The U.S. Department of Justice has joined a lawsuit alleging race and sex discrimination against the Missouri State High School Activities Association (“MSHAA”), and rightfully so, because if reports are correct, the MSHAA’s rules are indeed discriminatory.
According to reporting from the Missouri Independent, MSHSAA’s rules require two of the 10 members to be “candidates representing the underrepresented gender of the current board or an under-represented ethnicity.”
Supporters view the rule as a tool to promote fairness and inclusion.
It isn’t. The problem comes when a position becomes vacant. If eight of the remaining nine board members are all men or all white, for example, the rule would indicate that the candidate must be a woman or an underrepresented minority. This effectively bars candidates based on sex or ethnicity.
The Constitution protects individuals, not categories. However well intended, policies that distribute opportunity based on identity rather than merit raise immediate equal protection concerns. It demeans people to reduce them to nothing more than an identity marker, and it undermines government efficiency to exclude large numbers of candidates for a position because of their race or sex.
We’ve seen this dynamic play out in other contexts. In Arkansas, for example, a prospective member of a state licensing board was effectively barred from consideration because state law required the board to meet racial composition targets. He sued, and the Arkansas Legislature repealed the law. Lawmakers made clear what should have been obvious from the start: public appointments ought to be based on “experience and expertise, not the color of their skin.”
What remains to be determined is whether the MSHSAA is a public institution. It is organized as a private non-profit, but its employees are eligible for the Missouri state employees’ retirement system.
At its core, the matter can be reduced to whether institutions should discriminate based on sex or ethnicity. Given the MSHSAA’s broad mandate, it should not.
