Parent book: The Origins of Woke · Domain: Politics
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Contents
Cover
Title Page
Introduction
Chapter 1: How to Understand Wokeness
What Is Wokeness?
The Myth of the Marketplace of Ideas
Important Phenomena Can Have Trivial Causes
Politics and Culture Are Not Separate
Overview
Chapter 2: Lies, Damned Lies, and Civil Rights Law
Affirmative Action for Contractors
Disparate Impact: Everything Is Illegal
Harassment Law
Title IX: Sports and Sexuality
The Skeleton Key of the Left
Chapter 3: The Standardization of the American Workplace and University
Civil Rights Law Is Vague
A Self-Financing System
The “Best Practices” Doctrine
Bureaucratic Bloat and Institutional Homogenization
Division of Labor
Chapter 4: Government as the Creator of New Races and Genders
Inventing American Races
The Rise of Hispanics, Latinos, Asians, and Pacific Islanders
The Two-Front War on Tradition and Sexuality
Official Minorities as a Source of Expanding Government Power
Chapter 5: Social Engineering as a Cause of Stagnation, Ennui, and Social
Strife
The War on Merit
Cultural Diversity and the Rise of the Miserable Workplace
The End of Creative Destruction in Personnel Management and
Institution-Building
Civil Rights Law Is Why We Hate Each Other
The Right That Ate All Others
Chapter 6: Republicans and Civil Rights Law
The New Right and the Establishment Can Unite on Civil Rights Law
Three Eras
The Time for Action
Chapter 7: What Is to Be Done?
Political Salience
Start with the Low-Hanging Fruit
Going on the Offensive
Getting Water from the Ocean
Conclusion: Unleashing American Freedom and Creativity
Is Wokeness Inevitable, or a Paper Tiger?
Imagining a Non-Woke America, and World
Acknowledgments
Notes
Index
About the Author
Copyright
About the Publisher
Introduction
This book is the product of more than a decade of research and thought
about American politics and culture. It was only in the mid-2010s that the
subject of “wokeness” came to dominate political discourse. The
phenomenon seemed to start on college campuses. Within a few years, it
had migrated to other institutions. Those who critique what has happened to
our institutions tend to think more of style than substance, pointing to
instances of crying college girls demanding safe spaces, angry students
yelling at their professors over “microaggressions,” and public debates
litigating the definition of “woman.” From this perspective, when wokeness
seeps into policy, it is usually in the context of debates about standardized
tests and crime prevention, but it is common to see a self-identified liberal
who has an aversion to the aesthetic components of wokeness while
accepting most of its policy agenda.
Having followed these issues for years, I saw what was happening
differently. To me there was always something off about the mainstream
liberal worldview when it came to issues of race and sex, and the role of
government in preventing discrimination on certain “protected” grounds.
Such goals, I thought, naturally resulted in misguided policies that were
destructive in terms of personal freedom, economic growth, and even the
mental health of much of the public. I had gone to law school and spent a
summer interning at the Center for Individual Rights, a public interest firm
that fought against overreaches in civil rights law. When I saw the rise of
what most educated people call wokeness, it seemed to be only the long
overdue cultural manifestation of assumptions and beliefs that have in many
instances been deeply embedded in American law for over half a century.
It is not that culture and aesthetics are unimportant. People can and do
legitimately debate moral standards, the purpose of art, and the nature of
justice. Wokeness as a cultural phenomenon has something to say about all
those things, as does the backlash to it. But what I found strange about the
anti-wokeness side of the debate was that its proponents seemed oblivious
to the extent to which the beliefs and practices they disliked were mandated
by law. No act of Congress or federal regulation technically requires one to
express the belief that differences in income between men and women are
due to sexism, but expressing the opposite view as a corporation can be
extremely costly, and not just because of any potential public relations
backlash. In the “marketplace of ideas,” the intellectual is free to be a
conservative, liberal, libertarian, or anything else. The corporate executive,
however, is only given one option. For so many public intellectuals and
politicians to be anti-woke but indifferent to civil rights law struck me as
similar to worrying about global warming but not bothering to know
anything about energy policy.
Of course, something changed in the mid-2010s. But when it comes to
how major institutions in the country operate, the changes have mostly been
superficial, at least relative to the magnitude of those that occurred decades
before. Since at least the 1970s, major corporations have been forced to be
highly conscious of race and sex and on the lookout for practices and
behaviors that may have a “disparate impact,” which the law has considered
a sign of discrimination. Since the 1980s, firms have been all but required to
police the speech of their employees to prevent them from saying things
that might offend women and non-whites, and since 1991 the most litigious
among those workers have been able to receive punitive damages in
lawsuits, whether or not they suffered career consequences. Opponents of
wokeness sometimes say that “facts don’t care about your feelings.” But the
federal judiciary does.
As the anti-woke have observed and noted, corporations today are
increasingly likely to make public statements about hot-button issues and
pledge support to left-wing academic ideas. Many firms hold trainings
about “privilege” that strike most reasonable people as absurd. But when it
comes to substantive practices regarding how they run their businesses and
manage employees, there is more continuity than change. It is not difficult
to understand why the current discourse would miss all of this. The
conceptual similarities between principles of civil rights law and wokeness
are easy enough to explain, but the burdens that the law imposes on
employers and workers tend to have indirect and complicated effects on
how institutions operate and on the larger culture.
My thoughts about the relationship between wokeness and the legal
system were spelled out in a June 2021 article called “Woke Institutions Is
Just Civil Rights Law.” I was surprised to learn just how interesting the
revelations in the piece were to conservatives, and to anti-wokes more
generally. Those who had never been to law school did not know much
about government regulations. At the same time, those with a legal
background often had a superficial understanding of the issues involved but
had not read or thought too deeply about how the law has shaped the wider
culture. On more than one occasion, I have been talking to a highly
intelligent conservative activist who was shocked when I told him that there
is an executive order mandating that all large government contractors adopt
affirmative action programs. The corollary is that an executive order could
—at least in theory—also end such programs. Why hasn’t any Republican
president even felt pressure from his base to undertake such an action, much
less actually do it? Well, as it turns out, Ronald Reagan wanted to, and the
story of how he was stopped, as told in chapter 6, offers interesting lessons
for today’s politics.
This book is of more than historical interest. As Friedrich von Hayek
wrote in his preface to The Road to Serfdom, “When a professional student
of social affairs writes a political book, his first duty is plainly to say so.
This is a political book.”1 My motivation stems from my opposition to
wokeness and my belief that there is a political path forward for those who
would like to do something about it. Explaining what this path is involves a
discussion of at least four things: the exact provisions in civil rights law that
have led to wokeness; how they have influenced institutional culture; the
mechanisms that can be used to change the law; and the political prospects
of doing so. This last point is extremely important and makes this book
unique in the extent to which it hopes to be a useful guide for activists,
journalists, policymakers, and others who dislike where the culture has
gone and want to do something about it.
Books arguing about public policy usually focus on the laws or
regulations their authors would like enacted, while ignoring political
realities. An underlying theme of this book, however, is that the
marketplace of ideas is somewhat overrated. While there is a vigorous and
seemingly evenly matched public debate between intellectuals on the pros
and cons of wokeness, in institutions the identity-obsessed left has all the
power. This is not because they have the most convincing arguments, but
because for half a century laws, institutions, and structures have helped
enforce their ideas about social justice. It would be an act of negligence for
me to recommend that laws be changed to take away that power without a
discussion about the best ways of doing so. Broad social and political
developments—increasing polarization, Republican success in appointing
federal judges, popular anger against wokeness as a cultural phenomenon,
and the rise of right-wing media—put opponents of wokeness in a better
position to effect change than they have been in decades past. A major
ambition of this book is to help them realize that.
Of course, wokeness has taken on its own momentum largely
independent of law. Those who are concerned should continue to create art
and form private institutions, including media companies, to push back
against the phenomenon. But politicians, bureaucrats, and lawyers also have
a major, perhaps preeminent, role to play and should pull the levers
available to them. If they do, they might be surprised by the extent of their
own power. This book provides the road map to legal reform, seeing it as a
necessary, even if not fully sufficient, step to ultimately remaking the
culture.
Chapter 1
How to Understand Wokeness
At its core, what is American politics about? In some democracies, voters are clearly divided
along lines of region, ethnicity, religion, or class. Although such divides clearly exist to a certain
extent in the United States, the white majority is relatively split between the two major parties,
and economic circumstances are a weak predictor of political attitudes. If there is one lesson that
political scientists have learned over the last several decades, it is that American voting behavior
is driven by cultural and moral values rather than material interests. If you want to know how the
average American voted in the last election, you’re better off asking about her attitudes toward
political correctness and declaring gender pronouns than about last year’s income.
While Americans debate taxes and foreign policy, culture and identity issues appear to be what
is truly motivating many of the nation’s most prominent activists, media figures, and political
leaders on both sides, along with the mass of their voters. In 2016, Republicans selected Donald
Trump as their presidential nominee—despite his rejection of much of what had traditionally been
the conservative agenda—because he pushed the right cultural buttons. The motto of the 2021
Conservative Political Action Conference (CPAC) was “America Uncanceled.” On the other side
of the political spectrum, liberal institutions have come to speak with one voice on issues of race,
gender, and sexual orientation as they suppress those who dissent from the dominant worldview. A
conservative speaker may be shouted down on a college campus today, but it is never for his
views on the marginal tax rate or the withdrawal from Afghanistan.
While politicians and media figures on the right complain about the “cancellation” of Dr.
Seuss, the use of phrases like “birthing mother,” a general decline in masculinity, and the book
White Fragility becoming a staple of corporate training programs, they have rarely presented
realistic solutions to fix what is bothering them. In early 2021, the writer Ramesh Ponnuru said
that when he asked Tom Cotton what he as a senator would do about the cultural trends he and
other conservatives complain about, “he didn’t have much of an answer.”1 Nonetheless, as
Ponnuru pointed out, Republican voters want to hear their concerns over what has been called
“wokeness” reflected in the words of their leaders. There appears to be little hope that those
leaders can actually stem or reverse cultural trends.
Conservative politicians and activists are not alone in being unable to see the connections
between culture and law. Whichever side they’re on, most knowledgeable observers consider the
radical cultural shift of the last few decades to be something that has occurred independently of
who actually wins elections or sits atop the government. Following Lyndon Johnson’s landslide
victory in the wake of the Kennedy assassination, between 1968 and 2016—a span of two
generations—Republicans won eight of thirteen presidential elections. Even when Democrats did
come into office, it tended to be with relatively conservative candidates. Jimmy Carter’s most
lasting domestic influence was arguably the deregulation of industry, while Bill Clinton signed
welfare reform, famously triangulated on social issues, and declared that “the era of big
government is over.” Yet on issues related to race, gender, and sexual orientation, the country has
consistently moved left, toward institutions emphasizing classification based on identity, a results-
based approach to seeking out equality between groups, and the stamping out of dissent from
liberal orthodoxy.
In 1975, former Nixon aide and future presidential candidate Pat Buchanan published a book
called Conservative Votes, Liberal Victories. Nearly half a century later, the title no less accurately
summarizes the past several decades. Electoral victories have not made conservative activists and
intellectuals happy or satisfied. Particularly in recent years, their rhetoric has trended toward the
apocalyptic. In the run-up to 2016 Michael Anton wrote an essay called “The Flight 93 Election”
for the Claremont Review of Books. He argued that, like the doomed passengers on that plane,
conservatives had no choice but to rush the cockpit and hope they survive; a Hillary Clinton
presidency was certain death. Trump won the election, yet social liberalism continued its march to
the top of nearly all major institutions, even ones that we used to think of as apolitical and
unlikely to ever be co-opted by one side of the culture war. Is one to conclude that, if one’s
concerns are primarily cultural, politics doesn’t matter?
Conservatives are not alone in being angry and befuddled by what is going on. Nonpartisan
moderate or liberal organizations such as the Foundation for Individual Rights and Expression
(FIRE) aim to protect free speech on college campuses. Joe Rogan, one of the most popular
podcasters in the country, has supported Bernie Sanders and considers himself to be on the left but
is widely disliked by the liberal establishment for his positions on identity-related issues. The
media talks about the libertarian leanings of Silicon Valley, and while this is to a large extent
exaggerated, the tech industry has produced a disproportionately large number of anti-woke
public figures, including Marc Andreessen, Elon Musk, and Peter Thiel. Clearly there is overlap
between the concerns of the conservative movement and those outside of it. The behemoth they
mutually oppose looks like a house of sand when one considers its intellectual merits but seems
unbeatable. It appears to have no center but constantly self-radicalizes, seizing new territory with
barely any resistance.
How should we understand wokeness, this force that has come to dominate our politics and
culture? Is it really worth worrying about, or is the entire debate nothing but a distraction from
larger issues facing humanity? Where did wokeness come from, and how can we get rid of it? The
main arguments of this book are radical, but founded on facts that are largely beyond dispute.
These facts have been missed, in part, because of education polarization: Republicans have
become the less educated party, making them less likely to make direct connections between their
cultural concerns and government policy, even when the two are related.
Most Americans subscribe to the idea that their government treats them as individuals. In this
view, while the state sometimes interferes in private affairs in order to address cases of explicit
discrimination, it mostly subscribes to color-blind ideals. To conservatives, the focus on
individualism is a source of pride in the American system. Liberals sometimes argue for more
race-consciousness in making policy, as if they are advocating a novel approach to solving
inequality. With few exceptions, there has been a general inability or unwillingness to accept the
fact that what we call wokeness has been facilitated and encouraged by concrete actions
undertaken by the federal government. Not only that, but race- and sex-consciousness are
embedded in almost everything that Washington does, and it forces the rest of the country to
behave similarly through how it regulates businesses, state and local governments, universities,
and other institutions.
The idea that wokeness has something to do with law has lately been associated most
prominently with the conservative writer Christopher Caldwell. In The Age of Entitlement (2020),
he argued that the only way to undo the damaging cultural developments that have emerged in
recent decades would be through repealing the Civil Rights Act of 1964.2 Yet, as will be shown in
later chapters, not legislation but mostly the innovations in civil rights law that came out of the
federal bureaucracy and the courts have brought us to this point.
What Is Wokeness?
For the purposes of this book, we can say that wokeness has three central pillars.
- The belief that disparities equal discrimination: Practically any disparity that appears to favor men over
women, or whites over non-whites, is caused by some combination of past and present discrimination.
Disparities that favor women over men or non-whites over whites are either ignored or celebrated. This
includes not only material outcomes like differences in income or representation in high-status professions
but “disparities in thought,” or stereotypes about different groups.- Speech restrictions: In the interest of overcoming such problematic disparities, speech needs to be restricted,
particularly speech that suggests that they are caused by factors other than discrimination or that stereotypes
are true.- Human resources (HR) bureaucracy: In the interest of overcoming disparities and regulating speech, a full-
time bureaucracy is needed to enforce correct thought and action.
The first and second components are key to whether an individual or idea is woke. If a person
believes that discrimination is the primary cause of disparities but not that there should be speech
restrictions to enforce that idea, we generally just call them a liberal instead of woke. We likewise
do not use the term to describe someone who favors speech restrictions but only in the form of
banning blasphemy and pornography—they are a religious fundamentalist. The third part involves
how wokeness is enforced at an institutional level. It therefore does not refer to any particular
person’s belief or the content of an ideology, but in practical terms the woke do usually support
bureaucracies as necessary to enforce their views.
These three pillars are the core of wokeness and sufficient for the purposes of this book,
although much more can obviously be said. For example, the ideology has a standard way to
divide people based on race, hence unnatural categories like “Asian American Pacific Islander”
and “Hispanic.” Often, in the interest of overcoming disparities, wokeness attacks the
measurement or standard it holds responsible—hence the war on standardized tests, or even the
broader concept of merit. Moreover, the crusade to overcome gender stereotypes has morphed into
a questioning of the biological reality of sex, although this principle sits uneasily beside the
requirement that the stated identity of a trans-identifying individual is to be taken as an objective
fact. Though sexual orientation and gender identity have become increasingly important to
wokeness, it is still an open question how long-lasting these debates will be. Controversies over
wokeness as related to race and gender issues can be traced to the “PC wars” of the 1980s and
1990s and, before that, to the Nixonian backlash to the turmoil of the 1960s in the aftermath of
Johnson’s Great Society programs. Meanwhile, LGBT issues are relatively new, and although
they are increasingly important to contemporary wokeness, I will mostly set them aside to focus
on the core of what has been a long-standing debate in American society.
Each of the three pillars above can be traced to specific government policies. While Congress
banned “discrimination” based on certain protected categories in the Civil Rights Act of 1964, it
never defined the term. That was done later, mostly through executive actions, the unelected
bureaucracy, and the courts. Together, these actors decided that discrimination did not have to be
explicit, or even conscious, and that it was a sin committed not against individuals but against
“classes” of people entitled to pursue class action remedies. It consisted of practices having a
disparate impact on a protected group, potentially creating legal liability regardless of intent. And
affirmative action was not only not banned by the CRA but for all practical purposes required by
it. The doctrine of the “hostile work environment” made comments that were rude,
condescending, or mean a matter not only of hurt feelings but of potential tort or regulatory
liability if they had racial or sexual connotations.
Title IX, which as a matter of statutory text simply banned discrimination in government-
funded educational institutions and programs, has been used to micromanage the sex lives of
college students. The Civil Rights Act of 1991, which allowed punitive damages for certain
lawsuits, created financial incentives for individuals to develop extremely thin skins when it came
to sensitive issues. And because all of this has been inherently ambiguous about exactly what is or
isn’t allowed, we have seen the rise of the human resources profession, along with its more recent
offshoot, the diversity, equity, and inclusion (DEI) industry, in order to track and enforce the rules.
Government got into the business of social engineering, while outsourcing much of the
enforcement of its mandates and regulations to the private sector.
While the 1964 Civil Rights Act itself was a popular bill passed by Congress and signed by
the president, therefore giving it democratic legitimacy, later innovations mostly came from
decisions made by and negotiations between the courts, big business, and the federal bureaucracy.
Most of the time, these innovations ignored, or even contradicted, the plain text of the 1964 law
and the original intent of those who wrote and voted for it. With a few exceptions, like the Civil
Rights Act of 1991, a bureaucratic and legal elite made most of the major decisions regarding
what discrimination actually meant, whether the state should be in the business of regulating
dating and humor in the workplace, and whether and how major institutions classify people
according to ancestry. All the while, the general public was at most dimly aware of what was
happening. To borrow an old economic metaphor, the state has been the “invisible hand” molding
and shaping institutions toward the collection of values that we now identify with the far left.
While many liberals have expressed concern over cultural trends and neither side of the
political spectrum is monolithic, political realities ensure that if any politicians adopt the
suggestions put forth in this book in the coming years, they will be Republicans. I take into
account political realities not only by explaining how exactly the trends documented in this book
can be reversed, but why doing so is probably easier than most observers would think. Just as it
took generations to go from a world of the Civil Rights Act, with its promise of color-blindness, to
one in which social engineering and discrimination against whites and men is almost universally
accepted in major institutions, undoing the cultural damage of the past few decades will take a
very long time. Nonetheless, the legal and policy changes that need to be enacted can begin today,
and in most cases do not even require new legislation.
The Myth of the Marketplace of Ideas
Cycles of outrage over institutional wokeness have a certain rhythm. Conservatives and centrists
might notice, for example, that Google has a training program based on critical race theory, or that
a Harvard anthropology professor is facing an absurd sexual harassment allegation.3 Stories like
this, along with countless others, are treated as signs of the triumph of certain ideas. Few will
point out that Google is a government contractor, and that contractors are regularly required by
the Department of Labor to institute new race and gender training programs.4 Harvard is similarly
under the thumb of federal bureaucrats; in 2014, it reached a settlement with the Department of
Education that expanded its Title IX bureaucracy and mandated the lowest possible standard for
establishing sexual harassment and assault.5 While the federal regulation of universities, unlike
the regulation of contractors, has been extensively covered in the media, there is usually enough
of a time delay between when new requirements are instituted and when their results are felt that
few make the connection between them. When every employer in the country has to pay a Social
Security tax, we understand that they all take the same steps because the federal government
requires them to. Yet when major institutions throughout the country all start taking the exact
same positions on matters of race and sex, there is a tendency to treat each one of them as making
an independent decision. Civil rights law is not as precise as Social Security requirements, but its
rules are no less binding.
In many cases, their lack of precision can make them more consequential by creating
uncertainty and a chilling effect on speech and conduct throughout American life.
Intellectuals tend to put a great deal of faith in the importance of ideas. If something has gone
wrong, it is often said to be because society decided to listen to Philosopher A instead of
Philosopher B. It is therefore unsurprising that opponents of wokeness will often trace its rise to
individuals like Karl Marx, Michel Foucault, Herbert Marcuse, or—in the case of the really
intellectually ambitious—Martin Luther. If only the United States had rejected the ideas of a few
European intellectuals instead of letting them “march through the institutions,” or all of
Christendom was still under the jurisdiction of the pope, none of this would have happened.
Similarly, those who call themselves classical liberals, often from within academy, talk about
society moving away from the principles of tolerance and free speech as if it is simply a matter of
individuals exchanging one philosophy for another.
