Enforcement Issues

According to a recent article in the Wall Street Journal, the University of Colorado at Boulder acted for years in blatant violation of the Civil Right Act, hiring for positions explicitly limited to candidates of particular racial groups. President Trump recently fired a large number of federal officials, inspector generals, in violation of a law requiring advance notification to Congress. Harvard, after being told by the Supreme Court that biassing admissions in favor of blacks and against whites and Asians, as it had been doing for many years, was in violation of the 14^th Amendment, proceeded, judging by the next year’s admissions, to do it again.¹ In one particularly blatant case of civil forfeiture abuse a police officer seized 87 thousand dollars from a motorist with no evidence of any connection to any illegal activity. The money was returned a year later after the victim, with the assistance of the Institute for Justice, managed to get a lot of public attention focused on the case. There was never any suggestion that deliberate highway robbery under cover of law would be treated as a criminal offense.

All of these raise the same problem, nicely summarized in the quote attributed, probably falsely, to Andrew Jackson: “John Marshall has made his decision, now let him enforce it.”. The court can enjoin a defendant from doing something. Can it punish someone for having done something?

The legal answer is, of course, that it can. Criminal punishment is for having done something. So is tort liability. But the equivalent is harder in cases like these, for at least two different reasons.

The Problem of Remedies

Harvard’s apparently continuing its policy after losing the case raises the question of remedies. The Court could perhaps require Harvard to simply rank applicants by SAT scores and admit on that basis alone, but that would not be a very satisfactory solution. It could permit a class action suit on behalf of some subset of rejected applicants, ones who could plausibly claim that they would have been accepted if Harvard had not discriminated against them.

That particular case raises another possible remedy. The court ruled against Harvard not on the grounds that it was violating the Civil Rights Act, a possibility raised only in a footnote, but that it was violating the 14^th Amendment. The 14^th Amendment applies to Harvard only because it takes government money, making its discrimination count as state action. The court or perhaps, under the new administration, the federal government, could find that Harvard is no longer qualified to accept federal money, neither research grants nor student loans.

The issue of legal consequences of a change in interpretation of the law is relevant in contexts beyond university admission policies. Marlene Ames is currently suing the Ohio Department of Youth Services for employment discrimination.² She is a heterosexual woman who claims to have been passed over for promotion in favor of a less qualified gay woman. Her suit was initially blocked by a doctrine imposing higher standards of proof for discrimination against members of a majority. The case is now at the Supreme Court, which seems likely to rule against that doctrine.

One of my initial examples was the University of Colorado, which appears to have been doing, for years, things that an unsympathetic court could interpret as blatant violations of the Civil Rights Act. In that and many more potential cases, people took actions arguably illegal under current interpretations of the law. They acted in the belief either that the acts were legal or that the relevant laws were not going to be enforced.

The simplest response, as with the Harvard admissions case, is for a court to tell them to stop. But if Marlene Ames wins her case she has a claim for damages. So, in principle, does someone who applied to be hired at UC Boulder and was rejected because of his race, although it is harder in practice to support a claim of damages by a job applicant than by an employee. Should people be punished, in that context, for past actions?

A Different Problem of Remedies

The problem of remedies is raised in a very different context by European governments attempting to regulate activities online based outside of Europe. The EU could require Apple to equip its iPhones with USB-C ports and, if Apple had refused to do so, banned the phones for sale in the EU. What if it wants to force X to censor “misinformation” or Facebook to ban posts denying the holocaust? It can threaten to shut down any European offices that the firm has and that may be sufficient, but a firm that delivers its services online does not really need European offices. It can forbid European firms from buying advertising from the online firm — at the cost of giving European firms a competitive disadvantage in selling to European customers. To try to prevent Europeans from viewing a banned online firm it could forbid any European ISP from serving the firm, but Europeans could evade that by accessing the Internet via Starlink or by using a Virtual Private Network, the approach of people in China, I have been told, to evade its internet restrictions. It is hard to see any fully effective sanction short of severe restrictions on Internet usage.

