First Amendment), motivations cannot be directly observed and must be inferred by judges or administrators. Empowering authorities to make such inferences inevitably leads to arbitrary treatment, the very antithesis of legal principle.
The civil rights community has long dismissed this critique, but recent developments have forced a reckoning. The federal government is now prosecuting organizations for violating the Civil Rights Act by discriminating against white individuals through affirmative action programs—a move that has deeply frustrated reformers who previously championed such initiatives.
In 2023, the Supreme Court dealt a significant blow to university affirmative action programs in states that had not already banned them. More recently, the Equal Employment Opportunity Commission has launched investigations into Nike’s efforts to increase racial diversity among its employees and leadership, alleging potential violations of civil rights laws by discriminating against white applicants.
The problem runs deeper than these cases. The Civil Rights Act purports to make discrimination illegal but operates as a rule about motives rather than actions. For instance: if an employer refuses to hire someone due to race, the action violates the law; but if the refusal stems from the belief that the person is unqualified for the job, it remains legal. This inconsistency renders the law itself unconstitutional.
Genuine laws must be clear and actionable. A viable alternative would require places of public accommodation to operate on a first-come, first-served basis—without regard to motivation. However, such rules are impractical for professions requiring specialized skills, where hospitals need doctors with expertise rather than first arrival.
Racism persists as a critical challenge, but the current approach of punishing motives in actions that remain legally permissible has crossed an unacceptable line.
Paul F. deLespinasse is Professor Emeritus of Political Science and Computer Science at Adrian College.