For example, in The Diversity Myth, originally published in 1995, David Sacks and Peter
Thiel saw the switch from the classics to so-called multicultural education at Stanford as a
microcosm of what was happening to higher education and the rest of society. More recently
Helen Pluckrose and James Lindsay argue that social justice ideology can be traced to postmodern
philosophy, which at first “developed in relatively obscure corners of academia” and now “has
spread to other parts of the academy, into activism, throughout bureaucracies, and to the heart of
primary, secondary, and post-secondary education.”6 They contend that postmodernism “co-opted
the notion of social justice from the civil rights movements and other liberal and progressive
theories,” and that this began “just as legal equality had largely been achieved.” When discussing
the negative societal effects of the Frankfurt School, Pluckrose and Lindsay echo socially
conservative thinkers like Pat Buchanan and Michael Lind, who conceptualize their opponents as
“cultural Marxists.” Professor Paul Gottfried finds roots that are even deeper, arguing that political
correctness is a kind of “secular theocracy” and emphasizing the “fit between the current state of
Protestant Germanic religious consciousness and the politics of guilt.”7
A historical perspective, however, provides many reasons to doubt theories that blame any
particular philosophy or religion for what has happened. Wokeness resembles civil rights law
more than it does Protestantism or the writings of any postmodern philosopher, and we can look at
the historical and legal record to understand the motivations of those who made that law.
Pluckrose and Lindsay are mistaken when they say that legal equality was achieved in the 1960s.
Within just a few years after the passing of the Civil Rights Act, the government was mandating
that employers divide people by race and sex, giving preference to supposedly disadvantaged
groups, and even drawing congressional districts in ways that legitimized tribalism, under the
assumption that the right to vote wasn’t enough, and that American citizens of certain
backgrounds could only be adequately represented by members of their own race.8 A particular
problem for the idea that wokeness came from the university is the fact that identity politics had to
originally be forced upon much of higher education by Washington, with the Department of
Health, Education, and Welfare originally coercing schools like Columbia and UC Berkeley to
adopt quota-based faculty hiring during the early 1970s.9 The government mandates came first,
and the ideology later.
This shouldn’t be too surprising. We understand the primacy of politics over ideology when
we read about the histories of other countries. After a communist regime takes power and we see a
rise in pro-communist rhetoric coming from the government and the rest of society, we accept that
what has happened is that most people are apolitical most of the time and will express support for
the values and ideas least likely to get them into trouble. It is not that one side has triumphed in
the marketplace of ideas.
To understand why Russia was communist in 1960, it is more useful to study 1917 and the
years immediately after than it is to look at the doctrines of the Russian Orthodox Church and the
culture of eighteenth-century peasants. Of course, a new regime will inspire true believers in the
dominant ideology throughout the system. At the same time, we understand that removing the
influence of harmful ideas is primarily a political project, one that depends on a small group of
individuals changing the nature of the regime they live under. It is not a matter of winning a
debate within the larger society and hoping that more people start to act differently based on new
convictions and without their incentives to do so having been changed.
Long before wokeness was a cultural phenomenon, it was law. Just because the post–civil
rights regime in the US has been less overtly authoritarian than other official state ideologies does
not mean it has not been effective in reshaping society. The secret to its success is in its hidden,
indirect nature. Rather than having a government that loudly and boldly proclaims a certain set of
beliefs and then goes and locks up dissenters, civil rights law involves constantly nudging
institutions in the direction of being obsessed with identity and suppressing speech, all while it
speaks in the language of freedom and nondiscrimination. Enforcement is not carried out by the
state itself, but mostly outsourced to trial lawyers and the human resources industry, at the
expense of private institutions, which end up absorbing much of the cost of and backlash to
political correctness. The fact that there is occasion to write this book—that American
conservatives and moderates can at the same time be obsessed with wokeness and have so little
understanding of where it comes from—is a testament to the success of civil rights law in
remaking society while being able to obscure what it has been doing.
Arguably, it would have been difficult to design a more effective system of social engineering,
one aiming to change matters as fundamental as how men and women date and appropriate
standards of interracial communication, at least in a democracy. It is tempting to believe that it
was actually designed in the sense that there was a small group of individuals who created the
laws that we now live under, all the while foreseeing their downstream effects on society. This
would be a mistake. In tracing the development of civil rights law over time, we can see that it
was not created by philosophically inclined liberals who were reading Marcuse and Gramsci. The
historical record is clear on this point. The members of Congress who voted for the Civil Rights
Act believed that they were dismantling a caste system in the South that was sustained by
intentional and conscious private and state-backed discrimination. They did not see the bill as a
way to remake American society, redistribute wealth, or destroy capitalism.
From there, politicians and government bureaucrats in institutions like the Equal Employment
Opportunity Commission (EEOC) and the Department of Labor, usually under pressure to
produce tangible results, undertook a long-term project to get around the plain text of the law and
ultimately try to achieve equality of outcome, first for blacks and later for other minorities and
women.10 Sometimes their motivations were extremely idiosyncratic, as when President Nixon
tried to sell congressional Republicans on racial quotas in order to create friction within the
Democratic coalition between the civil rights lobby and organized labor.11 Other times they were
engaged in more normal political behavior, which meant seeking votes or responding to pressure
from well-organized interest groups.
At each point in the process, actors were constrained by political, legal, and bureaucratic
factors. This forced even the most zealous advocates to compromise, sometimes in ways that
appeared to weaken civil rights law but ultimately made it a more effective tool of social
engineering. For example, many liberals within the federal bureaucracy wanted to impose racial
quotas on industry, which contradicted the plain text and original intent of the Civil Rights Act.
They instead had to settle for standards like disparate impact, which said that any hiring practice
that had a disproportionately negative effect on minorities or women was presumptively illegal.
While this interpretation of the law was no more legally defensible, the Supreme Court
ultimately signed off on it. Rather than employers being allowed simply to fill a quota and
otherwise forget about race and sex, they had to navigate a world in which almost everything that
they said or did could potentially get them into trouble. This made the more centrist approach to
civil rights law seemingly less heavy-handed but culturally more important, as employers had to
rethink every aspect of their relationship with their employees and the wider public. The irony is
that if the left had achieved more of a total victory in the 1960s and 1970s and had been able to
mandate racial quotas, there may have been less of a need to remake the American workplace.
The development of laws surrounding workplace speech can be understood in a similar way.
One could imagine a government regulation that simply banned employees from dating coworkers
or made it against the law to say certain words. Such a course would have been politically difficult
and likely struck down as unconstitutional. Instead, the law says that such conduct can violate
civil rights law and be considered harassment if it is “severe and pervasive.” Nothing is explicitly
allowed, or prohibited. Employers have little choice but to be extremely cautious, while creating
bureaucracies and processes that signal to judges and regulators that they take the issue of
workplace harassment seriously.
Perhaps the clearest example of an intellectual concept being used as a post-hoc justification
for a political compromise that was historically contingent can be seen in the rise of the idea of
“diversity.” Throughout most of the 1960s and 1970s, Americans debated whether there should be
racial preferences for black Americans. Conservatives argued that the law should be color-blind,
while liberals wanted racial balancing in order to undo the effects of past discrimination. In
University of California v. Bakke (1978), the Supreme Court was bitterly divided on the issue.
Four justices would have allowed the quota system at the Medical School of the University of
California at Davis to stand, while four others would have simply struck it down. The case thus
ultimately came down to the opinion of Justice Lewis F. Powell Jr., who held that while quotas
were illegal, the Fourteenth Amendment did allow government institutions to consider race in the
interest of seeking a diverse student body.
Because it ultimately decided the case, Powell’s opinion was the most influential on the Court,
but it was also the least coherent. The four liberal justices pointed out that a system that gives
bonus points based on race operates in pretty much the same way as a quota system, the only real
difference being that the former is less honest and therefore more politically palatable. The Powell
view—that it was acceptable to consider race as one factor in order to achieve diversity, but
quotas were illegal—was confirmed by majorities in the Gratz v. Bollinger and Grutter v.
Bollinger cases twenty-five years later. Once again, there was more intellectual honesty on both
the right and the left than there was in the center. Chief Justice William Rehnquist, in a dissent
signed on to by other conservatives in Grutter, provided data proving that the University of
Michigan was engaging in racial balancing. Justice Ruth Bader Ginsburg, in her dissent in Gratz,
wrote of the strangeness of banning quotas but being able to reach the same ends “through winks,
nods, and disguises.”
Despite the ad hoc nature of the diversity rationale and the logical incoherence of the position
that considering race is acceptable but quotas are not, we can see how Justice Powell’s opinion in
Bakke became official ideology throughout American elite institutions. Peter Wood, in Diversity:
The Invention of a Concept, searches major newspapers and court decisions before Bakke and
finds almost no mention of the benefits of diversity in higher education.12 The University of
California did not even put much emphasis on diversity in the arguments it presented to the
Supreme Court, and the idea was barely mentioned in the original opinion of the California
Supreme Court.
In the years after the decision, all this changes. The number of newspaper articles mentioning
diversity in higher education goes from a trickle to a flood, as it becomes the standard justification
for affirmative action policies. We can see the invention of a concept in real time. While
“diversity” is certainly an idea, it is not one that can claim any kind of intellectual depth or
historical pedigree. It was basically the creation of one judge acting out of either political timidity
or intellectual laziness.
At its root, the original push for quotas was based on sympathy for the situation of African
Americans as they began to advocate for equal rights, white guilt over their plight, and a desire to
make things better. Before the Civil Rights Act, the entirety of the civil rights lobby was united in
consistently calling for racially neutral anti-discrimination laws.13 Soon, however, there was a
realization among elite institutions that, under a color-blind system of college admissions, there
might not be many more blacks in positions of power and authority than there were before the
Civil Rights Act.
Political norms and legal standards emerged in the context of years of violent inner-city riots,
and major American institutions saw racial preferences as a way to calm the residents of urban
centers that seemed to be slipping into anarchy. Perhaps the two best historians of the period in
question are in agreement on this point. In The Civil Rights Era: Origins and Development of
National Policy, 1960–1972, Hugh Davis Graham convincingly argues that—in contrast to the
pleasant-sounding conventional wisdom that violence usually hurts a cause—it was inner-city
riots that originally convinced policymakers in Washington to go beyond color-blindness and
adopt policies like affirmative action and minority set-asides in order to buy social peace.14 The
sociologist John Skrentny agrees, seeing affirmative action as a kind of “crisis management”
during a period of mass violence, and shows how moderate black leadership was pushed aside
through pressure from below in favor of a new generation of activists interested in using
intimidation to bend institutions.15 Some of Tom Wolfe’s works, particularly Mau-Mauing the
Flak Catchers, serve to dramatize parts of this dynamic.
Whether policies like affirmative action and minority set-asides are actually useful in
achieving social peace is beside the point; self-styled “community leaders” often do a good job of
convincing politicians and bureaucrats that they are. We saw something like this happen in the
aftermath of the death of George Floyd, where the more communities rioted, the more convinced
institutions became that they had to listen to activists who could claim to speak for them.
The historical record reveals that wokeness can be understood as a series of political
compromises. Some, like the Bakke decision, while intellectually incoherent, are sufficiently
successful in obscuring what is being done that the political salience of the relevant policy is
lowered. This means diversity initiatives but not quotas, and vague sexual harassment laws but not
direct prohibitions on speech or conduct, which would be more of an explicit repudiation of
traditional American freedoms. Instead of policies with clear justifications, guidance, and goals,
the law comes to act as a sort of ethical scold that is responsive to mass panics and evolving ideas
about nondiscrimination and equality that can be easily incorporated into the current system
without gaining approval through the democratic process.
Universities adopting quota systems that they justified as necessary to redress historical
wrongs done to blacks, for example, would at least have had a limited cultural effect, as
affirmative action has in other countries where it is practiced. In contrast, anchoring affirmative
action in the rationale of “diversity” required the creation of a new and largely incoherent official
ideology that has been used to justify crusades against “inequity” and constant management of the
thoughts and behaviors of students and faculty. Only after this process is complete and the initial
rationale is set—in this case by judicial fiat—do we see the intellectual justifications, as when
universities started citing supposed empirical evidence for the benefits of diversity in the years
after the Bakke decision.16
In addition to the historical record, there is another reason to doubt that wokeness is the
product of philosophical currents with deep roots in American history or Western culture. As
critics point out, many of the opinions educated people feel coerced to accept are not even
consistent, let alone representative of any particular philosophy. Whenever there is a lucrative
profession that attracts a disproportionate number of men, the only socially acceptable—in some
cases, the only legally permissible—view is that women are being discriminated against, if they
happen to find themselves in the field, or are somehow discouraged from entering the field in the
first place. Entire academic disciplines are built around the idea that differences between men and
women are based on social conditioning.17 What are we to make, then, of the sudden triumph of
the view that trans identity is an immutable characteristic, meaning that individuals born with XY
chromosomes can “know” that they are women, often by citing evidence like a desire to wear
dresses and play with dolls as a child? At the same time, when a biological female feels the urge
to do those exact same things, we look for social, rather than genetic, causes of said behavior.
Similarly, we can understand that sex was included in the Civil Rights Act as a protected
category for very strange and idiosyncratic reasons, placed in the bill through the machinations of
a southern segregationist in the hopes of killing it. Nonetheless, within a few years, feminist
activists were pushing for the executive branch to take the prohibition on sex discrimination as
seriously as it took discrimination against blacks. Now as then, feminist activists have tended to
be disproportionately career-focused, meaning they were the ones who determined the kind of
“womanhood” that the law would cultivate and protect. To some, blank-slate notions of gender
were appealing, as such ideas validated their own choices and inclinations. The fact that feminist
and LGBT dogma contradict each other is a problem for logicians and political philosophers but
not for the law or the psychology of true believers. Wokeness is rooted in neither a blank-slate
view of human nature nor genetic determinism. It can force individuals to adopt one perspective
on one issue and the opposite on another, as when a reporter for the Daily Caller asked members
of the Congressional Black Caucus why men tended to be arrested for crimes at higher rates than
women, and two of them cited biological realities and group differences in behavior.18
Gender ideology is only the most absurd and extreme example of the contradictions of
wokeness. It inspires a backlash because it reaches a point where the reigning ideology goes too
far even for “Havel’s greengrocer,” a stand-in for the average citizen who does what he is told so
as to be able to live a quiet life as long as he can maintain some dignity.19 Yet we find parallel
absurdities in how we think about and classify people according to race; bureaucratic processes
and decisions made mostly in the 1960s and 1970s determined which groups were protected and
which were not, and narrative and law have been built around those rules ever since. Why should
relatively well-off Cubans get government advantages and privileges over Cajuns? A Yemeni
immigrant is considered white by the federal government, yet a pure-blooded Spaniard can be a
“disadvantaged minority.” One might say that any classification system is going to have its flaws,
but the state must make choices in this area for the purpose of seeking social justice. Yet that
doesn’t explain the problems with the larger narrative that American society is built to advantage
whites, given that there are people of over a dozen non-European ethnic backgrounds that have a
higher annual income than the white population.20 Note that when whites do better than another
group, it is taken as prima facie evidence of injustice. Someone who picks up a book by a left-
wing thinker such as Ibram X. Kendi expecting even a nontrivial attempt to justify any of this is
bound to be disappointed.21
The ideas associated with wokeness did not win in a marketplace of ideas. In many cases, it
almost gives them too much credit to even consider them ideas in the first place. All of the
contradictions noted above can be explained by understanding wokeness as the name we give to a
collection of beliefs that one must hold for legal and psychosocial reasons, without any
mechanism to ensure logical consistency built into the system. We do not look for logical
consistency in an act of Congress that we know was the product of logrolling, compromise, and
debate between various factions. The creation of a cultural phenomenon is even more complicated
than a piece of federal legislation, and how it is lived and experienced is even less likely to have a
close relationship with any philosophical text.
Like an act of Congress, wokeness can similarly be seen as a “logrolled” set of cultural
beliefs. Individuals and organizations that claim to speak for some identity group complain and
make certain demands for explicit recognition and support. Political barriers prevent them from
getting all of what they want, but politicians, bureaucrats, and institutions find ways to pacify
them without inspiring too much of a backlash by making what is happening too clear or explicit.
This involves speech restrictions in the name of vague goals like “managing diversity” or
“protecting safety,” which lead to the creation of large bureaucracies within institutions with
open-ended and moralistic missions. Like a complex congressional bill that is the product of
negotiations, the end result is not what any individual would have wanted.
Important Phenomena Can Have Trivial Causes
This means that the whole project of seeking a grand philosophical explanation for wokeness
relies on a conceptual mistake, likely rooted in the need of intellectuals to exaggerate their
importance. One is today supposed to believe a list of things about race, gender, and sexual
orientation that are consistent with one another in some ways but not others. Although I defined
wokeness in terms of three pillars—disparities equal discrimination, speech controls, and HR
bureaucracy—these beliefs and practices should be seen less as a philosophical doctrine with its
own impeccable inner logic than as a political program that has emerged from a combination of
factors such as interest group lobbying, mass emotional sentiment, and bureaucrats seeking to
increase their power.
Understanding the role of the state can explain much of what is puzzling about wokeness as a
cultural phenomenon. When there were growing concerns about racism against Chinese
Americans in the midst of the Covid-19 pandemic, why did we speak about hatred against “Asian
Americans and Pacific Islanders,” given that there did not appear to be any attacks against
Samoans? Why do we worry about disparities in arrests and school achievement between
“Hispanics” and “whites” but not between Swedes and Italians or Puerto Ricans and Arabs? Why,
despite a war on terror that led to the victimization of Muslims both at home and abroad, do we
see so little organized political activity among Muslim Americans relative to politicians and
activists who identify with artificial categories like Hispanics and AAPI?
The wokeness-as-law perspective can help one understand all of this and much else.
The question of whether wokeness is understood more as a political or philosophical
phenomenon is of more than historical interest. How we answer it determines how one pushes
back. If it is a matter of philosophy and belief, then the answer is more books, articles, essays, and
scientific studies debunking the beliefs that form the basis of identity politics and political
correctness. In other words, keep employing the same strategy that opponents of earlier and more
contemporary forms of wokeness have used since at least the 1970s, when disillusioned former
liberals who came to be known as “neoconservatives” began to write about the failures of the
Great Society. Their work continues today on social media and in online publications such as
Quillette, which has one foot in academia and few connections to the American right. If, however,
this book is correct, and wokeness should be understood as a matter of government power, then
the political entrepreneur is more important than the essayist. That is, unless the latter can produce
work that serves as a catalyst for effective activism, as this book aspires to do.
In addition to its role in stroking the egos of intellectuals, the temptation to believe wokeness
has deep philosophical roots likely stems from the need to believe that if the consequences of a
phenomenon are serious, then its causes must be too. And critics of wokeness are indeed correct
that the phenomenon is everywhere, and has important implications for society. Institutions no
one had ever considered political before now speak with one voice in swearing fealty to woke
values. Prominent figures in areas as diverse as knitting, weightlifting, and video games have
faced major controversies related to issues of race and gender. David Rozado, Zach Goldberg, and
others have documented the “Great Awokening” in the media. Beginning around 2011, we see a
major increase in terms related to race, gender, sexual orientation, and left-wing ideas about the
causes of group differences like “systemic racism.”22 While it is difficult to know what changed
around that time, the start of the Great Awokening did coincide with Twitter taking off, which
suggests a plausible connection. In America, almost every major institution now proclaims a
belief in its duty to close disparities between certain groups. A sample of 999 university job
listings in 2021 found that 34 percent of those at elite schools required a “diversity statement,”
and 78 percent mentioned “diversity.”23 When the Supreme Court considered the issue of
affirmative action in higher education in 2015, it received amicus briefs signed by dozens of
Fortune 500 companies, with none taking the other side of the issue.24
Some of the cultural changes that people complain about can seem small and petty, as when
conservative media spent the early part of 2021 in a frenzy over the “degendering” of Mr. Potato
Head. Yet other developments are much more serious and have deep implications for American
politics and civic life. The entire concept of merit—whether measured through standardized tests
or other forms of academic achievement—is treated with suspicion, as schools close down gifted
programs and more universities drop SAT requirements, putting increasing emphasis on subjective
measures like extracurriculars that have even worse class and political biases than the practices
being eliminated.
In 2020, the University of California system, the largest in the country, decided to do away
with its standardized testing requirement for undergraduates, over the recommendations of its own
panel created to study the issue.25 The math curriculum of that state is similarly being remade to
take into account “equity” concerns. Between 1990 and 2020, the abstracts of successful National
Science Foundation grant applications with highly politicized terms having to do with identity
issues, like “gender” and “inclusion,” increased from 3 percent to 30 percent.26 While there are
often nonpoliticized uses of these kinds of terms, this cannot explain such a massive rise. In 2013,
half of NASA’s graduating class of astronauts was female, a fact that the New York Times
compared favorably to the record of China, where women astronauts remain rare.27 While there
may be some women able to meet the same standards as men, it strains credulity to believe that,
given the gender gap in math and science proficiency, a meritocratic system would produce a
perfect equality of outcomes.
At almost every level of society, then, from elementary schools to the most elite universities
and professions, the United States has seen a move away from merit and toward systems and
processes that seek to achieve representational parity between groups. Wokeness also increasingly
infects public health and safety. The public health profession was discredited among wide swaths
of the population when much of the community recommended lockdowns during the Covid-19
pandemic but made an exception for protests against racism. When safe and effective vaccines
later became available, the US became an outlier among developed states in the number of its
elderly citizens who did not want to take one.28 While it is difficult to make a direct connection
between the politicization of public health and anti-vax sentiment, elites have given credibility to
those who would reject even sound medical advice. The year 2020 also saw the largest single-year
increase in homicide in over a century, as concerns over systemic racism and the microscopically
small number of police shootings of unarmed black men came to dominate our political
discourse.29 Just as with the discussion around Covid-19, mainstream media accounts of the
increase in murder have been deformed by a political narrative. Despite the fact that a similar rise
in homicide did not occur in other nations that were also suffering from the pandemic, the media
sought to place the blame on disruptions related to Covid-19 instead of the Black Lives Matter
movement.30
Politics and Culture Are Not Separate
Andrew Breitbart, the late media entrepreneur whose eponymous website has become massively
influential on the political right, helped popularize the adage that “politics is downstream from
culture.” Many opponents of wokeness have taken this phrase to heart. Of course there is nothing
wrong with creating art, media, and other private institutions that reflect conservative values.
