USING RACIAL BIAS FOR PROFIT

OESTERHOUDT STRIKES

I saw a report yesterday on a local New York City newscast about a private nightclub that allegedly turned away several patrons "because they were black." Apparently, these patrons were all friends with a noted local author who is black, too. She was throwing a party and wanted all her friends to be there. According to the report, the doormen refused her friends entry at about 2 AM last Sunday. The report also mentioned that the club is a popular nightspot. Many people can't get in, even celebrities.

You know what's coming. Now the local author has hired a lawyer and she has filed a $1 billion class action racial discrimination lawsuit against the club. She says that the club's management engaged in racial bias against her and now she has a right to collect money damages. The report did not say which law she invoked in her complaint.

Racial discrimination is alive and well in all multicultural societies. It is not a uniquely American problem. Still, the United States is famous for its racism. Yes, we have a black President now. But this is no "post-racial society." Blacks die at a younger age than any other ethnic group in this country. They make significantly less money. They go to prison in far greater proportions. They consistently score lower on educational achievement tests. And this is no accident: There is a legacy of State-sponsored discrimination at work in America that continues to negatively impact blacks in all life pursuits.

In short, racism exists in America. It always has and it probably always will. It is a constant problem. It deserves condemnation when it appears.

But racism does not explain everything. In many cases, racism does not account for unjust results in social interactions between the races; not every white man is a bigot. I think the New York author's case represents a false racial cry. It is one thing to claim that racism exists in private businesses in the United States. It is one thing to take a principled stand against it. But it is quite another to use purported racial bias as an excuse to sue a business for $1 billion.

In short, financial motives obscure principled ones. Here, the author undoubtedly has a financial motive. If she truly cared about dignity and equality, why would she demand $1 billion to crusade for them? To an objective observer, this looks like a stab at personal paydirt, not a principled call for justice. After all, a crusader for justice wants justice, not a billion dollars.

In theory, awarding money damages for racial discrimination vindicates the Nation's interest in rooting out racism. It works by penalizing businesses for proven racial bias. If racism is unprofitable, so the theory goes, then businesses will not engage in it. But asking for $1 billion from a single nightclub is beyond the pale. It could never possibly pay that amount. If the Plaintiff got what she wanted in this case, the club would cease to exist several times over. And who would benefit from this? A few aggrieved clubgoers who could not drink and dance where they wanted one night? By demanding so much, this Plaintiff loses her moral authority and comes across as a common profiteer.

I venture that it is utterly shameless to use racial discrimination as a pretext for immense personal profit. I find it disgusting when people use this country's bad racial history to extort astronomical sums for personal gain. This author should be ashamed of herself. Even if the club discriminated against her and her friends, she would have done better to ask for a much more modest sum than $1 billion. She could have asked that any damages be paid to an educational fund or something, not her own bank account. If she really cared about racial bias, she would have used the case not so much to enrich herself than to publicly investigate the club's practices. Perhaps that is what she wanted to do along. Yet asking for $1 billion just makes her look like a cheap hustler out for cash, not a principled warrior out for justice.

I am not surprised that the author's lawyer so willingly went along with this circus act. After all, he stands to gain publicity and a hefty fee for his toils. It does not matter whether this is all just a crude attempt to shake a club down by conjuring the ghosts of America's racist past. It does not even matter whether the law supports his position. He has personal motives, just like the Plaintiff. This has nothing to do with remedying continuing racial ills in America. This is about money and fame, pure and simple.

He would be wise to mind the law in this case, too. After all, the Constitution forbids racial discrimination only when the State engages in it. See U.S. Const. Amd. XIV sec. 1 When private businesses discriminate, it is much more difficult to prevail. Federal and State laws prohibit racial discrimination in "places of public accommodation." But those laws require the Plaintiff to prove "discriminatory intent" against the private actor. That is no easy task. It is one thing for a person to think that a private club racially discriminated against him or her. It is quite another to show that a private club had an intentional policy disfavoring blacks. After all, this was a popular club. It turned many people away, including celebrities. It could conjure up virtually any explanation for its decisions. It will never admit "actual racial animus" against blacks.

From a legal standpoint, this is what it takes to win cases like this. It won't happen.

Instead, the author will scream and whine and talk to tabloid newspapers. She will attract attention to herself and boost her book sales. Some will say she suffered racism. Others will say she is exaggerating. Still others will simply ignore her.

No matter the reaction, one thing remains: She is trying to exploit America's sad racial history for crass personal profit. That is downright contemptible.