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Many Americans may wonder how our nation's well-intended antidiscrimination laws can have been so twisted as to support males identifying as women gaining legal priority over actual women, and to justify promotion of racial and ethnic hierarchies, quotas and preferences, even renewed segregation, at the expense of whites and Asians. Have the antidiscrimination laws outlived their purpose? Should they be repealed?

As one who was clubbed and arrested by police while protesting segregated housing, and disciplined for protesting real (South African) apartheid in the 1960s, I don't think that would be right. Although post-Obama America is certainly not a "systematically racist society," there are still individual racists and would-be discriminators who have to be restrained and sanctioned. But the antidiscrimination laws must be properly interpreted to protect all from discrimination based on race, national origin and sex. There should be no groups entitled to more protection from antidiscrimination law than others receive, nor should differences in outcomes for some groups be evidence for discrimination without actual discriminatory intent.

But how did we get to where we are, and what can we do to prevent the law from again being interpreted to mean the opposite of what it says once popular attention moves on? The problem, I believe, is actually a similar problem to the one the U.S. Supreme Court addressed in its Loper Bright decision (overturning the Chevron doctrine): bureaucrats exercising too much of the powers constitutionally reserved to lawmakers and the court system. The Supreme Court in that case, and likely in others to follow, is curtailing the bureaucrats' practice of both making and enforcing law, themselves, where the Legislature and court system, respectively, should be responsible for these functions under the U.S. Constitution. The bureaucrats at the Equal Employment Opportunity Commission (EEOC), the Office for Civil Rights (OCR), the Office of Federal Contract Compliance Programs (OFCC), our State Department of Human Rights (DHR) and other states' analogous agencies are the source of the problems under our antidiscrimination laws. Let me explain.

First, a little history. The antidiscrimination statutes, in the 1960s, were passed when there was legitimate concern that political institutions, courts and juries were potentially compromised by recent segregation and other racist policies and couldn't be trusted as enforcers of the antidiscrimination laws. So a very different system was created, based on agencies like the EEOC, and its state counterparts, like Minnesota's DHR, as the investigators and forums for discrimination charges and enforcers of remedies. Although courts and juries were sometimes available after initial proceedings, in reality the agencies, in most cases, were the main vehicle for discrimination charges, and outcomes were only occasionally brought to the courts. This all may have been appropriate in the 1960s, but it no longer is in the 2020s, two generations after the demise of segregation and separate-but-equal policies.

Why should this procedural difference matter? Because for centuries in Britain and the U.S., juries and courts have provided a forum for effective determination of facts and application of the law, with common-sense checks on zealotry, bias and overreaching. Confronting your accuser, cross-examination of witnesses, discovery rules, judicial supervision of arguments and jury deliberations are engines of truth and demolishers of crazy ideas. Racial quotas, the new re-segregation movement through "affinity groups" and other such mechanisms, and making women the victims of laws intended to protect against sex discrimination would never have passed muster with juries or with judges in their normal role as managers of the courtroom and police of over-the-top arguments. Legal and factual determinations without juries by non-judicial administrative tribunals were a major reason American colonists resisted the 1765 Stamp Act, leading to our revolution, and why the right to a jury trial for most criminal charges and civil lawsuits was guaranteed by the Sixth and Seventh Amendments.

The EEOC and the state agencies, however, have no such checks. They can enforce crazy theories, subject only to very light review by judges who are admonished to "defer" to the agencies' "expertise." That is what got us to this bizarre state of antidiscrimination law. Currently, for example, the fact that there are sometimes proportionately more Black student disciplinary offenders than white in some schools is said by our Minnesota state DHR to be explainable only as discrimination, so that same department orders school districts to discipline the same percentages of Black and white offenders as they represent in the student enrollment, despite the difference in the rate of actual offenses. The same insanity affects criminal law prosecutions and many other areas, such as college admissions and hiring, where failure to produce the same ratio of students, graduates, engineers, etc., by racial group is falsely claimed to be the product of discrimination, with no other explanation permitted.

Because the problem in our antidiscrimination laws is structural and not just the result of mistaken interpretations, a change of that structure, I submit, is needed. I propose not that the antidiscrimination laws be repealed, but that they be reformed to abolish these agencies and provide the same system of enforcement as we enjoy for all criminal and most other alleged civil violations. Complaints are filed in court, and all parties have the benefit of the normal procedural safeguards applicable in court. These should include: (1) a clear burden of proof on the accuser, (2) motions for dismissal and summary judgment for claims and defenses that clearly fall short, (3) the ability to confront accusers, cross-examine witnesses, obtain discovery of documents and statements and conduct depositions, (4) jury trials, (5) rules of evidence and (6) judicial oversight of all these procedures. Juries should make the ultimate factual determinations, and courts should make the ultimate legal rulings without deference to fanciful agency interpretations. I guarantee, if these changes are made, that we will have fairer results for all, and no rogue antidiscrimination law decisions turning the law into an instrument in favor of discrimination.

Douglas P. Seaton, of Edina, is an attorney. He is president of the Upper Midwest Law Center but intends this article to represent his own views, not those of the UMLC.