Nonetheless, a reliance on the Breitbart doctrine can also lead to political passivity.
“Culture versus politics” is a false dichotomy. At the state, local, and national levels,
government spent about 47 percent of GDP in 2020, and it regulates the workplace in an endless
number of ways, both obvious and subtle. Most children attend government schools five days a
week for at least twelve years, and many spend more waking hours with state employees than
with their own parents. The state is so intertwined with the rest of life that it makes little sense to
treat culture and politics as separate forces in a modern society. They exist in a self-reinforcing
cycle, and any movement strong enough to conquer nearly all elite institutions, as wokeness has,
surely has had both working in its favor.
By way of analogy, imagine a historian trying to understand whether “politics” or “culture”
was more important in explaining how Christianity triumphed over Rome. Even as it was
occasionally oppressed by the authorities, the religion began to expand not long after the death of
Christ. This provided the background that led to the conversion of the Emperor Constantine in 312
AD and the Edict of Milan (313), which gave the faith official legal protection. Eventually, state
legitimacy throughout Europe came to be based on Christianity, and rival faiths were extinguished
through the use of government force.
To draw a simple explanation that seeks to understand Christianization as a matter of culture
or politics would be misguided. For a faith to come to dominate a continent, it needed both on its
side, and the results did not unfold through a dialectical process of logic but depended on
historically contingent factors. In later centuries, there were countries where state power was
hostile to Christianity, such as China and Japan, and in those places Christianity did not gain a
foothold, let alone penetrate deep into society. Yet state power is not a magic bullet, and when the
Emperor Julian sought to restore religious eclecticism to Rome in the middle of the fourth century,
it was too late, as Christianity continued to advance and ensured that the days of paganism were
numbered.
We only need to look at the current state of the law and its historical development to
understand the extent to which the American government manages social relations. Every major
corporation must keep statistics on race and sex, and the process of classification itself creates
mental categories and influences thought. Businesses must display “EEO Is the Law” posters,
which tell the world that an employer both practices affirmative action and does not discriminate
based on race. Citizens are thus socialized to engage in doublethink, not question official dogma
on sensitive issues, and walk on eggshells when faced with the demands of noisy activists within
institutions, no matter how unreasonable they might be. Human resources, as the extended arm of
the state, plays the role of enforcer. Government legitimizes certain identities as a basis for
political organization while delegitimizing others, makes highly contentious and largely absurd
ideas about the causes of disparities between groups official doctrine, and punishes those who
believe differently or would build institutions that take an alternative view. Culture has its own
independent force, but the state has since the 1960s been putting its thumb on the scale.
The Civil Rights Act of 1991 was the last piece of legislation that made a major difference in
the kinds of trade-offs institutions face when deciding how to police speech and behavior, and its
signing roughly corresponds with the rise of political correctness as a dominant force in American
culture. In addition to showing that the basics of wokeness have been baked into the legal system
for decades, this book argues that the regulatory regime we live under has provided the
suprastructure through which broader cultural changes have taken place.
To understand how static laws can be causes of changes in a dynamic culture, think of a
country that privileges a certain religion over others. The state decides what counts as correct
doctrine, forces institutions and private organizations to take religion into account in promotion
and hiring decisions, enforces anti-blasphemy laws, and provides direct and indirect subsidies to
certain churches and not others. Even under such a regime, religiosity among the general public
can fluctuate over time. This does not mean that the state is irrelevant; during periods in which
religiosity is on the rise, we can still reasonably say that the legal regime is in part responsible. We
would be especially likely to give credence to this view if heightened religiosity takes the form of
adherence to doctrinal tenets that justify state power.
Overview
This book is both a work of history and a practical guide to politics. Others have argued that no
matter what the roots of group disparities are, government programs to fix them are likely to
backfire and make things worse.31 This book goes further than most in its perspective on how
disastrous the downstream effects of policies meant to reduce inequality between designated
groups have been.
The first unique contribution of this work is in explaining how we got to our current cultural
moment, through a focus on legal structures and practical politics rather than philosophy. The
opening chapters of the book provide a history of the law and show how government regulations
have changed American practices and institutions. Some Americans celebrate the triumph of left-
wing ideas on race and gender once relegated to the fringes of the academy, while others
denounce it. Yet each side has an interest in understanding how we got here, and the historical and
legal analysis provided can hopefully be of benefit to all intelligent readers, regardless of political
orientation.
Second, this book seeks to provide a plan for how those opposed to wokeness can reverse its
effects. The story of how we moved from the Civil Rights Act of 1964, a bill that is on its face
race-neutral and only concerned with explicit discrimination, to practically all major institutions
being dominated by wokeness, is one of path dependency and unintended consequences. This
provides those on the right with practical steps they can take to return to a world in which they at
least have a chance in the culture wars. It offers a path back toward a society that places more
emphasis on merit and free speech, and less on achieving equality between groups. It shows how,
by changing or repealing a few laws, one can foster diversity across institutions, instead of using
race- and sex-consciousness to promote diversity within institutions, which ironically leads to
their homogenization.
How would the policy recommendations argued for in this book ultimately change the culture,
away from politicized institutions and a focus on disparities in outcomes, and toward objective
standards of merit and an ideal of equal treatment? What would the downstream effects be on the
larger society? While it would be naive to think that reversing the excesses of civil rights law
would change the culture overnight, what our politics can do is give less control to left-wing
bureaucrats and allow markets and individual preferences to have more of a say in how
institutions evolve.
For established institutions that have gone all in on the new faith, particularly colleges and
universities, there are likely limits to what can be done. Coca-Cola and Microsoft will continue to
be woke, and government policy is unlikely to make much of a difference. The hope is that the
next generation of successful entrepreneurs and the institutions they build are molded in a legal
environment that is more politically neutral. We see hints of what may come in the rise of
corporations, like Coinbase, Substack, and Basecamp, that are explicitly disavowing political
activism, even in the absence of any changes in civil rights law. There will be no V-Day in the war
on wokeness; rather, those outraged by current trends should try to change laws today in the hopes
of creating a new society decades down the line, perhaps well after the political and cultural
battles of the present are forgotten.
Table 1 on the following page summarizes the main doctrines that underpin wokeness,
explaining where they came from, their practical effects, and how they can be undone. Unless the
reader has a legal background, not much of it will be comprehensible now. Nonetheless, including
the table here can provide a framework and reference point for understanding the rest of the book.
Moreover, even if the reader puts the book down after reading the introduction and chapter 1, they
will have at least seen the “cheat sheet” and hopefully absorbed something about the argument.
Table 1 is not meant to be all-exhaustive. To describe all the ways in which government uses
race, gender, and sexuality to encourage certain identities and discourage others, restrict speech,
discriminate between its citizens, and interfere in private affairs would require volumes of legal
analysis. In 1995, when Sen. Bob Dole asked the Congressional Research Service for a report on
federal programs that use racial and ethnic criteria, it came back with 160 of them.32 This book
focuses on the most important doctrines that have been used for the purposes of social
engineering, and encourages those who are anti-woke to prioritize new laws, regulations, and
judicial decisions that can have the most far-reaching impact on undoing the damage.
Table 1. Characteristics of the main doctrines of wokeness as law
(nonexhaustive list) and legal mechanisms for reform
Doctrine Legal
Basis
Description Enforcement Effects How to Undo
Affirmative
action in
government
contracting
and
government
employment
Executive
orders,
particularly
EO 11246
(contracting)
and EO
11478
(federal
government)
Forces federal
agencies and
contractors
and
subcontractors
of a certain
size to adopt
affirmative
action
programs,
other forms of
race- and sex-
consciousness
Office of
Federal
Contract
Compliance
Programs
(OFCCP) in
Department of
Labor, other
agencies
Applies to almost
a third of US
workforce,
mandatory race-
and sex-
consciousness,
“soft quotas” with
vague standards
and arbitrary
government
power, rise of HR
Amend EO
11246 and EO
11478 to ban
affirmative
action instead
of requiring it,
similar action
with state
contracting,
courts declaring
current
interpretations
unconstitutional
Disparate
impact
(private
sector)
Title VII of
Civil Rights
Act of 1964
(CRA),
Griggs v.
Duke Power
For all
employers of a
certain size,
any practice
that has a
“disparate
Equal
Employment
Opportunity
Commission
(EEOC),
Similar to
affirmative action
requirements, but
even more
arbitrary
enforcement since
Court decision
that disparate
impact doctrine
violates Equal
Protection
Clause by
Company
(1971), CRA
of 1991
impact” on a
certain group
is
presumptively
illegal
private
lawsuits
everything has a
disparate impact
requiring
discrimination
Disparate
impact
(government
funding)
Title VI of
CRA, Title
IX (1972), of
questionable
legality
(Alexander v.
Sandoval,
2001), but
continues
nonetheless
Institutions
receiving
federal
funding
cannot
discriminate,
interpreted to
mean
disparate
impact as with
Title VII
Throughout
the executive
branch,
particularly
Civil Rights
Division of the
Department of
Justice (CRD)
and Office for
Civil Rights in
the
Department of
Education
(OCR)
Similar to
disparate impact
in private sector,
anti-merit and
bureaucratization
in education and
state and local
government;
makes fighting
crime and school
discipline more
difficult
Court decision
that Title VI of
CRA requires
intentional
discrimination;
executive
branch
reinterpreting
law to be
consistent with
original intent
Anti-
harassment
law (private
sector)
Title VII of
CRA
Bans conduct
“severe or
pervasive”
enough based
on a protected
category
EEOC, private
lawsuits
Corporate HR
policies that have
“zero tolerance”
for anything
potentially
offensive,
sanitization of the
workplace
Declare aspects
unconstitutional
as
infringements
of First
Amendment by
in effect
outlawing
private speech
Anti-
harassment
law, parity
in women’s
sports
(education)
Title VI of
CRA, Title
IX (1972)
Institutions
receiving
federal
funding
cannot
discriminate,
used for social
engineering in
education
Throughout
the executive
branch, but
particularly
OCR
University
bureaucratization,
regulation of
speech and social
life
Reining in
OCR, court
decisions
against its
interpretation
of Title IX
Wokeness in its current form was not explicitly created at the top and forced on every firm;
rather, anti-discrimination laws as invented and interpreted by bureaucrats, lawyers, and judges
created incentives that had the practical effect of stamping out diversity across institutions, which
have been shaped within a particular cultural and legal environment. People don’t change their
politics much as they grow older, which means that public opinion often shifts largely due to
generational turnover.33 The development of dominant attitudes and patterns of behavior among
institutions likely works in a similar way. Yet there is institutional turnover. Only 38 percent of
Fortune 500 companies in 1995 were still on the list by 2016, with an average of fourteen new
firms per year.34 Moreover, the rate of turnover appears to be accelerating, with S&P 500
companies in 1965 having had more staying power than those from 2012.
Opposing wokeness cannot just be about changing institutions today. Inertia is simply too
strong of a force. Our major corporations came of age in a legal environment in which bureaucrats
and courts were on the constant lookout for racism and sexism, and they built an entire section of
their workforce in order to address such concerns. Those hired, and all those who have benefited
from the resulting system, are unlikely to go anywhere. In the last few years, conservatives have
begun to realize that they are fighting for the minds of future generations as they’ve mobilized
around issues related to school curricula, particularly the teaching of critical race theory and new
ideas about gender and sexual orientation. As Tanner Greer points out, “culture wars are long
wars.” Millennials may be lost to conservatives, along with Generation Z, but the college
graduates of 2030 and beyond might not be.35 Institutions must be thought of in the same way.
Undoing the excesses of civil rights law is not the ultimate solution to wokeness. Rather, it should
be seen as the first step toward evening the playing field so the real game can begin.
Chapter 2
Lies, Damned Lies, and Civil Rights Law
On February 8, 1964, as Congress debated what would become the Civil
Rights Act, Rep. Howard Smith (D-VA) introduced an amendment to the
bill. As proposed, the law prohibited discrimination based on race, color,
religion, and national origin in employment. In an attempt to kill the bill,
Rep. Smith proposed including sex as a protected category. In explaining
why, he claimed to have received a letter from “a lady” who was upset that
the country had too many women relative to men, meaning that many
“spinsters,” he said she’d written, were deprived of “the ‘right’ of every
female to have a husband.” Amid laughter, he assured the House of
Representatives that “she has her statistics, which is the reason why I am
reading it to you, because this is serious.”1
Despite Rep. Smith’s intentions, the amendment passed, as did the Civil
Rights Act. In its early years, the newly formed EEOC had no idea what to
do with the ban on sex discrimination, a concept that seemed fanciful in the
mid-1960s. Its first executive director in 1966 called the provision a “fluke”
that was “conceived out of wedlock,” asserting that “men are entitled to
female secretaries.”2 The EEOC was initially unsure whether the Civil
Rights Act even prohibited protective legislation at the state level, which
banned women from certain professions or limited their hours.3 But due to
pressure both from within and outside government, things soon began to
change radically, and by the early 1970s, feminism in something resembling
its current form had triumphed within the federal bureaucracy. In 2020, the
ban on sex discrimination—passed at a time when homosexuality and
transgenderism were widely believed to be forms of social deviance—was
relied on by the Supreme Court in Bostock v. Clayton County to rule that
discrimination based on sexual orientation or gender identity was also
prohibited. The story of how sex discrimination became illegal, and how the
definition of “discrimination” changed over time, tells us something
fundamental about how the American system works.
In the simplified version of constitutional law presented to
schoolchildren, Congress passes bills, the executive branch enforces them,
and courts interpret the law. But in the hands of bureaucrats, executive
agencies, and judges, the text can take on a life of its own.
This is the story of civil rights law. It is likely that few, if any, members
of Congress at the time would have believed that the bill signed by
President Johnson would ultimately force police departments to lower their
physical fitness standards to accommodate women, much less make
employers subscribe to theories about the malleability and subjectivity of
gender that had yet to be invented. What is called civil rights law today has
little to do with the values and beliefs of American society in 1964. The
debate that culminated in the CRA was about the misfortunes of black
people in the South, and even that resulted in a compromise that mandated
equal treatment in the private and public sectors.
No one in American society thought that Congress was in the process of
creating an open-ended and indefinite commitment to achieving equality
between various groups. Between 1940 and 1972, the New York Times
reported on 3,800 demonstrations in favor of civil rights, of which 95
percent were in relation to discrimination against African Americans.4 One
analysis shows sixty-nine instances of representatives for black
organizations testifying before Congress in civil rights hearings between
1940 and 1972, compared to two for all other races, and nine for any
national origins group.5 When President Johnson signed the Civil Rights
Act, he only mentioned discrimination based on race and color. The first
annual report from the EEOC, released in 1966, stated plainly that “the
chief thrust of the statute was, of course, aimed at discrimination against the
Negro.”6
The federal government has not only interpreted the CRA in ways that
Congress could not have foreseen. In some ways, its interpretations have
directly contradicted what legislators promised and agreed to. In his
opening statement in the debate over the bill, Sen. Hubert Humphrey told
fellow legislators that there was no chance that it would lead to reverse
discrimination.7
That bugaboo has been brought up a dozen times: but it is nonexistent. In fact, the
very opposite is true. Title VII prohibits discrimination. In effect, it says that race,
religion, and national origin are not to be used as the basis for hiring and firing.
Further emphasizing the point, the future vice president told a skeptical
colleague that if he could find “any language which provides that an
employer will have to hire on the basis of percentage or quota related to
color … I will start eating the pages.” Yet Congress wasn’t satisfied with
such assurances. So the following text was also added to the bill:
Nothing contained in this title shall be interpreted to require any [employer or labor
union] to grant preferential treatment to any individual or to any group because of the
race, color, religion, sex, or national origin of such individual or group on account of
an imbalance which may exist …
The text of the document and the legislative history agree on this point.
Yet ultimately none of this would matter, and it would be used to justify
proportional hiring by race and sex. In 1968, Clifford Alexander, the
director of the EEOC, declared, “Our most valid standard is in numbers …
The only accomplishment is when we look at all those numbers and see a
vast improvement in the picture.”8 A few years later, a Labor Department
official would explain requirements for government contractors by saying
that “affirmative action is anything you have to do to get results.”9
Congress would pass other bills, including the Equal Employment
Opportunity Act (EEOA) of 1972 and the Civil Rights Act of 1991, that
would be more friendly to race-conscious remedies for past discrimination.
But it never explicitly endorsed the main innovations of civil rights law.
The Supreme Court—engaging in the kind of sophistry that has become all
too common when judges mistake what they want the law to be for what the
law says—has at times taken the fact that Congress hasn’t overruled
bureaucratic and judicial innovations as an endorsement of them. This
ignores the status quo bias built into most systems, including our own. On
several issues, Congress could not have been clearer about what was or
wasn’t allowed in 1964, but ultimately text on paper passed by two large
and divided legislative bodies has proved no match for the machinations of
permanently placed bureaucrats and judges.
We can think of civil rights law as existing on three levels, which can be
analogized to the different ways a religion develops and is practiced. The
first is the text of legislation itself, which can be seen as the holy book.
While technically it is the highest authority one can appeal to, religious
books are often vague and self-contradictory. They are not updated to
account for changes in the real world. Even when a participant in an
argument appears to lose a debate based on the “plain text” of holy writ,
they can always appeal to the “spirit” of a relevant doctrine.
At the second level is the priestly class that interprets the faith. Unlike
the original authors of the text, these individuals are aware of and respond
to later historical and cultural circumstances, and have wide discretion in
interpretation. In civil rights law, these are most prominently civil rights
lawyers, bureaucrats, and judges. But there are additional interpreters of the
law, including those within the executive branch, and at lower levels,
individuals like HR professionals, school administrators, and others who
might be considered part of the “managerial class.” This is where one finds
the major innovations in civil rights law.
Finally, there is the community of religious believers who, by relying on
the priestly class, interpret the faith in ways consistent with pragmatism and
local conditions. This can be analogized to folk understanding of what the
state of the law is. For example, about a quarter of Americans believe that
hate speech is illegal, which is not technically true; but it can be seen as an
understandable mistake, given the state of anti-harassment law.10
The Civil Rights Act of 1964 was the culmination of a moral struggle
that had helped define the United States since its founding. Debates over
slavery almost derailed the adoption of the Constitution and led to a series
of compromises among the founding generation: the three-fifths rule; a
prohibition on Congress banning the slave trade until 1808; and the Fugitive
Slave Clause of the Constitution. After the Civil War, the main question of
American politics centered around what to do with newly emancipated
slaves. Reconstruction, an attempt to use federal power to force racial
equality onto the old Confederacy, ended in the aftermath of the election of
1876, through a congressional compromise that elevated Rutherford B.
Hayes to the presidency. After that, questions centered around the
relationship between black Americans and the rest of society were generally
treated as settled and a relatively minor issue until the 1950s.
What changed in the mid-twentieth century? It would be surprising if
the rise of television did not play a role, as it both nationalized politics and
provided footage that increased sympathy for the plight of black
southerners. In 1950, only 9 percent of American homes had a television.
This number rose to 65 percent in 1955, and 87 percent in 1960.11 In the
words of historian Rick Perlstein, writing on the power of the broadcast
networks, “TV news styled itself a moral center of American civic life … It
was their footage of Bull Connor’s fire hoses in Birmingham that catalyzed
the Civil Rights Act of 1964, their footage at the Edmund Pettus Bridge that
brought about the Voting Rights Act of 1965.”12
With the passage of these laws and others during the Johnson
administration, most Americans believed their elected officials were
responding to a specific problem in one area of the country. They were not
convinced of the need for an open-ended commitment that would struggle
to remove every statistically detectable form of inequality between blacks
and whites, much less whites and other groups, or men and women.
Nonetheless, in the words of Nathan Glazer, soon after Congress prohibited
discrimination based on race, color, religion, or national origin, “we then
began an extensive effort to record the race, color, and (some) national
origins of just about every student and employee and recipient of
government benefits or services in the nation; to require public and private
employers to undertake action to benefit given groups; and school systems
to assign their children on the basis of their race, color, and (some) national
origins.”13 This is not what the country signed up for, and it certainly did
not believe that government had been given a mandate to regulate humor
and dating, nor reach into the subconscious thoughts and desires of its
citizenry to cure them of their hidden biases.
This chapter addresses the four great innovations in civil rights law:
federally mandated affirmative action, disparate impact, harassment law,
and Title IX as a tool to regulate education. Ultimately, these doctrines have
led to arbitrary government power. Their requirements are tangible enough
to force institutions to be obsessed with race and sex, while either being
vague enough to rarely give clear guidance regarding what is allowed or
forbidden, or, in the case of Title IX, micromanaging the professional and
personal lives of students and those employed by schools and universities.
In the case of disparate impact, the doctrine makes practically everything
potentially illegal. It gives government discretion as to what to go after,
making it the skeleton key of the identity-obsessed left. All of this can help
one understand the subject of the next chapter, which discusses how these
doctrines have given rise to bureaucracies that suppress speech, regulate
conduct, and enforce adherence to left-wing beliefs about the sources of
inequality between groups.