The closest to a test case on this so far was the action of the Brazilian government against X for its refusal to block “misinformation,” which according to X amounted to wanting it to censor the political opponents of the current government. X eventually gave in.

I wrote about the issue twenty-nine years in “The World of Strong Privacy,” arguing that public key encryption made possible a world where governments had no control over the online world. It will be interesting to see, in future versions of such conflicts, how much of what I described has become real.

The Problem of Legal Uncertainty

A second problem in dealing with past violations of the law is that legal rules are not known with certainty. Prior to last year’s case Harvard could defend its admissions policy on the grounds that the previous Supreme Court decision on the issue, made twenty years before, left it free to discriminate in admissions as long as it wasn’t too obvious about it. Should it be punished for not predicting how the court would rule the next time the case came up? Seen from that standpoint the fact that losing the case involved no penalty, merely a requirement for the future, makes sense.

The same issue is central to the dispute over qualified immunity — how obvious does it have to be that something a law enforcement agent is doing is in violation of the constitution before he becomes liable for doing it? That argument can move almost imperceptibly into a policy of responding to each lost case by slightly changing the activity it was told not to do and continuing to do it until another case works its way through the courts. That is what it is charged, by Second Amendment enthusiasts, that states repeatedly do to get around the Supreme Court’s restriction on their power to regulate firearms.

Civil forfeiture gets us back to the problem of remedies. My gut reaction to highway robbery under color of law is that it is still highway robbery, that the police officer who did it should be in prison. But is it fair to hold him criminally liable for doing what his superiors told him he was entitled to do as part of his job?

One alternative would be to hold the police department civilly liable, obliged to not only return the seized money but pay damages for the violation of the victim’s rights, but that transfers the punishment from the people responsible to the taxpayers. Perhaps the least bad solution would be a damage payment coming out of the salary or retirement funds of the police officials most responsible for the policy.

The same issue arises in my response to the cases arising from a change in the interpretation of discrimination law. If I interpret the policies of the University of Colorado as representing a reasonable interpretation of the law, it seems appropriate, when the court’s interpretation of the law changes, to require the university to stop discriminating in employment but not to punish it for past discrimination. If I interpret it, as with my biases I am tempted to do, as “we know this is illegal but we can get away with it because the people in charge of enforcing the law are on our side,” it seems appropriate to punish the past action.

A more extreme example of the issue, involving a change in written law not merely its interpretation, is presented by the abolition of slavery. Should slave owners be compensated for the loss of their slaves, on the grounds that buying slaves was legal when they did it, or, at the other extreme, should the freed slaves have a damage claim against their prior owners, on the grounds that, however legal, keeping them in slavery was a violation of their natural rights?³

Note: I am discussing these issues in the context of modern discrimination law. As it happens I disagree with that law, believe that relations such as hiring, selling, renting should occur if and only if both parties consent, hence that restrictions on discrimination based on race, gender, or sexual preferences should apply only to government actors not to private parties. As it happens the cases I am discussing all involve government actors — the decision against Harvard was based on the 14th Amendment not the Civil Rights Act — but if a university that accepted no government money chose to vary its admissions standards with the race or gender of the applicants it should, in my view, be free to do so.

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1. Admissions in 2024 were 14% black, 37% Asian, for the previous year 18% black, 37% Asian. The court had found that the Asian percentage in the previous year reflected discrimination against Asian-American applicants. “In the last year that Harvard required testing, the range (10th percentile to 90th percentile) of SAT scores for enrolling students was … 680 to 800 for Math” (Harvard FAQ under “Do I need a minimum required SAT or ACT score?). About 1% of students with math SAT scores above 700 are black.

2. Ames vs Ohio Department of Youth Services.

3. Readers curious about my thoughts on that issue will find it in "Choosing Metarules for Legal Change", AEA Papers and Proceedings, Vol. 82 No 2, (May 1992).