Affirmative Action for Contractors
In theory, executive orders, which are signed by the president, are federal
directives on how an existing law will be interpreted and enforced. In
practice, they often make law, just as judicial decisions do. The executive
branch has long used its contracting power to regulate business in ways that
would require legislation if applied to non-contractors. Congress
appropriates money, but the executive branch, by necessity, must sign and
enforce the contracts to carry out government functions, and this has given
the latter leverage over the private sector.
The first modern EO on equal opportunity in federal contracting was
signed by President Roosevelt in June 1941, just months before the US
entered the Second World War. It banned discrimination by federal
agencies, along with unions and companies engaged in war-related work.
Shortly after taking office, President Kennedy in EO 10925 required
government contractors with business beyond a minimum threshold to “take
affirmative action” to ensure nondiscrimination in employment with regard
to “race, color, religion, or national origin,” and created the President’s
Committee on Equal Employment Opportunity. The year after the CRA was
passed, President Johnson signed EO 11246, which, as amended throughout
the years, has become the basis of the modern affirmative action in
contracting regime. It created what would come to be called the Office of
Federal Contract Compliance Programs (OFCCP), located within the Labor
Department. In 1967, Johnson added “sex” to its prohibited categories, and
Obama included “sexual orientation” and “gender identity” in 2014.
While Johnson originally signed EO 11246, it was the Nixon
administration that ironically created the affirmative action regime we see
today, over the resistance of a bipartisan coalition in Congress. Under the
Labor Department, the administration began by forcing affirmative action
on construction workers, first in Philadelphia, and then nationwide. This
was followed up in 1971 by Revised Order No. 4, which expanded the
regulations beyond the construction industry to all contractors and
subcontractors doing business with the government beyond a minimum
threshold, forcing them to adopt goals and timetables whenever women or
minorities were shown to be “underutilized” relative to the relevant labor
pool.14
The ultimate authority of the executive branch to legally mandate
affirmative action among contractors is unclear. A 1969 memo from
Attorney General John Mitchell mentioned the Civil Rights Act but mostly
relied on the president’s constitutional authority.15 A decade later, the
Supreme Court mentioned two other statutes as potential sources of
executive power in this area.16 While it may seem strange to non-lawyers
that there is such a high degree of uncertainty about the legal justification
for regulations that have done so much to remake the American workplace,
this is only one of the many contradictions and paradoxes inherent in
decades of making law through obscure regulatory procedures, subject not
to democratic processes but only judicial review, and often not even that.
Nonetheless, while its legal basis is murky, there is much less doubt
about the reach of EO 11246 and its successor documents. Because of the
extent to which government spends money and involves itself in the
economy, its ability to regulate contractors has always been a major source
of leverage. Employers required to have an affirmative action program must
include all of their facilities, employees, and operations in the plan, even if
the government contracts in question represent only a small portion of their
business. Moreover, the biggest employers in the private sector are more
likely than most other businesses to have federal contracts; about a third of
Fortune 500 companies did so in 2015.17 Today, about a quarter of the
American workforce is employed by a government contractor.18 It is
important to note that, pursuant to EO 11478 of 1969, affirmative action
also exists within the federal government itself, which employs another 6
percent of the workforce.
Under affirmative action guidelines as applied to government
contractors, it is no exaggeration to say that businesses are forced to be
obsessed with race and sex. Long before people noticed that identity-related
issues had consumed American universities, something resembling modern
wokeness had already been forced on big business. Affirmative action is
required for every employer with fifty employees that does at least $50,000
worth of business a year with the federal government, and every
subcontractor with at least $10,000 in business. Government regulations
specify that a “central premise underlying affirmative action is that, absent
discrimination, over time a contractor’s workforce, generally, will reflect
the gender, racial and ethnic profile of the labor pools from which the
contractor recruits and selects.”19 If a contractor falls short in any particular
area, it must take “practical steps” to make up for its deficiency.
The employer is required to participate in a detailed process of identity-
based classification and analysis. Middle managers for construction
companies and retail store owners become social scientists. First, employers
are forced to create an “organizational profile,” defined as “a detailed
graphical or tabular chart, text, spreadsheet or similar presentation of the
contractor’s organizational structure.” The contractor must break his
business down into “organizational units,” and record the race, gender, and
ethnicity of the supervisor of each one. Within each unit, the business must
record the number of males and females of each of the following groups:
blacks, Hispanics, Asians/Pacific Islanders, and American Indians/Alaskan
Natives. Race and sex are to be determined by self-identification, with the
employer prohibited from overruling an individual’s selection, although
visual classification is acceptable under certain conditions.20 The next step
is engaging in a “workforce analysis,” which divides the employees of a
company by job title. Those with titles that are similar in terms of work and
pay are combined into “job groups.”
This initial work is required to get to the “job group analysis.” This
means comparing the number of women and minorities in each job group to
their estimated availability in the population. And how does one determine
availability? By coming up with a number for the “percentage of minorities
or women with requisite skills in the reasonable recruitment area.” When a
particular demographic is underrepresented in a job group, the employer
must create “placement goals” to correct its deficiency.
This system is bizarre in several respects. Instead of the government
mandating a number of women and minorities to be hired in a given job, it
leaves the employer to engage in a series of subjective analyses and set
goals and timetables for itself. The contractor has discretion regarding how
it classifies its employees into job groups and to some extent how it decides
to place them with regard to the four “minority groups.” The “availability
analysis” itself is particularly absurd, as it would be a challenge for a team
of social scientists to determine how many women and minorities in a
particular area are qualified for each job category. How business owners and
corporations should be reasonably expected to do so is never adequately
explained. One is advised to consult “census data, data from local job
service offices, and data from colleges or other training institutions.” The
contractor is warned, however, that it cannot define “reasonable recruitment
area” in a way “to have the effect of excluding minorities or women.”
Every aspect of employers’ analysis is reviewable by government
bureaucrats. For the same reason that a contractor can always get around
affirmative action requirements, the government can always find grounds to
apply pressure on a business. From the contractor’s perspective, all they can
know for certain is that they must go through the motions, and that hiring
and promoting more minorities and women will be less likely to get them in
trouble.
At the same time, businesses are told that “quotas are expressly
forbidden.” Incredibly, we are to believe that placement goals as they are
intended to be used “do not create set-asides for specific groups, nor are
they intended to achieve proportional representation or equal results.”
Somehow, sentences like this are found in the exact same regulations
requiring placement goals based on nothing more than disparities in
representation. Quite simply, businesses need to classify their employees,
and in many cases engage in reverse discrimination, though they are
prohibited from being too explicit about it. As Edward C. Sylvester, the first
director (1965–1968) of what became the OFCCP, said in a statement to
businessmen, “Affirmative action is anything you have to do to get results.
But this does not necessarily include preferential treatment. The key word
here is ‘results.’”21 “Results” but not “quotas.” This presumes that there is
always a way to get results by neutral and objective methods, an idea that
there has never been the slightest bit of evidence for, which is of course
why government regulations mandate that businesses take into account race
and sex in the first place. Politicians have played the same game. As one
historian wrote about the thirty-seventh president, “The affirmative action
measures Nixon adopted were goals; those he rejected were quotas.”22
Places of business must broadcast this doublethink to the world,
announcing themselves as “equal opportunity employers,” which means
that decisions are made without discriminating based on protected
categories. No reader should make the mistake of believing that the detailed
and dense nature of Labor Department regulations means that they are
logically coherent or adhere to basic principles of the rule of law. Rather,
they make a soft quota system politically and legally palatable while giving
regulators arbitrary power over business as they pretend to restrain
themselves.
The result is not simply that the contractor works toward numerical
goals and treats some employees differently than others. To do business
with the federal government, one must participate in rituals that both
legitimize the goals of the state while hiding the nature of the project.
Among the requirements placed on employers is one to make someone in
the organization responsible for the affirmative action program. Every
individual in the workforce, and even applicants, are to be recorded and
classified according to sex and government race categories. Each business
must be aware of the racial dynamics in its own community, forcing the
private sector into the dishonest project of creating identity-obsessed
institutions that simultaneously champion equal treatment.
Sociologists and anthropologists have noted the role that ritual plays in
legitimizing religious, social, and political orders. Some definitions even
focus on ritual as the defining feature of religion, as opposed to what
individuals truly believe. Government contract compliance serves this
purpose when it forces the private sector to express agreement with and act
on the basis of left-wing beliefs about the ubiquity of discrimination and its
role in causing group disparities. Wokeness starts to look deeply rooted in
the beliefs of individuals and therefore indestructible as every elite
institution appears to be speaking with the same voice, or even using the
same exact words and phrases that the government forces them to repeat in
order to remain in good standing.
In Vaclav Havel’s famous story about the greengrocer that mouths
communist propaganda, a shop owner displays an official message to
communicate to the world that he is the type of person who wants to live a
quiet life and be left alone.23 But the message cannot explicitly state this,
for his sense of dignity will not allow him to publicly announce his
cowardice to the world. The obfuscatory nature of affirmative action
regulations plays a similar role. Americans believe in equal opportunity and
treating people as individuals. Few Americans want to devote their lives to
institutions that openly discriminate against their fellow citizens. Instead of
making individuals refute widely held principles and directly face the fact
that they must adopt identity-based preferences in order to receive
government contracts, individuals who run private institutions are forced to
be obsessed with race and sex, but in the name of nondiscrimination.
Disparate Impact: Everything Is Illegal
While the authority of the executive branch to force affirmative action onto
government contractors continues to rest on an uncertain premise, the
doctrine of disparate impact claims to be based on the Civil Rights Act of
4. This principle ensures that even private businesses without
government contracts must embrace an identity-based view of the world.
The history of the disparate impact doctrine is illuminating in showing the
extent to which government bureaucracies and judges can ignore the law in
pursuit of a political agenda.
What has become civil rights law bears little resemblance to the act that
Congress passed in 1964. Nondiscrimination was to apply to public
accommodations (Title II), public facilities (Title III), public education
(Title IV), public assistance programs (Title VI), and employment (Title
VII).24 The last of these provisions, in Section 703, makes it illegal
- to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race, color,
religion, sex, or national origin;- to limit, segregate, or classify his employees in any way which would deprive or
tend to deprive any individual of employment opportunities or otherwise
adversely affect his status as an employee because of [same protected categories].
The act itself never defines “discrimination.” But the historical record is
about as clear as it can possibly be regarding what the authors of the bill
meant. Time and again, members of Congress foresaw the possibility that
Title VII could be used to push for a disparate impact standard or equality
of outcomes, and it is difficult to imagine how they could have made
themselves clearer that such interpretations were forbidden.
Seeing the extent to which Congress was explicit about the bill it was
passing, and how judges and bureaucrats would ignore its wishes anyway,
raises serious questions about who ultimately has the power to make law
under our system of government.
At various points throughout the debate over the Civil Rights Act,
critics of the bill expressed concern that it might do x. In response,
supporters of the bill would say, “no, it won’t do x,” and the two sides
would agree to a compromise that involved entering a clause into the bill in
effect saying that “x is prohibited.” Usually within a decade, the EEOC and
the federal courts would do x anyway.
According to Herman Belz, “Provisions of Title VII that were thought to
have a clear and unequivocal meaning in the debate on the Civil Rights Act
were redefined by the plaintiffs’ bar and the judiciary at will.”25 For
example, the law included a provision that protected seniority systems that
had existed before the bill was passed, meaning that the new law was not
supposed to be retrospective, but simply stop discrimination in the future.
Within a few years, old collective bargaining agreements were being thrown
out on the grounds that they froze patterns of racial inequality in place. The
most harmful interpretation of the Civil Rights Act, however, would
ultimately be the disparate impact standard. As the bill was being debated,
an anti-discrimination state commission in Illinois held Motorola to be
acting in an unfair manner because it gave an aptitude test that
disproportionately screened out blacks. The result in Washington was
outrage across the political spectrum. Sen. John Tower (R-TX) was
therefore able to insert Section 703(h) into Title VII. This provision allowed
employers to make use of “any professionally developed ability test,” as
long as it was not “designed, intended, or used” to discriminate.26
The testing provision was only a specific articulation of a more general
principle. Members of Congress were unanimous in saying that quotas were
discriminatory and that preferential treatment, even of the “reverse
discrimination” kind, was not allowed, and therefore of course not
mandatory. Hubert Humphrey’s promise to eat the bill if it required quotas
is perhaps the most famous of the assurances given. But others were just as
clear. In April 1964, Sen. Joseph P. Clark (D-PA) and Sen. Clifford P. Case
(R-NJ), the floor managers of the bill, submitted a joint memorandum to
clarify that there would be no reverse discrimination or disparate impact
standard. Not only would Title VII not require racial balancing, but it would
explicitly forbid it. Even if there were a job qualification where, “because of
differences in background and education,” some groups performed better
than others, Title VII would do nothing to make it illegal. According to the
memorandum, “an employer may set his qualifications as high as he
likes … and he may hire, assign, and promote on the basis of test
performance.” Sen. Harrison A. Williams (D-NJ) put it even more bluntly
when he declared that “an employer with only white employees could
continue to have only the best qualified persons even if they were all
white.”27
Despite all this, in 1968, the EEOC commissioner would say that “our
most valid standard is numbers … The only accomplishment is when we
look at all those numbers and see a vast improvement in the picture.”28 The
Supreme Court sanctioned this approach in Griggs v. Duke Power Co.
(1971), which ruled that intelligence tests on which blacks scored lower
than whites could not be used in hiring without creating a presumption that
the employer was discriminating based on race. The new doctrine of
disparate impact did not require any discriminatory intent on the part of a
firm. As long as something the firm did benefited one group at the expense
of another, it could potentially face legal liability. The Griggs decision
allowed for an employer to defend itself by pointing to “business
necessity.” In practice, however, the EEOC took this to mean that
employers would have to engage in expensive validation procedures for a
test to be allowed, and the agency put up other hurdles, such as requiring
that tests be shown to be predictive for every particular minority group,
every single job within an organization, and for the same job across
different institutions.29 A Department of Justice (DOJ) memorandum in
1976 noted that the rules had made practically every employer that used
tests potentially noncompliant, and businesses were therefore engaging in
numerical hiring to achieve racial balance. Observers made the reasonable
assumption that the goal of EEOC regulations was to make standardized
tests as difficult as possible to use, in order to push employers toward hiring
and promotion procedures that were geared toward achieving high enough
levels of representation for women and minorities.
The outrageousness of Griggs can be seen in the fact that even those
who have supported preferential treatment for blacks have acknowledged
that there is little support for their favored policy in either the text of the
Civil Rights Act or the congressional record. The EEOC itself urged the
NAACP not to appeal its limited victory in the Fourth Circuit in Griggs
because the test in question was of the exact type the statute sought to
protect in 1964.30 Just two years before the decision, the EEOC had
published an official history in which it admitted that the common
understanding of Title VII was that discrimination required intent on the
part of the employer. Once its preferred interpretation of the law was
reviewed by the judiciary, it predicted that “the Commission and the courts
will be in disagreement.” Nonetheless, the year after Griggs, the Equal
Employment Opportunity Act brought state and local employment under the
power of the EEOC, thus applying the disparate impact standard in those
contexts too. The law also consolidated anti-discrimination efforts within
the federal government in that same body.31
Ironically, by being concerned with unintentional discrimination against
certain “protected” groups, disparate impact doctrine requires intentional
discrimination against others. An employer who wants to use intelligence
tests to hire is potentially barred from doing so because whites could do too
well. He must make a conscious decision to pick a hiring practice that
guarantees fewer white people, in order to avoid one that has a disparate
impact against blacks. Griggs, therefore, diverges from the original intent of
the Civil Rights Act in two ways, both expanding the definition of what
counts as “discrimination” when it comes to women and minorities, and by
necessity therefore giving whites and men less protection than Congress
thought it was providing them.
When faced with undeniable evidence in the plain text of the law and
historical record, judges have appealed to the higher purpose of the statute.
By passing the Civil Rights Act, Congress meant to help black people, so
the “purpose” of the law can supposedly allow disparate treatment by race
in order to achieve equal results. An unusually honest opinion was the
concurrence by Justice Harry Blackmun in United Steelworkers v. Weber
(1979). In that case, the Labor Department had forced a quota system onto a
contractor and the labor union it worked with, requiring that half of new
positions in a program to train skilled craftsmen go to blacks. A white
employee filed a class action lawsuit on the grounds that he and others of
his race had been discriminated against under Title VII.
The case thus forced the Supreme Court to address the contradiction
between affirmative action requirements placed on government contractors,
which were explicitly geared toward achieving racial balance, and the Civil
Rights Act, which prohibited racial discrimination against individuals.
Justice Blackmun signed on to the 5–2 decision authorizing reverse
discrimination even though, in his concurrence, he agreed with the dissent
that “the Congress that passed Title VII probably thought it was adopting a
principle of nondiscrimination that would apply to blacks and whites alike.”
Nonetheless, he decided that allowing preferences in favor of blacks—in
this case with government encouragement through the Labor Department—
should be allowed for reasons he called “practical and equitable.”
If this sounds like a judge making up the law to fit his own political
preference, that is because that is exactly what it is. At the very least, Justice
Blackmun should be credited for his candor. But to appeal to the purpose of
a statute to contradict its plain text is to nullify the bargain that Congress
ultimately arrived at. Yes, the Civil Rights Act was meant to improve the
condition of black people. But that goal was to be balanced against
concerns of individual liberty, economic freedom, federalism, and the
principle that nobody—including whites—should be discriminated against
on account of their race.
Laws are not supposed to be blank checks for courts and bureaucrats to
seek out their preferred policy outcomes. Alfred Blumrosen, an official who
worked for the EEOC in its early days, wrote with unusual candor about
how the agency sought to get around the plain meaning of the law, as he
and his allies preferred to see civil rights statutes more as broad “charters
for equality” than explicit rules about what government can and cannot
do.32
In a narrow sense, Griggs was about written tests used in the private
sector. However, the disparate impact doctrine also applies to government
employment, government-funded institutions, and practices other than
written exams. Title VI bans discrimination under any program that receives
financial assistance from the federal government. In Alexander v. Sandoval
(2001), the Court ruled that Title VI banned intentional discrimination, yet
left open the question of whether its rules also prohibit disparate impact,
while also holding that it did not create a private cause of action in the latter
kind of case. What this means in practice is that the disparate impact
standard in federally funded institutions is—while legally controversial and
perhaps soon to be found inconsistent with the Civil Rights Act—enforced
through the federal bureaucracy, though not through private lawsuits, like
Title VII usually is. Grant recipients under Title VI include agencies of state
and local governments and practically all schools and universities. Given
what was done with Title VII, it is not surprising to learn that Title VI has
made disparate impact a standard woven into private institutions and
American governance at all levels.
This is why the Obama administration went out of its way to harass
schools about punishment gaps between white and black students, explicitly
telling administrators that race-neutral policies could have a disparate
impact and therefore be illegal.33 In 1974, the Supreme Court deferred to
the Office for Civil Rights (OCR) in finding that not providing bilingual
education to children of immigrants was a violation of Title VI, although
later Supreme Court decisions made it difficult to enforce this invented
right.34 One result of applying Title VII to government employment has
been that states and localities hiring police, firefighters, and correctional
officers are now forced to lower physical standards in order to be able to
hire more women. Even literacy tests for teachers have been the subject of
civil rights lawsuits.35
Gail Heriot, a law professor and a member of the US Commission on
Civil Rights (USCCR), has offered to donate $10,000 to the charity of
choice of anyone who can find a single employment criterion that does not
have a disparate impact on some group.36 She hasn’t had to pay up, and
never will, since we find group differences with regard to practically any
trait, behavior, or exam subject to measurement. It is no exaggeration to say,
in her words, that disparate impact “makes almost everything presumptively
illegal.” The EEOC now adopts the four-fifths, or 80 percent, rule, which
says that if one group’s promotion or hiring rate is below four-fifths that of
another, it will be taken as evidence of disparate impact. If that includes
virtually everything, then which practices are likely to place extra scrutiny
on an employer, government department, or federal grant recipient? There
is no good answer to be found in law, and we are left with a system in
which courts and the federal bureaucracy have arbitrary power over how
institutions function and behave.
Harassment Law
Since disparate impact already covers just about everything, one might
suspect that any other doctrine would be unnecessary for civil rights
enforcement. Nonetheless, harassment law—built on the idea that Title VII
is violated when women or minorities are made to feel uncomfortable at
work—has developed to ensure that business owners must have their own
speech restricted, and also police their employees under federal law. The
first major court case to recognize a cause of racial harassment was Rogers
v. Equal Employment Opportunity Commission (1971), decided by the Fifth
Circuit Court of Appeals. A Hispanic woman in Texas working for an
optometrist claimed, among other things, that her employer used different
colors of ink to take the appointments of black and white patients. The
employer resisted this particular part of the resulting EEOC inquiry on the
grounds that it had nothing to do with an allegation made under Title VII; at
most, the practice would indicate discrimination against patients, which was
not under the jurisdiction of the body.
By a 2–1 decision, the Fifth Circuit disagreed. The opinion, by Judge
Irving L. Goldberg, held that discrimination against black customers could
contribute to an environment in which a Hispanic employee could feel
discriminated against. The court discerned in the statutory language of the
Civil Rights Act “a Congressional intention to define discrimination in the
broadest possible terms,” which showed an acknowledgment “that constant
change is the order of our day and that the seemingly reasonable practices
of the present can easily become the injustices of the morrow.” A mere
seven years after the signing of the bill, this now meant that the law
mandated the elimination of “working environments so heavily polluted
with discrimination as to destroy completely the emotional and
psychological stability of minority group workers.”
As with everything in civil rights law, courts and bureaucrats were
quicker to act to expand the definition of “harassment” based on race than
they were for sex. When it came to preventing the harassment of women,
they started with the most egregious and least sympathetic conduct before
then moving on and eventually reaching a point where there was practically
no limit to what kinds of behavior or speech were forbidden. In early sex
discrimination cases, courts found that a boss could demand sexual favors
from his subordinates without violating the Civil Rights Act, based on the
logic that it was the physical attraction to an employee or applicant, not her
sex per se, that motivated the conduct.37
This changed with the 1977 case of Barnes v. Costle. A female
employee working for the EPA claimed that her supervisor repeatedly
propositioned and eventually fired her for rejecting his advances. The DC
Circuit ruled that this was a violation of the law: “but for her womanhood,
from aught that appears, her participation in sexual activity would never
have been solicited.” The degree to which one has to stretch the meaning of
Title VII to find this result is shown in footnote 55 of the opinion: there the
Court says that if a supervisor or employer is bisexual, insisting on sexual
favors does not qualify as sexual harassment under the logic of the decision.
Left unanswered is whether it would violate civil rights law if the bisexual
employer was attracted to, say, thin women but only fat men, thus treating
the sexes differently.
Had this been as far as the courts and federal bureaucracy were willing
to go, there may have been little to complain about, no matter how badly
reasoned we consider such interpretations of the law. Yet simply forbidding
the demanding of sexual favors, like only attacking intentional
discrimination, did not go far enough for those motivated by profit and self-
righteousness and operating far outside of the view of democratic processes.
In 1979, law professor Catharine MacKinnon published Sexual Harassment
of Working Women. This work helped publicize the term “sexual
harassment,” which in the early 1970s appeared in around one in 50 million
n-grams (two-word phrases, in this case), according to the Google Ngram
viewer. By its peak in the mid-1990s, it was at about one in every 200,000.
Only in 1986, in Meritor Savings Bank v. Vinson, did the Supreme Court
sign off on the idea that speech or conduct could contribute to a “hostile
work environment” that potentially violated the law, even if there was no
tangible harm to the victim. Other innovations followed: sexual harassment
cases could be filed as class actions (Jenson v. Eveleth Taconite Co., Eighth
Circuit, 1997); employers could be held responsible for the actions of their
employees, not just themselves (Faragher v. City of Boca Raton, 1998; and
Burlington Industries, Inc. v. Ellerth, 1998); and offensive language and
pornography can constitute a hostile workplace, even if not targeted at any
particular employee (Reeves v. C. H. Robinson Worldwide, Inc., Eleventh
Circuit, 2010). We have therefore moved from bans on explicit
discrimination to practically any behavior or speech potentially offensive to
women.
In determining exactly which conduct is prohibited, courts have decided
that behavior is a violation of Title VII when it is “severe or pervasive”
enough to create a “hostile or abusive work environment” based on a
protected category, with a “reasonable person” standard for deciding which
conduct qualifies.38 As UCLA law professor Eugene Volokh points out,
there is no exception for speech that is protected by the First Amendment,
including religious, social, and political viewpoints. Even speech outside
the workplace can contribute to a hostile work environment. Volokh lists a
large number of court cases and bureaucratic decisions at the state and
federal levels that have found in constitutionally protected speech evidence
of a hostile work environment: signs with the phrase “Men Working”;
“draftsman” and “foreman” as job titles; pictures of Ayatollah Khomeini
and a burning American flag in a cubicle; an ad campaign using samurai,
Kabuki, and sumo wrestling to refer to Japanese competition; jokes of a
sexual nature not targeted at any particular person; misogynistic rap music;
and circulating offensive jokes and an employer praising a subordinate for
doing so.
Although the doctrine of hostile work environment does not make
isolated remarks or actions illegal, Volokh points out that the only plausible
way for employers to be sure they are following the law is to restrict speech
that could potentially be used as evidence of discrimination. Imagine a
manager hearing about a single incident in which a worker is offended.
Based on the guidance provided by regulators and the courts, such an action
is not necessarily against the law in isolation, but is potentially illegal if it is
part of a larger pattern. How can an employer thus create a rule that tells
employees that they have the right to speak freely on controversial topics or
display certain imagery, but only if other employees are not engaging in
similar conduct beyond a certain undefined threshold? An anti-harassment
training program that said “you can only make off-color jokes if others have
not also made off-color jokes” creates an impossible standard, one that
requires workers to monitor not only their own speech but everyone else’s
to even begin to know what is allowed or prohibited. The only reasonable
approach is to ban any actions, words, or behaviors that might offend
anyone.
The EEOC, largely staffed by liberal ideologues, has, as in the case of
disparate impact, pushed the definition of “harassment” as far as courts
have allowed them to take it. According to its website meant to provide
guidance to employers, offensive conduct may include “offensive jokes,”
“insults or put-downs,” “ridicule or mockery,” or “offensive objects or
pictures.”39 Moreover, the harasser does not need to be the victim’s
supervisor; he could even be “an agent of the employer, a co-worker, or a
non-employee.” Following the standard articulated in Rogers, a person can
be a victim of harassment without their being the individual targeted by the
offensive conduct. Jokes between two parties can result in a lawsuit from a
third. It is little wonder that human resource professionals tend to
recommend a zero tolerance approach to offensive speech.
One can see a real-world application of civil rights law in the case of
James Damore, the Google engineer who was fired in 2017 for suggesting
that female underrepresentation in certain technical fields might be due to
sex differences in personality and preferences. Damore was part of a lawsuit
against the company, filed partly on the grounds that he faced
discrimination as a white male and for his conservative views, as California
makes politically based discrimination illegal. Eventually, he settled with
the company, though many legal commentators argued that Google needed
to fire Damore to avoid creating a discriminatory environment for women.
While the civil suit against Google was settled, a lawyer for National Labor
Relations Board relied on EEOC guidance to conclude that Damore’s
speech was not protected, and Google was not discriminating against whites
and men because his memo expressed belief in stereotypes about women.40
It is unlikely that the management of Google was sympathetic to Damore’s
viewpoint, but the important thing to realize is that even if they were, civil
rights law probably made firing him the right business decision.
Title IX: Sports and Sexuality
As originally written, Title VI of the Civil Rights Act, unlike Title VII, did
not ban discrimination on account of sex. That change came with the
Education Amendments of 1972, which included a provision in Title IX
stating that “no person in the United States shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving Federal
financial assistance.” Few people noticed at the time, and Nixon’s signing
statement made no mention of what was to become one of the most
consequential legal changes of his presidency. But the law opened the door
to social engineering throughout schools and universities, and while one can
fault other civil rights doctrines for being vague, under Title IX the Office
for Civil Rights has promulgated rules and regulations in painstaking detail.
Under American law, Congress passes statutes, and agencies make
“rules” interpreting them. These rules are made through a highly formalized
process that, under the Administrative Procedure Act (APA), involves a
“notice and comment” period in which the public can submit feedback
regarding what a particular agency is proposing. Of course, even rules don’t
cover every possible ambiguity in interpretation, so agencies sometimes
also make statements that clarify rules. Importantly, this is not supposed to
be a way to make substantive changes to underlying law.
Women’s rights advocates saw a straightforward analogy between race
and sex discrimination. Shortly after Title IX was passed, however, it
became clear that there were important fundamental differences between
the two concepts. In 1974 and 1976, Congress added Title IX exemptions
that allowed for different living facilities for men and women, and for
fraternities and sororities; scholarships for beauty pageants; the Boy Scouts;
and father-son and mother-daughter events.41 As women made rapid gains
in education, Title IX began to bizarrely focus more and more on sports, an
area in which men have always shown more interest. The law came to in
effect require something approaching equality, or making progress toward
equality, in athletic participation. Its other major effect has been to make the
federal government regulate the sex lives of college students.
The process through which we got from the text of Title IX to a federal
government obsessed with sports and sex in college is hardly believable in a
country that prides itself on the rule of law. In every society that has ever
existed, men have shown more interest in athletic competition than women,
and the wider society has been more interested in seeing athletic contests
between men than between women, which is unsurprising given higher
levels of male athletic performance and aggression.42 Thus a natural
interpretation of Title IX as applied to sports would simply say that colleges
and universities needed to provide men and women similar opportunities in
ways that take into account the differences between them. In fact, this
would have been a completely reasonable interpretation of the 1975 rules
promulgated by OCR—then part of the Department of Health, Education,
and Welfare—which stated that schools needed to “effectively
accommodate the interests and abilities of both sexes.”43
As political scientist R. Shep Melnick writes, this was officially the last
time that the federal government made a major change to Title IX, as OCR
has simply been issuing “clarifications” to the text of Title IX and its 1975
rules ever since.44 The most important of these came in 1979, when OCR
issued a “three-part test” to determine whether schools were discriminating
against women in the field of athletics. In 1993 and 1996, the First Circuit
issued two opinions in Cohen v. Brown University that strengthened that test
and, in effect, required that the demographics of the varsity athlete
population resemble that of the university as a whole. Other circuits
followed, and in 1996 OCR issued another “clarification,” endorsing the
Cohen standard. Melnick calls this “leapfrogging,” the process of “courts
and agencies each taking a step beyond the other, expanding regulation
without seeming to innovate.”45 When Quinnipiac University was sued in
2010, “the district court relied heavily on OCR’s 1996 ‘clarification’ of its
1979 ‘interpretation’ of its 1975 regulations.” Congress has acknowledged
that statutory text is often insufficient to provide complete guidance as to
how an agency should fulfill its mission, which is why it created the rule-
making process specified in the APA. To ignore that process in order to
create substantial changes in the law subverts the entire system, but OCR
has gotten away with it when the courts have let it.
Simply requiring equality in the number of varsity athletes has not
settled the issue, however. Courts and government bureaucrats have found
themselves in the position of ruling on the merits of various sports. In the
Quinnipiac case, it was determined that “competitive cheering and
tumbling” did not count for the purposes of Title IX, so the school had to
reinstate the women’s volleyball team.46 When faced with clear evidence
that women are less interested in sports than men, regulators and judges
have responded that this is due to sex stereotyping, and that civil rights law
requires schools and universities to make men and women more
psychologically similar. For this reason, social engineers have shown a
distinct hostility to counting cheerleading as a sport, as well as refusing to
countenance less competitive and all-consuming models of female athletic
involvement, including one that as of 1972 was represented by the
Association for Intercollegiate Athletics for Women (AIAW)—an
organization that could have been the female version of the NCAA had
federal regulators and judges not imposed the model of the male
organization on both sexes.47 There is nothing in the text of Title IX that
mentions sports, and women outnumbering men in student government,
music, and other kinds of extracurricular activities has never bothered OCR
or the federal judiciary.48
Just as civil rights law in employment imposes soft quotas to get around
the fact that some groups have more productive workers than others, so too
colleges and universities have had to deal with the hard fact that men are
more interested in athletics by cutting male sports and padding their
numbers of female athletes through methods such as including on lists those
who never attend practices or games and double- or triple-counting
participants.49 One common loophole even allows schools to count male
practice players on women’s teams as female athletes.50 Title IX has been
particularly good for women’s rowing, a sport there is little demand for but
that has rules that can be manipulated in order to artificially inflate the
number of participants.51 Women’s rowing was at the center of the USC
admissions scandal that led to the indictment and eventual jailing of two
Hollywood actresses in 2019, an event that captured the attention of the
public as a story about wealth and privilege. Few noticed the absurdity of
being able to get into college by pretending to play a sport that might cease
to exist if not for a 1972 law.
As bizarre as the saga of Title IX in sports has been, the federal
government here looks prudent and restrained when we examine how the
same law has come to be used to impose a radical understanding of
heterosexual relations on higher education. As with the field of college
athletics, OCR has avoided following both the plain text of the law and the
official rule-making process as the avenue through which to make major
policy changes. In the 1990s, it started to inch toward importing harassment
law as it developed under Title VII into Title IX regulations to regulate
social life at schools and universities.52 After the Supreme Court made clear
that it would look skeptically on any attempts to “transfer” harassment law
from the context of employment to education, OCR began to ignore Title
VII.
In the first decades of Title IX, the law did not even address peer-to-peer
harassment but required schools to create grievance procedures to
determine whether institutions themselves were discriminating.53 It was
only in 1997 that OCR put out guidance that created an affirmative duty to
stop sexual harassment, and on the last day of the Clinton administration it
issued a thirty-seven-page document that detailed how schools should
handle categories of harassment. New innovations allowed for subjectivity
in deciding which conduct was prohibited and lowered the standard for how
pervasive or serious actions had to be in order to constitute a violation of
Title IX.54
The Clinton rules were held in abeyance and went unenforced under the
Bush administration but came back with a vengeance and were expanded
under Obama. Harvard Law professors (and husband and wife) Jacob
Gersen and Jeannie Suk have written about the resulting regulation and
bureaucratization of sex, focusing on universities as both a microcosm and
an extreme example of this particular effect of civil rights law.55 The
Obama administration ushered in grievance procedures to address incidents
in which one student had allegedly committed an offense against another. In
2011, OCR released a “Dear Colleague” letter that forbade universities from
requiring “clear and convincing” proof of sexual misconduct before
punishing a student, imposing a watered-down “preponderance of the
evidence” standard instead.56
The administration also showed how elastic the concept of
“discrimination” could be. A White House task force created a model
survey that defined “sexual violence” as including everything from
unwanted remarks about a person’s physical appearance to rape.57 This
document helped provide the basis for assessments on campus climate
carried out by colleges and universities across the country, and ultimately
led to headlines that alleged astronomically high levels of sexual violence
on college campuses. The Obama-era regulations also resulted in kangaroo
courts in which convictions of men accused of sexual assault were all but
assured, even for alleged conduct that was by all accounts legal.
The Department of Education under Obama also put a large emphasis
on shaping the beliefs, actions, and behaviors of students and university
employees. Melnick notes that “no word is repeated more frequently in
OCR guidance documents than ‘training.’”58 In a forty-six-page document
called “Questions and Answers on Title IX and Sexual Violence” released
by OCR in 2014, “train” and other forms of the word appear eighty times.59
While the documents themselves lack specificity as to what “training”
actually means, when OCR has reached settlements with universities
accused of discrimination, it has been willing to specify exactly what it
wants, which usually involves teaching that men systematically oppress
women and adopting expansive definitions of what constitutes sexual
harassment and assault.
A specialized bureaucracy has been needed in order to address these
issues. The Obama administration recommended that schools employ a full-
time Title IX coordinator who could act independently, reporting not to an
administrative body but directly to “senior leadership, such as the district
superintendent or the college or university president.”60 A section in one
document titled “Visibility of Title IX Coordinators” notes an obligation to
distribute the contact information of such officials on a school’s “website
and in various publications.”61 They were to be “appropriately trained,”
with a recommendation that schools see OCR’s regional offices for
technical assistance in the process.
In addition to guidelines released under Title IX, the Violence Against
Women Reauthorization Act of 2013 required schools and universities to
produce “a statement of policy” with regard to what they were doing to
“prevent domestic violence, dating violence, sexual assault, and stalking.”62
The Department of Education interpreted this to mean that schools would
need to adopt policies that “foster healthy, mutually respectful relationships
and sexuality, encourage safe bystander intervention, and seek to change
behavior and social norms in healthy and safe directions.”63 In subsequent
years, universities would start to require “affirmative,” if not “enthusiastic,”
consent for sexual behavior; define assault to include sexual acts performed
in any situation where drugs or alcohol were involved; and even suggest
lines and jokes students could use to make sure that their partner was
sufficiently eager to engage in sexual relations.
As Gersen and Suk write, “Under the rubric of preventing sexual
violence, school mini-bureaucracies within federal bureaucratic oversight
are engaged in a normative program of good-sex education, couched in
views about good relationships in which that good sex should be had.”64
Title IX was also used by the Obama administration to enforce trans
ideology, requiring schools to let children use bathrooms and locker rooms
consistent with their “gender identity” rather than their biological sex.
None of this went through the notice and comment procedure required
for enacting substantive government regulations. Rather, the Dear
Colleague letters sent out by the Obama administration, while not binding
as a matter of law, were treated as such. They provided the basis on which
OCR entered into agreements with individual universities to take specific
measures to address sexual violence. To strip funding from a university
under Title IX requires a hearing explaining exactly which obligations the
institution failed to live up to.65 Yet no university undertook any legal or
administrative challenge to the Obama-era regulations. In part this appears
to be due to ideological sympathy, but another factor may be that, unlike
private businesses, universities do not actually mind increasing bureaucratic
costs, since they will be passed on to their students or the taxpayer.
When OCR guidelines were challenged in court, the Title IX tribunals
of the Obama era were rebuked in dozens of cases, with the documents that
created them finally being withdrawn during the Trump administration.66
The universities could have challenged the regulations and would likely
have won, but there was less of an appetite to do so than there would have
been in the private sector. The bathroom policy did not even require a Dear
Colleague letter, as it involved an email from OCR to a transgender activist
interpreting previous Dear Colleague letters to ban discrimination based on
“gender identity and the failure to conform to stereotypical notions of
masculinity or femininity.”67
The Trump administration came into office determined to roll back the
Obama-era innovations. The new secretary of education, Betsy DeVos,
declared in September 2017 that “the era of ‘rule by letter’ is over.”68 The
OCR website lists nine letters released by the Obama administration and
withdrawn under Trump, including the 2011 letter on sexual violence, the
2014 Q&A on the topic, and the 2015 statement on the obligations a school
has regarding its Title IX coordinator, all mentioned above.69 Nonetheless,
even under the Trump administration, schools were still operating under
settlement agreements signed with OCR, investigations continued, and Title
IX offices within universities that were created and strengthened during the
Obama years maintained their institutional power.70
In this way, guidelines entitled to no legal or judicial deference and
released without the use of official rule-making authority had major cultural
effects on schools and universities that would not be erased with a change
in administration. Granting more power to social regulators has proved
easier than taking it away, particularly in a university setting where many
administrators and bureaucrats are sympathetic to feminist causes. In June
2022, the Biden administration announced that it would effectively seek to
institute many of the Obama policies withdrawn under Trump, but this time
by going through APA rule-making.71 This will presumably make it more
time-consuming and difficult for future administrations to move away from
a federal policy of engaging in social engineering in schools and on
university campuses.
In another worrying development, in July 2022, a Maryland federal
district court ruled that Title IX even applies to private schools that do not
get federal funding, on the theory that being exempt from taxation means
that an institution is receiving a subsidy.72 If such an idea were to get
traction, it would remove the most common “escape hatch” parents
previously had for avoiding civil rights regulations in how they educate
their children. It would also threaten the institutional model of Hillsdale
College, which refuses even to take financial aid for its students because it
does not want to comply with federal regulations. Conservative power in
the judiciary limits the damage that this idea can do on a wider scale, as it
only applies to Maryland, and any school that wanted to take the issue to
the Supreme Court would almost certainly win. But the decision serves as a
reminder of what liberals would do if they had more power, and the
importance of Republicans achieving the political victories necessary to
maintain a high level of representation on the courts.
The Skeleton Key of the Left
From the text of the original 1964 statute, one would think that civil rights
law protects whites and men as much as it does minorities and women. In
reality, however, because it is vague and prohibits almost everything,
bureaucrats and judges have a great deal of discretion with regard to who
gets punished and for what. The Supreme Court has explicitly rejected for
over three decades the idea that one can have different standards for
discrimination against “protected” and “unprotected” groups, yet that is
precisely what we find.73
This is part of a larger pattern, in which across a wide variety of areas
we find that civil rights law allows or mandates preferential treatment for
minorities and women as long as the nature and extent of the discrimination
are sufficiently obscured.
For example, affirmative action practiced by state institutions
potentially runs afoul of the Fourteenth Amendment, which prohibits
discrimination based on race, and Title VI, which prohibits federal funding
to entities that practice discrimination, a category that includes almost all
private universities. As we’ve seen, nondiscrimination is interpreted to
require race-consciousness and affirmative action in private-sector
employment. The question for university admissions is whether it bans such
practices under Title VI or the Fourteenth Amendment’s Equal Protection
Clause. As with EEOC and OFCCP standards, Supreme Court decisions
have consistently found that race can be used as a factor in admission but
that quotas are illegal.
In practice, universities use a barely veiled quota system, and liberal
judges and government bureaucrats have looked the other way. The last
major Supreme Court decisions on the topic were handed down in 2003, in
Gratz and Grutter. The first of these addressed the University of Michigan
undergraduate admissions program, which automatically awarded extra
points to every applicant from an “underrepresented minority” background.
This was ruled illegal because of its mechanistic nature, as it did not
consider applicants as individuals. However, in Grutter, the Supreme Court
upheld the University of Michigan Law School admission process, which
considered race but in a more “holistic” way that sought to achieve a
“critical mass” of underrepresented minority students.
Chief Justice Rehnquist wrote a dissent signed by four conservative
justices. They argued that “critical mass” was indistinguishable from a
quota. For each admissions cycle between 1995 and 2000, the University of
Michigan Law School admitted a similar number of African American,
Latino, and Native American students. Every year they apparently needed
approximately one hundred African Americans, fifty Hispanics, and fifteen
Native Americans to meet this standard, with African Americans
consistently needing lower scores than the other two minority groups. The
law school “never offered any race-specific arguments explaining why
significantly more individuals from one underrepresented minority group
are needed in order to achieve ‘critical mass’ or further student body
diversity” (emphasis in the original). This pattern made it clear that the
“alleged goal of ‘critical mass’ is simply a sham.” Moreover, in any given
year, the percentage of the student body admitted from each of the three
groups closely matched the percentage of applicants from each of those
groups. Only an unofficial quota system seeking racial balance explains
those admissions patterns.
As the Asian American population has grown in recent decades,
universities have faced a new dilemma. What to do about a minority group
that overperforms on admissions criteria? They responded similarly to how
they have responded when faced with underperforming minorities: with
unofficial quotas that they justified on other grounds. In 1993, 20.3 percent
of the Harvard incoming class was Asian. But between 1990 and 2011, the
number of Asians between the ages of eighteen and twenty-one in the
United States doubled, while the numbers admitted to Ivy League
universities stayed the same: between 15 and 20 percent of admitted
students every year in every school.74 When Harvard was sued for this, it
defended itself by arguing that the school took into account intangible
characteristics like “likability” and “courage.” Strangely enough, Asians,
the group with the highest test scores, were found by Harvard to have the
worst personalities, while groups with the lowest test scores had the best.75
As this book goes to press, the consolidated cases of Students for Fair
Admissions v. Harvard and Students for Fair Admissions v. University of
North Carolina are before the Supreme Court, and by now there may have
been enough conservative justices appointed for this charade, or at least the
legal sanction of it, to end.
Up to this point, affirmative action jurisprudence has given liberal
institutions and supporters of identity politics the best of all worlds. They
can use quotas to achieve balance, as long as they do not say that they are
using quotas, thereby staying within the letter of the law while also
obscuring what they are doing to avoid the uncomfortable truths and
political backlash that would present themselves if they made racial
discrimination explicit. This is primarily the fault of moderate rather than
liberal judges, as the latter have shown themselves willing to uphold
explicit quotas. While the current system of mandatory but implicit
discrimination has proved to be ideal for those on the identity-obsessed left,
it wasn’t designed by them. It is the result of a compromise arrived at to
please moderates who are too timid to support either color-blindness or
explicit discrimination against whites, Asians, and men.
Explicit quotas are preferable to the current system in that they could
potentially place limits on discrimination, leave more room for merit, and
provide clarity on what is and isn’t allowed. They would also be simpler to
administer, lead to less bureaucracy, and not require ideological litmus tests
in the form of “diversity statements,” which increasingly are required in
university hiring. What we have instead is a system where civil rights law
serves as the skeleton key of the left. As mentioned, courts and bureaucrats
treat cognitive tests with suspicion, but they have generally ignored college
degree requirements despite their having, similarly, a disparate impact. As
of 2019, among those twenty-five and older, 40 percent of whites had a
bachelor’s degree or higher, compared to 52 percent of Asians, 26 percent
of blacks, and 19 percent of Hispanics. Clearly any employer that requires a
BA or postgraduate degree could be accused of engaging in a practice that
has a disparate impact on the latter two groups under the four-fifths rule.
Unlike with cognitive tests, though, employers have seldom, if ever, gotten
in trouble for requiring college degrees, even when the kind of credential
necessary to be hired or promoted has no connection to the profession in
question. All of this despite a large literature showing IQ tests to be
predictive of job performance, and no evidence that college degrees predict
performance when underlying cognitive traits are accounted for.76
In response to the Covid-19 pandemic, many public schools closed for
long periods, and others remained open but with mask requirements. Data
shows that “learning loss” from school closures hit poor and minority
students the hardest.77 Yet this has not created any issues surrounding
disparate impact. Meanwhile, the Biden Justice Department has gone after
state bans on mask mandates on the grounds that they might create special
dangers for disabled students and deny them a right to an education.78
What can explain such inconsistencies? It would be naive to attribute
them to any neutral interpretation of the law. Someone who carefully read
reports on the current state of the law but was unfamiliar with what
positions conservatives and liberals took on Covid-19 would not have
guessed that civil rights law would consider bans on mask mandates, but
not school closures, as potential violations. Meanwhile, someone who knew
nothing of the law but was a close observer of American politics would
have been able to predict exactly what happened. Had conservatives been
the ones more in favor of preventative measures against Covid-19, civil
rights law, overwhelmingly applied and interpreted by liberals, would likely
have considered mask mandates and school closures problematic for their
disproportionately negative effects on the educational and social
development of minority children.
Under the standards of disparate impact and anti-harassment, the EEOC
has gone after private businesses for using criminal background checks;
word-of-mouth hiring; and enforcing different dress codes for male and
female cocktail servers.79 The most absurd prosecutions do occasionally get
thrown out if they get to court, but challenging a government agency or
defending a practice is an expensive and time-consuming endeavor for what
is usually an uncertain result, and most employers would rather fold on the
issue in question or, if necessary, find a new line of work. Settlements are
often cheaper than fighting a charge in court; hence most prosecutions do
not make it that far. Similarly, the OFCCP and other agencies applying the
policies it has created are tasked with regulating contractors that are trying
to create or maintain profitable relationships with the government while
avoiding litigation.
If it seems that our culture has built an elaborate ranking system of
races, genders, and “traumas,” it is because our legal system did it first.
Affirmative action in contracting, disparate impact standards,
harassment law, and Title IX social engineering are the four main
mechanisms of civil rights law that have had the most far-reaching effects
on American institutions. But the anti-discrimination principle is found
elsewhere, and has expanded beyond issues of race and sex. Protecting
“voting rights” has come to mean not treating individuals the same but
banning any practice that has the effect of causing fewer non-whites to vote,
and even drawing districts in ways that “dilute” minority voting power, thus
legitimizing the idea that democracy itself should be a racial spoils
system.80 The federal government and certain states and localities have
minority set-asides in contracting. The disparate impact doctrine has been
used to go after so-called housing discrimination, with predictable effects
on free speech and civil liberties.81 Real estate agents are often told not to
mention the quality of schools or the crime rate in an area lest they signal a
racist preference, and even terms like “great view” and “walk-up” have
been cited as potentially trying to exclude blind people and those in
wheelchairs.82
In the years since the Americans with Disabilities Act (ADA) of 1990
came into effect, the EEOC has come to focus more on accusations of
discrimination against those with medical conditions. Congress has also
made age discrimination illegal, first in employment in 1967 and then, in
1975, in programs receiving government assistance. Crusades against age
and disability discrimination have many of the same problems as those that
target differential treatment based on race and sex—they have led to costly
litigation, a decline in individual and institutional freedom, and absurd
interpretations grounded in the disparate impact doctrine. Brains naturally
deteriorate as they get older, meaning that the principle that one should not
discriminate against the elderly is at war with the principle of merit,
particularly in fields that rely on higher levels of cognitive performance. It
is therefore unsurprising that tech companies like IBM, Oracle, and Google
have been legally targeted in recent years.83 A common charge against
corporations is that they prefer young employees because they are cheaper,
which is a strange thing for the legal system to concern itself with, given
that there is widespread recognition of increasing generational wealth
inequalities that advantage older Americans.
Age is at least easy enough to define; what counts as a “disability” is
constantly in dispute, particularly when it comes to psychological
conditions without clear physiological markers. An entire area of law has
developed, for instance, focusing on issues such as when and under what
conditions employers must accommodate alcoholism. Questions in this
regard include what separates an individual who drinks too much from one
who has a “disease” that makes him eligible for civil rights protections and
at the same time more difficult to fire.84
In 1992, about 1 percent of EEOC charges, meaning formal accusations
brought to its attention, were for discrimination based on disability. By
2021, that had risen to 37 percent.85 The Americans with Disabilities Act
adds yet another cost to doing business. It increases the power of social
engineers within the federal bureaucracy to decide questions that should, in
a free society, be dealt with by individuals and private institutions. As
Justice Antonin Scalia pointed out in a biting 2001 dissent in a case in
which a professional golfer successfully sued the PGA because it would not
accommodate his need for a cart during the game, “It has been rendered the
solemn duty of the Supreme Court of the United States, laid upon it by
Congress in pursuance of the Federal Government’s power ‘[t]o regulate
Commerce with foreign Nations, and among the several States,’ U. S.
Const., Art. I, § 8, cl. 3, to decide What Is Golf.”86
Finally, there is Section 1981, which was part of the Civil Rights Act of
7. It guaranteed the ability to make and enforce contracts without being
discriminated against based on race. In 1968 the Supreme Court decided
that this provision banned discrimination in the sale or rental of property.87
The fact that it took a century for the law to be thus applied is an indication
that this may have been another instance of the Warren Court straying from
the original meaning of a statute to achieve its political objective. Section
1981 has been used in the employment context, being less expansive than
Title VII in only applying to racial discrimination and requiring intent,
which precludes any disparate impact cases. At the same time, it has no
caps on punitive damages and a longer statute of limitations. Overall, it has
proved less influential than Title VII, although by providing potential
windfalls to successful plaintiffs it likely does distort workplace
environments and the hiring process.
Volumes on how the American government regulates and constructs
identity are waiting to be composed. Nonetheless, the four doctrines
highlighted in this chapter are those most responsible for what we can call
wokeness—defined by its obsessions with race and sex—being embedded
in law. There is perhaps a book to be written about the contribution of the
Americans with Disabilities Act to our growing mental health problems, or
how laws against age discrimination contribute to generational inequality
and technological stagnation. One hopes that the arguments made here,
against unaccountable government power used for purposes of social
engineering and stamping out supposed discrimination, can be applied more
broadly to a wider range of political issues.
Although no court or bureaucrat would put it in such terms, the practical
consequence of civil rights law is to create the most blatant double
standards based on whether one belongs to a protected or unprotected class.
For those in a protected class, all speech and conduct of employers will be
examined for the possibility that it creates unintentional bias. For those who
are unprotected, explicit discrimination—as long as it’s not too explicit in
the form of, for example, official quotas—is not only allowed but required.
Moreover, while free speech exists in theory under civil rights law, in
practice it often does not, as human resources offices clamp down on ideas,
jokes, and opinions that bureaucrats and judges may find offensive because
no individual controls the patterns of behavior within any particular
institution.
The distinctions between wokeness as culture and wokeness as law
begin to break down when we think about the interaction between the two.
An American employer is a private actor but also someone whose ideas
about his role in society and professional obligations are shaped by the
government regulations he lives under. A bureaucrat in the OFCCP is a
government agent but also an active participant in shaping the cultures of
corporations. Drawing the line between law and culture becomes even more
difficult when we consider the bureaucracies that have grown within private
institutions in response to civil rights law. A Title IX coordinator who
believes that the United States is a white supremacist patriarchy is not only
a symbol of the ideological extremism of the American university but a
product of federal regulations.
Two of the central tenets of wokeness identified in the first chapter—
disparities are caused by discrimination, and speech must be restricted to
help overcome those disparities—are not listed as official state doctrine in
any legal textbook. In practice, for over half a century, employers and
educational establishments have been forced to act as if they are. The third
pillar of wokeness, that is, the new bureaucratic class that has risen in order
to enforce the doctrines of the faith, is the subject of the next chapter.
Chapter 3
The Standardization of the American Workplace and
University
When most people think about what types of people are affiliated with
universities, they usually think of professors and students. That impression
is dated, as higher education has been taken over by professional managers
who neither teach nor do research. Yale currently has about as many
administrators and managers as it does students.1 Many new employees
have job titles that did not exist only a few decades before. As of 2020,
Ohio State University employed 132 administrators with “diversity” or
“equity” in their job titles at the cost of $13.4 million.2
What has happened in academia has only been an extreme example of a
more general bureaucratization of American life. It was not always like this.
In November 1971, Columbia University president William J. McGill wrote
an open letter in which he lamented that, due to affirmative action
regulations, “We are no longer in all respects an independent private
university.”3 The Department of Health, Education, and Welfare was
threatening to cut off federal funding unless the university provided
employment data based on race and sex and timetables for hiring
minorities. President McGill wrote that Columbia had a decentralized form
of administration, in which individual departments were allowed to act
independently. The university simply did not have the administrative
capabilities to comply with new mandates coming from Washington, which
required painstaking record keeping to prove that the institution was not
discriminating against women and minorities. President McGill pointed out
that bureaucratic bloat “will add to our burdens and our costs but we have
been told that if we wish to continue to have federal resources, that is what
we must do. Accordingly, we must do it.”
Decades later, universities were once again struggling with the federal
government, this time over its micromanaging of athletics under Title IX. At
one point the president of Brown University asked how was it that schools
were “free to cut libraries and academic departments, but not athletics.”4
Eventually, after losing in a series of court cases in the 1990s, as with
affirmative action decades before, higher education came to identify with
and support the costly regulations it once rallied against. Though
universities today represent the ideological extreme, they were not always
this way, and one should understand their transformation over time as a
product of government intervention.
In the case of higher education, we can most easily trace the rise of
bureaucracy to civil rights law. Yet colleges and universities have simply
moved in step with trends that have also affected American business since
the 1960s, and the underlying mechanisms at work appear to be the same.
Civil rights law has led to an expansive human resources industry in the
private and public sectors for three reasons. First, the law is vague: while it
requires soft quotas and speech restrictions to a certain degree, an employer
can never be sure just which aspects of hiring, promotion, and firing must
take into account race, sex, and other protected identities, and precisely
how; exactly which speech is banned; and what a firm’s obligations are in
monitoring workers and enforcing speech codes.
None of this would matter all that much if civil rights law wasn’t also
self-financing, the second reason for the existence of a robust human
resources industry. Unlike in other areas of law, successful litigants can get
attorney’s fees for lawsuits. The practice of awarding punitive damages,
codified in the CRA of 1991, has further contributed to an incentive
problem in which employers face penalties for running afoul of the law that
are disproportionate to the tangible harms caused.
Finally, there is the “best practices” doctrine, through which an
institution can defend itself by showing that it is behaving in accordance
with industry norms. Employers must pay attention not only to what judges
and bureaucrats think but to the things that other corporations are doing to
address discrimination. This creates an arms race, which helps explain why
practices that once seemed absurd can become common.
Figure 3.1 shows the number of individuals working in human resources
in the United States by year, excluding military employment:
Figure 3.1.
Number of Americans working in human resources, 1968–2021 (non-military). (Sources:
Current Population Survey from IPUMS-CPS, University of Minnesota, www.ipums.org;
FRED, https://fred.stlouisfed.org/series/LNU01000000.)
In the 1950s, human resources as a job category barely existed; fewer
than 100,000 people were employed in any particular year.5 By 1968, the
number had risen to 140,000. It reached over 1.5 million in 2021. Because
overall numbers may give a misleading picture due to population growth,
Figure 3.2 shows the percentage of the workforce employed in human
resources by year, from 1968 to 2021, overall and broken down by sex.
Figure 3.2
Human resources as a percentage of the entire workforce, 1968–2021. (Source: Current
Population Survey from IPUMS-CPS, University of Minnesota, www.ipums.org.)
The results show the creation of an entire industry. In 1968, only 1 in
558 American workers were employed in human resources. By 2021, that
number had risen to 1 in 102, including 1 in 184 men and 1 in 68 women. In
his 1941 book The Managerial Revolution, James Burnham argued that the
world was witnessing a shift from a system where capitalists comprised the
ruling class to one in which they were being replaced by a managerial elite
that controlled the means of production.
Yet while the rise of some kind of managerial elite was perhaps
inevitable due to increasing technological and economic complexity, there
was nothing inevitable about a portion of this class taking on social
engineering as a career. This was a unique result of the characteristics of the
American civil rights regime. Has this improved business efficiency and
ameliorated problems inherent in having different kinds of people work
together? Many in the human resources sector would certainly say so, but if
they are correct, it raises the question of why the civil rights regime has
been needed in the first place.
Civil Rights Law Is Vague
Imagine a father with two small children trying to get the son to stop
teasing and upsetting the daughter. The father might say, “Stop being mean
to your sister.” The son may well ask, “What does it mean to be mean to
her?” At this point, the father can take one of two paths. He can give a list
of dos and don’ts—don’t yell at her, share a toy if she asks for it, and
include her in any games you play with your friends. The other path he can
take is to replace one vague standard with another. In response to the
question of what it means to be mean, the father might say, “Do not take
any action that will make your sister feel uncomfortable or create a burden
substantial enough to interfere with her full enjoyment of playtime.”
Three effects here are worthy of note. First, the son still faces
uncertainty in how to behave. Arguably, the definition of “being mean” is
more confusing than the original phrase itself, not least because the father is
using words that the son might not understand. If the father simply said
“don’t be mean,” he and the son would quibble over the meaning of one
word. By trying to be more specific about what it means to be “mean,” one
now can quibble over several phrases, like “substantial” and “full
enjoyment of playtime.” The father has pretended to provide a more exact
standard, while if anything doing the opposite.
The second effect of the father’s approach is that the son is on notice
that the rules can change at any moment. What does not make his sister
uncomfortable today might do so as she grows a bit older. Finally, the father
has sent a signal that he has a broad interpretation of what it means to be
mean. The son does not have exact guidance on how to behave, but he now
at least knows that anything he does is potentially objectionable. The option
of mostly forgetting about his sister and simply not going out of his way to
make her feel bad is off the table. If he’s going to listen to his father, he
needs to incorporate her interests and feelings into most of what he does.
There’s a reason we don’t raise children like this. But vagueness
wrapped in jargon is the great trick of civil rights law. This is particularly
true with regard to the concept of harassment. Judges and bureaucrats could
have had a standard that said “don’t do anything racist or sexist.” That
would be an arbitrary standard, but adding more words has the effect of
only making the rule look more exact and precise, while in effect doing no
such thing. Not to “discriminate” under Title VII now means not to engage
in sexual harassment, which in the words of the Supreme Court means
avoiding conduct that is “sufficiently severe or pervasive ‘to alter the
conditions of [the victim’s] employment and create an abusive working
environment.’”6
Civil rights law “clarifies” what statutes mean with words that are at
least as vague as the original definition, with the added problem that they
refer to concepts that are too complicated for most people to understand
without specialized training. But what such standards do make clear is that
there are few limits on what practices, speech, or actions a court or
bureaucrat might find objectionable. In the end, the father giving his son
guidance in our example is saying, “I’ll know it when I see it.” The
practitioners of civil rights law have done the same thing: those with an
interest in and ideological commitment to applying the broadest possible
definitions of terms like “discrimination” set the rules for the rest of us.
The “pervasiveness” requirement naturally leads to the adoption of zero
tolerance policies in corporate America. The law is clear that “isolated”
statements or actions cannot give rise to a cause of action, but there is no
way for an employer to adopt a rule that says dirty jokes are only allowed if
the total number of dirty jokes stays below some undefined threshold. The
EEOC therefore naturally tells businesses to “avoid race-based or culturally
offensive humor or pranks. When in doubt, leave it outside the workplace.”7
Is vagueness an inevitable feature of modern law? Perhaps to a certain
extent, as no legislation can give exact guidance for every possible
situation, and this is the reason we have lawyers, judges, and bureaucrats in
the first place. Yet a comparative perspective shows the extent to which the
American system is unique in the vagueness of its legislative guidance. The
idea that the powers of the federal government are limited is a fundamental
principle of American law, but applying that principle can lead to some
counterintuitive results. In their 1998 paper “The Strength of a Weak State:
The Rights Revolution and the Rise of Human Resources Management
Divisions,” the sociologists Frank Dobbin and John Sutton show how
across various areas of law, the American government regulates in an
indirect way, which paradoxically leads to more bureaucracy.8 A
traditionally “strong” state can issue mandates that are clear, do not undergo
transformations over time through judicial and bureaucratic procedures, are
enforced through one part of the national government, and are of
uncontested legitimacy. The government of France is held up as an example
of a strong state, one that has been able to create a quota for hiring
handicapped employees and has laws regarding employment that are stable
and enforced exclusively through the Ministry of Labor.
In contrast, the American state is “weak.” It does not mandate quotas; in
fact, it explicitly bans them. Instead, government contractors have “goals”
and “timetables” they set themselves, and all large employers must be on
the lookout for “disparate impact” in a world where everything has a
disparate impact. Enforcement is also highly decentralized. In the private
sector, an employer may face negative consequences through a lawsuit filed
by a private party, an investigation through the EEOC, or, if they have a
federal contract, via the Department of Labor or the agency that the firm is
directly dealing with. Firms may also face pressures at the state or local
level. Public institutions such as schools similarly can face individual
lawsuits or investigations and threats that funding from Washington will be
cut off.
A Self-Financing System
Decades-old federal statutes create massive penalties for violations of civil
rights law, giving them a unique role in our legal system. Although
Congress has regularly passed statutes since the 1960s designed to provoke
private lawsuits that will help enforce federal regulatory policy, a series of
laws and court decisions have stacked the deck in favor of plaintiffs in this
particular area.9
Under the “American Rule” that is the default in civil cases, each side in
a lawsuit pays for its own legal representation regardless of who wins. The
Civil Rights Act of 1964, however, in Section 706(k), says that in a Title
VII suit, “the court, in its discretion, may allow the prevailing party, other
than the [EEOC] or the United States, a reasonable attorney’s fee.”10
Congress later passed the Civil Rights Attorney’s Fees Award Act of 1976,
which applied the same rule to practically all other kinds of civil rights
cases, including Title VI and Title IX.11
The deal struck in 1964 as written could have had the effect of both
allowing indigent plaintiffs to find legal representation and deterring
frivolous lawsuits. Nonetheless, the Supreme Court, in Christiansburg
Garment Co. v. EEOC (1978), interpreted Section 706(k) to mean that the
default rule under Title VII was that successful plaintiffs should get
attorney’s fees and successful defendants could not, unless there were
unusual circumstances. As with Griggs and other cases, a carefully
constructed legislative bargain designed to balance a trade-off between
combating anti-discrimination and other concerns was thrown out in favor
of more aggressive enforcement.
Some countries have a “loser pays” system as the default, and the Civil
Rights Act appeared to follow their lead in this area of the law. Due to
Christiansburg, however, we now have an asymmetry in which plaintiffs
have a right to recover attorney’s fees if they win, but defendants must
swallow the costs of defending themselves even when courts have
determined they have done nothing wrong. The important Ninth Circuit has
gone even further than that. In Skaff v. Meridien North Am. Beverly Hills,
LLC (2007), a disabled man sued a hotel for lack of accessibility. Even
though the two sides reached a settlement, the appellate court ruled that the
plaintiff could still pursue legal fees under the Americans with Disabilities
Act and California law. In the end, the plaintiff, who had before filed
twenty-one similar cases in California, was awarded $15,000 in the
settlement, but his lawyer sought $118,000 from the hotel for working on
the case.
The CRA of 1991 explicitly allows for punitive damages under both
Title VII and the Americans with Disabilities Act, which is, like the
allowance of attorney’s fees, extremely rare for any area of law.12 That is,
plaintiffs are allowed to receive money beyond what is necessary to
reasonably compensate them for any harm they have suffered. In addition to
certainty, a key part of a well-functioning legal system is proportionality.
For this reason, many countries—for instance, Germany and Japan—do not
award punitive damages at all. They are usually found in common law
countries, however, such as the UK and Australia. In the United States,
punitive damages in most areas of law are usually determined on a state-by-
state basis, while under civil rights law a right to receive such damages
exists under a federal statute.
This has led to outrageous results, with lawyers and plaintiffs receiving
windfalls for conduct that is radically disproportionate to any harm
suffered. While the Civil Rights Act of 1991 caps punitive and
nonpecuniary damages at $300,000 per individual for major companies, the
judiciary’s acceptance of class action lawsuits in civil rights cases—once
again, contravening legislative intent—in effect turned what had been an
individual right not to be discriminated against into a group right. This
created massive potential liability.13
Title VII cases are often tried in the media, where the slightest hint of
racism could potentially bring plaintiffs out of the woodwork and destroy
the reputation of a company before a lawsuit even gets to trial. The deeper
the pockets of an institution, the more likely it is to be targeted. A January
2019 report revealed that 99 percent of Fortune 500 companies had made
payments to at least one plaintiff in a harassment or discrimination lawsuit
since 2000.14 As of 2019, the companies that have paid the most in
disclosed settlements are Bank of America ($210 million), Coca-Cola ($200
million), Novartis ($183 million), Morgan Stanley ($150 million), and
Abercrombie & Fitch ($90 million). The fact that nearly every Fortune 500
company has been targeted indicates that this is not a matter of a few bad
actors. Rather, courts will inevitably find instances of discrimination no
matter what is happening, given the nature of harassment law and the
disparate impact doctrine.
A 2021 verdict shows how conduct that should be settled by private
parties—or at most result in compensatory damages—can lead to crushing
penalties for a corporation. In 2015 and 2016, a black father and son named
Owen Diaz and Demetric Di-az [sic] worked at a Tesla plant. They sued the
company for racial discrimination, with the father’s claims alone making it
to trial.15 The case was based on California state law and Section 1981.
Racial slurs were used in the presence of Diaz, and he saw racist graffiti on
a bathroom wall. It appears that the workers allegedly responsible were
mostly or all minorities themselves, and each time an allegation could be
verified, the employee was punished.
Tesla claimed that they had taken enough steps to address the concerns
of Diaz, and also that he was a temp worker and not their employee, so the
company was not responsible for protecting him from discrimination
anyway. A jury disagreed, and awarded the plaintiff $137 million, an
amount that the judge reduced to $15 million.16 In response to the verdict,
Tesla released a statement pointing out that witnesses confirmed that the
slurs were used in a friendly manner, usually by African American
employees, and without hostile intent. Questions such as whether there can
be such a thing as the friendly use of racial slurs and the parameters of what
kind of flirtation is acceptable were once settled by private parties. Now
they are matters of federal law.
Suits that end with such a large payoff to one individual are rare, but the
aggregate effect of civil rights law is to fund a certain kind of legal and
political activism that depends on the belief that racism and sexism are
pervasive factors in American life. While Bank of America, for example,
has paid hundreds of millions of dollars over the last two decades in settling
civil rights cases, such costs are easily absorbable by a corporation that
makes billions in net income each quarter. The problem, again, is that the
machine is self-financing, and it has become normal practice for
corporations, as part of their settlements, to take on new responsibilities and
funnel money to civil rights lawyers and activists.
In July 2020 the Department of Justice reached a settlement with Bank
of America over its old policy of refusing loans to adults under legal
guardianships or conservatorships as a violation of the Fair Housing Act.17
The DOJ estimated that the bank would need to pay $300,000 in total to
victims, but the settlement also “requires the Bank to maintain the new,
non-discriminatory loan underwriting policies,” “train its employees on the
new policies,” and “monitor its loan processing and underwriting activities
to ensure compliance with the Fair Housing Act.” No cost estimates are
given for such activities, but they are a normal part of civil rights
settlements.
A study of all class action settlements in the federal courts between
2006 and 2007 found that while 89 percent of all class actions resulted in
cash relief, and less than a quarter included declaratory or injunctive relief,
for civil rights class action settlements, the numbers were 49 percent and 75
percent.18 In other words, compared to other types of legal settlements in
class action cases, civil rights defendants are more likely to be required to
take on indirect burdens. An analysis from 1980 found that OFCCP
regulations had increased the labor and capital costs of federal contractors
by 6.5 percent, which according to a 1993 estimate from Forbes magazine
would amount to 1.7 percent of GNP.19 This does not even include the costs
of EEOC compliance.
Moreover, the money that is paid in lawsuits and settlements, while
being small in terms of how much profit large corporations make, can be
enough to keep the civil rights industry going. When Coca-Cola agreed to a
$192 million settlement in 2000 over allegations of discriminating against
black employees, $20 million of that went to legal fees.20 The company was
also required to appoint a seven-member task force to supervise its human
resource and hiring practices for four years. Under the Obama
administration, it was normal practice for the Justice Department to reach
settlements with corporations that required them to pay money to left-wing
activist groups, therefore providing funding to the administration’s political
allies without having to go through Congress.21 Civil rights law implements
a relatively small tax on corporations that has a massive effect in terms of
creating an entire industry of lawyers, activists, and human resources
professionals.
Due to both legal rules set up in this area and the wide range of
individuals who can potentially be plaintiffs, the crusade against
“discrimination” is more profitable than seeking to correct other supposed
injustices. President Calvin Coolidge famously said that “the chief business
of the American people is business.” Today, one might say that the main
business of the federal courts is social engineering. If an individual believes
they have a claim against an employer, they can file a case with the
EEOC.22 After 180 days or after the EEOC has completed its investigation,
the individual can ask for a Notice of Right to Sue regardless of whether the
agency found reasonable cause.
In the mid-1970s, there were only about five thousand EEOC charges of
discrimination a year. By 2010, there were close to one hundred thousand, a
number that has dropped to around sixty to seventy thousand in the last few
years.23 In other words, as the US population increased by about half, we
saw a twentyfold increase in discrimination complaints. In 2020, there were
about 1.5 million businesses in the US with at least fifteen or more
employees, the threshold to be covered under Title VII of the Civil Rights
Act and the ADA. With sixty-seven thousand charges filed, that is about one
for every twenty-two businesses each year. It is important to note that one
individual can file more than one charge against the same firm, and, because
civil rights law is a business, the risks to large employers are surely higher
than for small ones. Nonetheless, any business of sufficient size faces a
substantial risk of an EEOC complaint being filed against it each year, with
the odds being a near certainty for the biggest employers with the largest
number of workers over a long enough period. Even if many of these claims
are legitimate, one has to wonder whether allowing freedom of association
is not preferable to practically making the federal government the human
resources department of all large firms.
Figure 3.3 shows the number of civil rights civil cases filed in federal
court, both in total and as a percentage of all civil lawsuits, from 1967 to
2020.24 This includes those that require filing a charge with the EEOC first
and those that do not.
We see a massive increase, going from a few thousand a year before
1970 to a high of over 43,000 in 2019. From the early 1990s up to 2019,
civil rights cases represented between 10 and 16 percent of all civil cases
filed in federal court.
Figure 3.3
Civil rights civil cases filed in district court, and percentage of all civil cases that are civil
rights cases, 1967–2020.
The number of cases had plateaued until the Americans with Disabilities
Act of 1990 and the Civil Rights Act of 1991, the latter of which made
changes related to the burden of proof in discrimination cases and, as
mentioned before, created punitive damages under Title VII. A look at
charges filed with the EEOC tells a similar story. In the final quarter of
1991, harassment charges made to the commission were up 71 percent from
the same period the year before, and those numbers would continue to
climb over the next twenty years.25 As the civil rights industry appeared to
begin reaching the limits of its expansion, perhaps due to the priorities of
the Reagan administration, the Americans with Disabilities Act and the
Civil Rights Act of 1991 breathed new life into it.
Figure 3.4 shows employment lawsuits filed from 1970 to 2020, and
ADA cases beginning in 2006, when the federal government began to count
them, up until 2020.
Figure 3.4
We see the same pattern in civil rights employment cases that we see in
all civil rights cases. The number increased sharply after the EEOA of 1972,
then plateaued in the 1980s, before taking off again in the 1990s. The effect
of the ADA seems to have been delayed, only exploding in the late 2000s.
Although we have no data on such cases pre-2006, it appears that there
were very few ADA suits before that year. George W. Bush then signed the
plaintiff-friendly ADA Amendments Act of 2008, after which we saw a
precipitous rise.
It is more difficult to explain the drop in civil rights employment cases
after the late 1990s, but one might consider the possibility that, because
caps on punitive damages for employment claims have stayed constant,
while dropping in real terms due to inflation, lawsuits in this area are all the
time becoming less potentially lucrative.26 Moreover, given that the supply
of civil rights lawyers cannot rise in direct proportion to the number of
opportunities created by federal law—due to the relative stability of the
number of graduating law students each year—the decline in civil rights
employment cases seen in Figure 3.4 may be related to the rise of non-
employment ADA suits. Note that the percentage of all civil cases that are
civil rights cases, as shown in Figure 3.3, remained stable between the rise
in the 1990s and 2019, only dropping during the Covid-19 pandemic. The
legal regime under which firms operate clearly has an impact on how often
they get sued and on what grounds.
Civil rights organizations stumbled onto the strategy of enforcing anti-
discrimination laws through private actors working through the courts.
While originally in 1964 they had prioritized giving strong enforcement
power to the EEOC, liberals in later decades came to see relying on private
attorneys and their clients as a way to get around occasional hostility to
their preferred policies in the executive branch.27 Civil rights law is now a
pillar of the identity left, as it funds a plaintiffs’ bar that profits from
imposing costs on alleged violators, in addition to liberal organizations
more generally.
The fact that around 10–20 percent of all civil cases filed in federal
court in recent years relate to discrimination of some kind should lead even
those unconcerned with the implications for economic growth or freedom
of association to realize that society might be overinvesting in fighting this
particular harm. Of all the issues our legal system could be addressing, it is
interesting that so much effort and attention is now directed at a kind of
private cause of action that was not even recognized as part of the legal
system until recent decades. Not that long ago, a fundamental principle of
Anglo-American legal thought was that the remedy to discrimination
practiced by a private party was to take one’s business or labor elsewhere.
That is still the default when an individual is wronged in a noncriminal
manner on any basis other than some “protected” status. While centuries of
mistreatment of black Americans have been used to justify a more activist
government that now has powers that go beyond historical limits, the anti-
discrimination principle has expanded to create two kinds of private ill-
treatment based on a myriad of different kinds of identity, without anyone
giving much thought as to why this should have been done.
The “Best Practices” Doctrine
Game theorists have shown how rational actors can make decisions that,
while sensible for individuals, make everyone worse off. For example, if
nations have no way to verify how much other states are investing in their
military, one can easily end up with an arms race that no one wants. No
matter what the other side is doing, each country can have an incentive to
spend more to keep up with potential adversaries, even if everyone would
be better off if they all disarmed instead. Civil rights law, through its
vagueness, works in a similar way. Each corporation has an incentive to
seem “less discriminatory” than others, which in effect means adopting fads
out of academia or the HR industry and having to engage in ever more
blatant forms of reverse discrimination.
The “best practices” approach has been indirectly endorsed by the
judiciary. In two cases decided in 1998, the Supreme Court created an
affirmative defense for sexual harassment claims, based on an employer
exercising “reasonable care to prevent and correct promptly” any offending
conduct and an employee unreasonably failing to use available
opportunities to address the problem. As a result, lawyers and HR
professionals explicitly tell businesses that having a bureaucratized
complaint process can protect them from lawsuits. While the Supreme
Court has said that an anti-harassment policy is not needed in every case,
courts are virtually unanimous in finding that not having one precludes an
affirmative defense to harassment.28 That is not to say that an anti-
harassment policy is sufficient to beat back a discrimination claim. Courts
have looked favorably on additional steps that can be taken, including anti-
harassment training and reprimanding supposed harassers and separating
them from their alleged victims.29 Under such circumstances, HR and DEI
professionals have been able to sell their services as a good business
investment, and can reasonably tell firms that they might be in trouble if
they don’t do at least as much as other employers to prevent harassment.
This natural tendency of civil rights law to devolve into a “woke arms
race” has been given official sanction by the OFCCP and the EEOC, which
are often ready to go as far as the judiciary will allow them to. The OFCCP
explicitly issues regulations based on the “best practices” of leading firms.30
As of late 2021, it advises government contractors to set up outreach
programs with Historically Black Colleges and Universities, have a social
media presence, develop relationships with race-conscious organizations,
and “encourage the creation of forum groups, e.g. African-American,
Hispanic, AAPI, and conduct meetings with each group to discuss
recruitment, outreach, mentoring, diversity, inclusion, and development
programs.”31
While these are not official mandates, the government has made clear
that adopting the conservative belief in race-blindness makes an institution
legally suspect. The EEOC similarly calls for “regular, interactive training
tailored to the audience and the organization.”32 Nonetheless, it says that no
body of regulation can cover every conceivable circumstance. This means
that “at best, ‘best practices’ are best guesses.”33 In order to guide them,
employers have come to rely on the HR profession due to its supposed
expertise in such matters, or at least its ability to make courts and regulators
think that a firm takes discrimination seriously.
A clear example of a principle that sounds good to outsiders but creates
difficulties in practice is that of non-retaliation.34 Under Title VII, an
employer cannot punish a worker for filing a discrimination complaint. As
of 2019, the majority of charges filed with the EEOC had a retaliation
component.35 An easy and natural way to deal with a difficult personnel
situation is to separate the parties who are having a dispute. Yet if that is
perceived as “retaliation” in any way—even if the original accusation itself
lacks merit—the employer may be guilty of committing a Title VII
violation. Thus employers must take all accusations of discrimination
seriously, no matter how frivolous. If the firm decides to separate the two
individuals having a dispute by, for example, moving one of them to a
different department, or even firing one of the parties, it better be the
alleged perpetrator.
Civil rights law creates protection for an employee against suffering
retaliation for making an accusation of discrimination, but no protection for
those falsely accused. This provides yet another example of how granting
rights to a “protected” individual often involves violating those of one who
is “unprotected.” Employers, however, are usually more concerned with
making money and preventing lawsuits than acting in accordance with
idealized standards of justice, so they comply with what are unofficial
mandates given the current state of the law. Completely innocent parties
might be fired, if only to remedy difficult situations, and this is true even if
an employer knows that an allegation being made would not hold up in
court.
The growth of the diversity industry in the 1980s and 1990s coincided
with political pushback to affirmative action. When put in the difficult
position of being required to discriminate against white men by federal law
while also—because the law maintains the pretense of protecting all groups
equally—facing the possibility of reverse discrimination lawsuits, corporate
America retreated into euphemisms and obfuscation. The diversity industry
was self-consciously an outgrowth of the affirmative action industry,
originally created to ensure compliance with federal mandates.36 Courts and
federal bureaucrats are rarely good social scientists, so practices become
common without any evidence that they necessarily work.
As the sociologist Musa al-Gharbi has shown, corporations have
adopted programs without any reason to think that they might improve their
stated goals of achieving diversity and inclusion, and sometimes even in
spite of evidence that they may backfire.37 For example, the Implicit
Association Test remains popular despite serious doubts about its validity,
while diversity training can demoralize members of a minority group and
increase biased behavior.38 Given the haphazard ways in which civil rights
law relies on vague standards and decisions made by government agents
without a direct stake in the real world results of any intervention, it is easy
to see why there is often an uncertain, weak, or even negative relationship
between efforts made and the results that actors in the system purport to
care about.
Even in the absence of government mandates, employers have a natural
incentive to provide an environment in which workers achieve maximum
productivity. This involves managing different personalities, and conflicts
that may arise due to discriminatory treatment or unwanted sexual
advances. The diversity industry has sold its services as necessary for
improving efficiency. If they are right, there is no reason for the law to take
an interest in personnel matters; the government usually doesn’t have to
force businesses to do things that are in their own financial interest. Civil
rights law, however, has not caused employers to be more inclined to
successfully manage interpersonal relations based on real world signals
regarding what works. Instead, they are encouraged to find ways to
convince bureaucrats, and potentially judges and juries, that they are good
people who take discrimination seriously. Those are not the same thing.
“Woke capital,” which often refers to corporations taking left-wing stances
on identity-related issues, is a natural response to a system that rewards this
kind of virtue signaling.
It is difficult to exaggerate how ill-equipped lawyers, courts, and
government administrators are to judge what makes for effective personnel
management. The replication crisis in psychology has shown how
challenging it is even for social scientists who dedicate their lives to
understanding social phenomena to arrive at well-founded conclusions
about the topics they study, particularly when it comes to shaping human
behavior. In contrast to mandates coming from courts and bureaucrats, labor
markets can give real-time feedback about what creates the best workplace
environment. Employers are not necessarily good social scientists either,
but they at least have the right incentives to figure things out and are
directly familiar with what is happening in their own workplaces. It is
unsurprising that government monitoring of the decisions they make has led
to a proliferation of expensive, wasteful, and in some cases
counterproductive practices.
Bureaucratic Bloat and Institutional Homogenization
The legal system has created vague rules covering practically all aspects of
human interaction, making it profitable to bring suits alleging
discriminatory treatment and very expensive for institutions to fall on the
wrong side of the law. Even if the direct costs of lawsuits and settlement are
manageable for major firms, the legal and bureaucratic structures that have
been built based on civil rights law can cost a great deal in terms of larger
payrolls, actions taken to avoid bad press that can draw the attention of
bureaucrats and trial lawyers, and less control over hiring and promotions.
The results have been a self-reinforcing system, in which entire business
models in the legal and human resources professions depend on maintaining
vague standards that must be complied with. Private businesses are not
imagining things when they take precautions against lawsuits by restricting
employee speech, enacting diversity and sexual harassment training, and
engaging in explicit—but not too explicit—reverse discrimination. This last
is in order to avoid even the possibility of having been found to
unintentionally discriminate against protected groups.
The overall effect of civil rights law has been a great homogenization of
corporate practice. As of 1970, less than 5 percent of corporations in one
survey had an affirmative action officer, compared to about a quarter by
8. While in 1956, fewer than a third had personnel offices, that number
more than doubled over the next three decades.39 Across that same period,
grievance procedures for non-union employees went from rare to
completely normalized, the practice existing among less than 10 percent of
surveyed employers across most of the 1960s and about half by the middle
of the 1980s.40 The use of job descriptions saw an even more massive jump,
from 22 percent in 1956 to 80 percent in 1985, a rise that was mirrored by
an increase in performance evaluations. Other practices and tools used more
frequently in private employment since the Civil Rights Act include
disciplinary hearings, employment tests, job postings, salary classifications,
job ladders, the centralization of hiring, and promotion and discharge
guidelines.41
This great standardization in employment and hiring came about as
firms sought to safeguard themselves against charges of arbitrary bias. If
one hires and fires based on established rules and procedures that are widely
accepted in an industry, one is less likely to be accused of discrimination.
Everyone adopts similar procedures not because they work to achieve fair
treatment or economic efficiency but because they minimize the risks of
costly lawsuits and government interventions. And firms have come to rely
on the same lawyers and HR professionals for advice on how to run their
businesses.
Civil rights law meanwhile works as a kind of “force multiplier” for
disgruntled employees, enabling them to make certain kinds of complaints,
and allowing them to change institutions from the inside.42 The same
company that might not think twice about disciplining workers for making
unfounded or exaggerated claims about other aspects of its business can
have its hands tied if the allegations being made contain even a hint of a
charge of racism or sexism. As mentioned before, civil rights law bans
“retaliation” against an employee even if the underlying complaint is
ultimately without merit. When Sen. Tom Cotton wrote an article in the
New York Times in the summer of 2020 calling on the military to be sent to
deal with rioters in major American cities, the opinion editor of the paper
eventually resigned after employees waged a campaign against him that
included sending out identical tweets saying that the piece put black staff in
danger.43 Had they claimed a grievance based on some other, “non-
protected” identity, there would not have been the specter of legal liability
for the article, nor would the controversy have invoked the grievance
procedures and norms already established to deal with racial issues.
If a major newspaper being influenced in its staffing and editorial
choices by civil rights law seems too absurd to contemplate, consider that
Felicia Sonmez, a reporter for the Washington Post, sued her employer on
the grounds that it was discriminatory to take her off metoo stories after
she talked about her own alleged sexual assault. Although her suit was
dismissed in 2022, newspapers are no different than other employers in
responding to incentives.44 Sonmez was eventually fired by the Washington
Post in 2022 for weeks of publicly attacking coworkers on Twitter. It is
reasonable to wonder the extent to which the employer’s hesitancy to part
ways with her was based on the incentives created by civil rights law and
their downstream cultural effects.45
Before the 1960s, markets were the system through which American
businesses decided what worked and what didn’t in the realm of hiring,
promotions, and employment. It was imperfect but at least provided some
mechanism for driving improvements in methods, as those making the
decisions were the ones who faced the consequences of their results. The
benefits of fighting discrimination through increased bureaucracy, and they
appear to be slight, must be balanced against the costs of putting a stop to
innovation in personnel management. The genius of capitalism is that one
does not need to make a judgment about any particular business practice but
can remain agnostic about what works and let the market decide. Social
science has proved a poor substitute for market forces, being subject to
fads, politicization, and wishful thinking on the part of those who can afford
to be wrong because they are making decisions about practices in areas
without having a direct stake in the relevant outcomes.
IQ tests are among the most reliable measurements we have in
psychometrics but are of questionable legality. Practices based on junk
science—diversity training, the Myers-Briggs Type Indicator, the Implicit
Association Test—have waxed and waned in popularity.46 Lawyers,
bureaucrats, and judges have been more comfortable with a cargo cult
version of psychometrics than with the real thing, which might reveal
uncomfortable truths about the relative performances of different groups.
The result is a wasteful system that hurts productivity and mostly benefits
human resource professionals, trial lawyers, and the rest of the class that
has a stake in managing compliance with the law rather than achieving
fairness or economic growth. Of course, even though IQ tests do provide a
good measure of ability and are a cost-effective way to judge job applicants,
it is almost certain that mandating them across the board would not be good
government policy, even if it would be better than banning them. No
government is smart enough to know what kinds of practices make sense
for each particular institution. The more discrimination there is against a
particular group, the more advantages there are to hiring members of that
class, which provides one example of how markets are dynamic and
oriented to solving problems in ways that government is not.47
One today needs bureaucracy to manage all aspects of interpersonal
relations, and bureaucracy itself to be managed by more bureaucracy. Hence
the explosion in HR personnel since the 1960s. Bureaucratic bloat has been
bad enough in the private sector. When it comes to government and
educational establishments that are heavily regulated and funded by the
state, the results in many cases have been even more extreme. Between
1951 and 1970, money spent on federal categorical grants—those made to
state and local governments covering everything from schooling to policing
to improving water systems—went from $2.3 billion to $23 billion.48 In
1962, there were only 162 categorical grant programs, a number that
increased to 530 by 1970.
Even as of 1969, there were few strings attached to this kind of funding.
That began to change as a consequence of the ways in which the Nixon and
Ford administrations used Title VI to push for social engineering at the state
and local levels, a use of government power that would have been all but
unthinkable to the members of Congress who voted for the Civil Rights Act.
In July 1994, Attorney General Janet Reno sent a memorandum to all
departments and agencies that provide federal assistance instructing them to
make use of the disparate impact standard to the greatest extent possible, a
directive that represented a break with previous administrations.49
Relying on taxpayers for funding, instead of market forces, government
institutions have little incentive to curtail spending on initiatives and jobs
that do not lead to productivity gains. This is especially apparent in schools.
Data from the Department of Education shows that while the number of K–
12 teachers in the US increased by 8 percent from 2000 to 2017, the number
of administrators increased by 75 percent.50 At the level of higher
education, there has been a steady increase in administrative costs since the
beginning of the civil rights era, a trend that has accelerated in recent
decades. In the 1980s, administrative costs per student increased by 46
percent.51 Even by the early 1990s, leading universities had slightly more
administrators than teachers or researchers, and the gap has widened
since.52 Looking at just full-time staff, between 1993 and 2007 the rate of
new jobs for administrators grew at about four times the rate as for those
working on research, teaching, or providing student services.
While this cannot all be attributed to civil rights law, the historical
record is clear that administrative bloat results from federal money that
comes with strings attached. The federal relations director of the
Association of American Universities once put forward what he called
“administrative clone theory,” in which every new form of federal spending
comes with a new federal office to administer the money, and then “clones”
of the department are created at each university.53 The reason administrators
keep deciding to spend more money on administration is because they can;
given that administrators rather than faculty exercise ultimate control over
budgets, it is spending on their own jobs and privileges that we should
expect to increase.
The growth of the Title IX bureaucracy during the Obama
administration, discussed in the previous chapter, provides a clear example
of the effects of more micro-level regulations. As of 2016, more than two
hundred colleges and universities faced a Title IX investigation by the
federal government over the handling of sexual assault allegations, an
increase from fifty-five two years earlier.54 No statute, of course, ever made
sexual assault the responsibility of university administrators; practically
everywhere else in society it is a concern for police and the courts. But
under the Obama administration, in order to be able to meet newfound
responsibilities placed on them four decades after the original passing of
Title IX, universities started scrambling to hire “lawyers, investigators, case
workers, survivor advocates, peer counselors, workshop leaders and other
officials to deal with increasing numbers of [sexual assault] complaints.”55
At UC Berkeley, Title IX spending increased by about $2 million between
2013 and 2016 alone. Around this time, Yale had thirty faculty and staff
members working on Title IX efforts and Harvard had fifty Title IX
coordinators. In September 2017, the Trump administration withdrew the
Obama-era sexual assault policies, and although there does not appear to be
any data on whether the Title IX bureaucracy is shrinking, there is at least
little evidence that it is still growing.
Division of Labor
Many conservatives have come to see “woke capital” as their enemy, as if
those who spend a large portion of their waking hours selling goods and
services are also prioritizing political activism. Most of the time, however,
business leaders have their hands full simply doing their own jobs. The
division of labor is a key feature of modern economies. As society becomes
more complex, the more specialized the workforce becomes. In the 1950s,
the field of human resources barely existed. Over the next decades, it would
grow into a massive community, today comprising around 1 percent of the
workforce. While many professions do their work out in the open, HR, and
more recently the DEI complex, are working mostly behind the scenes to
shape the rules and regulations that we all live under. If one dislikes modern
architecture, one blames architects. If police brutality is a problem, then
cops are more directly responsible than any other group. Likewise, if one is
angry at the way interpersonal relations are governed in modern society,
blame must first and foremost be attributed to government agencies that
regulate them, along with the spinoff HR and DEI industries that prosper as
a result.
The division of labor is usually a good thing. How a plane is flown
should be determined by the pilot, not through the democratic process, as in
the case of a famous New Yorker cartoon showing the passengers taking a
vote. Yet human relationships are different. Rules and norms regarding
humor, sex, and intergroup relations are rooted in human nature, history,
culture, and the aggregate preferences and decisions of individuals acting in
their own capacities. As long as the power of the state itself is not used to
discriminate against certain groups, such matters should be left to private
parties.
No science or field of expertise has the knowledge or wisdom to
determine how men and women should flirt or which words should be
forbidden in a workplace because they might hurt someone’s feelings. No
matter how well intentioned, once the government opened the door to
concepts such as a “hostile work environment” and “disparate impact,”
there was no natural limit to the reach and power of full-time social
engineers. While this class may see itself as representing the will of the
community, or evolving norms, that is a myth, and the views, sensitivities,
and prejudices of a small minority of the population shape how everyone is
allowed to behave.
Once we understand wokeness in these terms, it focuses the attention of
those who would like to defeat it. Referring to warfare, Frederick the Great
once said, “He who defends everything defends nothing.” One may alter the
quotation and make it no less true: “He who fights everything fights
nothing.” Conservatives have blamed wokeness on entities as diverse as
capitalists, the education system, recently arrived immigrants, financiers,
Hollywood, the United Nations, “globalists,” the mainstream media, the
Muslim Brotherhood, Al-Jazeera, the upper-middle class, and the Chinese
Communist Party. Some of these supposed villains are more deserving of
blame than others. But such a scattershot approach, while it makes for good
TV or talk radio content, provides little to focus or guide a political
movement. Like the general who is given the task of defending everything,
a movement faced with an endless list of powerful oppressors is likely to
either stretch its forces so thin that they are overwhelmed or decide that it is
trying to do the impossible and give up.
While wokeness as a cultural phenomenon does not have a single cause,
the fight against it must narrow its focus. One must ask what a political
movement can realistically do and how it can be most effective. With that
framework in mind, the natural point of attack is civil rights law. In the US,
the government does not have the power to dismantle the human resources
and DEI professions through brute force. What opponents of wokeness can
do, however, is fight broad and vague standards of “discrimination” through
courts, legislatures, and the executive branch and at the federal and state
levels. That also means concentrating on the class that has made it its
specialty to manage human relations. To act otherwise is to get upset at the
state of modern architecture and ignore architects to focus on the critics
who praise their work or the system they are a part of.
While it may be theoretically interesting to take a broader view of the
context in which the architects of wokeness perform their work, in the end a
successful movement puts most of its energy toward fighting the group
directly responsible for the problem it seeks to solve. Seeing wokeness as a
kind of “class warfare” is generally correct, but the class in question is not
capitalists, corporations, rich people, or managers more generally but the
managers of human relations. That implies, first and foremost, going after
rules that make civil rights litigation lucrative to plaintiffs and threatening
to firms, in addition to checking the power of OCR, OFCCP, EEOC, and,
when possible, the HR and DEI industries.
Chapter 4
Government as the Creator of New Races and Genders
In the early to mid-1950s, I Love Lucy was the highest-rated TV show in the
United States. It centered around the life of Ricky Ricardo (Desi Arnaz) and
his wife, Lucy (Lucille Ball). Ricky ran a nightclub, and his heavy Cuban
accent, especially when he became upset at his wife’s hijinks, was a source
of much of the comedy of the show. Despite CBS executives’ fears,
Americans did not think it objectionable that the most popular show in the
country featured what some might have considered an “interracial
marriage.” It was only in Loving v. Virginia, decided in 1967, that the
Supreme Court would invalidate anti-miscegenation laws in the last sixteen
states that still had them. Yet an American public that, in much of the
country at least, supported laws to maintain the purity of the white race
regularly welcomed Lucy and Ricky into their homes without giving the
issue of race much thought.
In this, they were taking the lead of their government. On the 1950
Census, the racial options were “White,” “Negro,” “American Indian,”
“Japanese,” “Chinese,” “Filipino,” and “Other.” As late as the 1960s,
Mexican American activists rejected the idea that they should be labeled
non-white.1 By the 1970s, however, when the federal government was
classifying citizens and then distributing benefits and imposing costs based
on those classifications, they were taking a different position. Rather than
government responding to social realities, social realities were being shaped
by the federal government, which was being lobbied by organizations that
were largely unrepresentative of those they claimed to speak for.
While American classification has pushed some groups out of the
“white” category, others have been welcomed in. My family immigrated to
the United States from the Middle East, and I attended public schools that
had a substantial minority of fellow Arab students. Every so often, usually
when taking a standardized test, we were asked to identify our race. I
remember there once being confusion in junior high over which box Arabs
should check. The teacher looked down at a sheet of paper and, with a hint
of skepticism in her voice, told us that we were white. Most people do not
have deep ideas about race as a biological or anthropological concept and
are willing to defer to government categorization. In high school, I was
once in a computer lab in which a fellow student came across a
demographic survey on a website that asked the respondent for his racial
identification. When someone asked where Arabs were among the options,
the teacher replied that it would be more accurate to say “Arab-speaking.”
Steeped in the public school bureaucracy, he had allowed existing
categories to shape his scientific and social understandings of the concept of
race.
After 9/11, it became clearer than ever that Arabs and Muslims were an
“other” in American culture. The Council on American-Islamic Relations
(CAIR), formed in 1994 on the model of other civil rights organizations,
came to play a more prominent role in American politics. Yet discrimination
against Arabs and Muslims has been treated as a relatively minor political
issue. One rarely hears about the “underrepresentation” of either group in
any particular field, nor does anyone ever discuss their crime rates or
standardized test scores. We do not even know for certain whether Muslims,
or Arabs for that matter, are underrepresented or overrepresented among
prisoners or those of higher or lower socioeconomic status. While some
studies on the topic have been done, the Census does not ask about these
categories, and neither do those who collect arrest data or administer
standardized tests. The data we have is therefore less copious and of lower
quality than numbers pertaining to officially designated “races,” and as a
result, much less relied upon.
In 2020, the “Asian American Pacific Islander” community was said to
be targeted as a result of the coronavirus pandemic. On Twitter,
stopaapihate became a rallying cry for journalists, activists, and
academics. This community was supposedly being represented by an
organization of the same name as the hashtag and affiliated with the Asian
American Studies Department of San Francisco State University. As of this
writing, its website shows a series of faces of people who appear to have no
background in common except for the fact that they are neither black nor
white. The media in recent years has run countless stories about increasing
hate crimes against “AAPIs,” along with numbers about “hate incidents”
that are based on nothing but unverified and subjective reports collected by
activist groups, though relied upon by newspapers like the New York Times
to build a larger narrative.2
A moment’s thought reveals how strange this narrative is. The
coronavirus, as far as we know, began in China, and it is plausible that
Americans of Korean, Japanese, or Vietnamese descent might in the last
few years have suffered discrimination at the hands of bigots too ignorant to
differentiate between these groups. Yet there is no reason to believe that
Americans of Samoan or Indian descent should have seen an uptick in
discrimination as a result of the pandemic. Still, any assaults inflicted on
people of South Asian or Polynesian descent become part of the narrative
about race in America. The Stop AAPI Hate website conveniently lists
Punjabi and Marshallese among the languages in which one can report
“hate incidents.”
Meanwhile, not only is there an official narrative of shared victimhood
among Asian Americans and Pacific Islanders, but elite institutions also
punish them as a collective for their aggregate success. As of this writing, a
lawsuit on behalf of Asian American students accusing Harvard of holding
them to higher admissions standards is before the Supreme Court. As noted
in chapter 2, Ivy League universities, whether in explicit collaboration or
not, by the mid-2010s had an unofficial “soft cap” on Asian enrollment,
although in recent years the number of Asians admitted has risen as more
public attention has turned to the practice.3 From the early 1990s to around
2010, the population of Asian Americans of college age more than doubled,
while their numbers at the most prestigious universities remained constant,
hovering around 16 percent.4 While academics in fields such as “Asian
American Studies” point out that not all groups that fall into the AAPI
category are doing well in socioeconomic terms, their cries are usually
ignored. Colleges regularly release numbers on how many Native
Americans or blacks are enrolled, but rarely if ever do they talk about the
Hmong.
One only has to look at how we think and talk about race in the United
States to clear up any doubts as to whether government classification can
have a major influence on the larger culture. Activist organizations are
formed on the basis of government classification, and individuals who work
for these groups are sincere in their attachment to their larger pan-ethnic
communities, no matter how imagined. The government itself, and major
private institutions living under its system of record keeping, measure
progress based on statistics reflecting everything from standardized test
scores to the suicide rates of designated categories of individuals. Public
policy and mass culture have both been shaped by decisions made decades
ago by bureaucrats who in many cases gave little thought to what they were
doing.
Although not to the same extent, the government has also helped usher
in the idea of gender and sexual orientation as relevant political categories
that institutions must take account of. At the time of the Civil Rights Act,
there was a consensus in the United States that men and women had
different roles to play in society, and the Diagnostic and Statistical Manual-
II released four years later classified homosexuality as a mental disorder.
Relatively few had heard of the concept of “gender identity.” Yet over the
next few decades, government, mostly through the courts and the federal
bureaucracy, would set out to do away with stereotypes in the workplace,
micromanage norms regarding dating, and make beliefs based on new
academic theories about the subjectivity and malleability of gender
mandatory for private institutions.
We see a common pattern in how the government has socially
constructed race and how it has helped legitimize a certain conception of
womanhood as the kind that deserves to be favored and cultivated by the
state. The government decides which categories are relevant to public life,
and which are not. It then goes about encouraging a system of data
collection and record keeping to justify state intervention and private
activism. Law influences culture, as individuals are financially incentivized
to lean into accepted identities and play their assigned roles, and may come
to genuinely believe that the box they are put in has deep historical, moral,
and spiritual importance. All of this happens far from the democratic
process; civil rights laws as passed by Congress, incomplete and vague,
serve as the justification for bureaucrats and judges to remake society.
Sometimes, government decisions are made with relatively little
conscious thought, as was the case with certain forms of racial
classification, and the categories decided upon only then take on cultural
significance. As will be shown in this chapter, the categories “Hispanic” and
“AAPI” existed as bureaucratic concepts before becoming part of the
mental model of the world that most Americans hold. In the case of sex,
women of course were always seen as a distinct category, but government
in the late 1960s began to come down in favor of an extremely specific
vision of womanhood, one that prioritized the feelings and ambitions of a
certain kind of adult over economic efficiency, freedom of association, or
traditional understandings of male-female relations that emphasized the
importance of children and family. While civil rights law promises
“equality” between the sexes, it prioritizes the interests of some women,
those who represent feminist ideals and seek economic self-sufficiency,
over women who prefer not to be in the workforce or who would like to use
their youth or beauty to their advantage.
Inventing American Races
In 1997, the Office of Management and Budget (OMB) revised Directive
No. 15, which required a minimum of five categories for the purposes of
government record keeping: “American Indian or Alaska Native, Asian,
Black or African American, Native Hawaiian or Other Pacific Islander, and
White.”5 There also continued to be two categories for “ethnicity”:
“Hispanic or Latino” and “Not Hispanic or Latino.” This was in contrast to
the original 1977 directive, which allowed the Asian American and Pacific
Islander categories to be counted together.6 The federal government
uniformly adheres closely to OMB guidance, whether it is the FBI reporting
crime statistics by race or the Office of the Director of National Intelligence
touting its diversity in hiring.7 Even more interesting is the fact that
practically every major private institution in the United States divides the
population into the same five or six categories when talking about race.
Harvard currently reports its numbers for Hispanics, blacks, Asians, Native
Americans, and Native Hawaiians.8 Stanford is similar, but instead of
“Native Hawaiians,” the school lists “Native Hawaiian or other Pacific
Islander,” copying OMB regulations more faithfully.9 The National Center
for Education Statistics reports test scores similarly, as does Google’s 2021
diversity report for its US workforce, although it collapses all Pacific
Islanders into something called “Asian+.”10
Two things are particularly noteworthy about how the United States
classifies people according to race. First of all, the racial classifications—
the macro-categories and the lines between them—look arbitrary. Groups
such as Arabs, Jews, North Africans, and those from the Caucasus are rarely
counted either within or outside government. Like the Italians and Irish,
they are considered part of the homogeneous white standard against which
diversity accomplishments are to be judged. The government cares about
your ratio of whites to non-whites; it does not care whether your whites are
Jews, Arabs, or Anglo-Saxons. At the same time, those who are non-white
need to be aggregated into large enough groups for the purposes of record
keeping and reporting; hence the categories “Hispanic” and “Asian.”
Second, institutions practically never provide religious breakdowns. There
is no particular reason to believe that discrimination based on religious
status is unworthy of consideration by a society that keeps such detailed
records on ethnicity. If the federal government and major corporations were
as obsessed with differences in crime rates, test scores, and socioeconomic
status between Southern Baptists and Episcopalians as they are with
disparities between blacks and whites, we would have a very different
society.
This is fundamentally strange, because nearly all the arguments made
for government race-consciousness apply to religion. One might say that
blacks and Native Americans have historically faced unique circumstances
in this country. But society shows a deep interest in the socioeconomic
status of other groups, many of which had practically no presence in the US
before the 1960s. Haven’t Catholics, Mormons, and Jews faced more
historical discrimination in the United States than Indonesians,
Venezuelans, and Sri Lankans? The differences in income between religious
groups are substantial; according to Pew Research, over a third of Hindu,
Jewish, and Episcopalian families make $100,000 a year or more, compared
to just 4 percent of Jehovah’s Witness households.11
The story of how the United States got to the point of having, for
practically all official purposes, four or five “races” and a binary choice for
ethnicity reflects the importance of lobbying, interest group politics, and
historical contingency more than it does either anthropology or a good faith
effort to address historical discrimination. The modern history of racial
classification can be traced back to the 1950s.12 President Dwight
Eisenhower followed Franklin Roosevelt and Harry Truman in signing an
executive order outlawing discrimination based on race or national origin in
government contracting. In 1956, the executive branch required contractors
to count only “Negros” and “other minorities,” with the option to engage in
more fine-grained analysis. Under pressure from activists and members of
Congress, “Spanish Americans” would soon be added. Not until the
Kennedy administration did the government start to count Native
Americans and “Orientals.” Nonetheless, already in 1966 the EEOC
required sixty thousand employers, those with one hundred employees or
more, to list the gender and racial makeup of their workforce, with the latter
based on categories we would recognize today.13 John Skrentny sees the
sending out of form EEO-1 as a watershed that marks the transition from
the era of official color-blindness to modern race-conscious governance. He
writes that rather than “protecting abstract Americans from the harm of
discrimination, the form explicitly created whites and blacks, who were
hired in each firm in varying proportions.”14
Over the next decades, government would get into the race-counting
business in the areas of contracting, education, voting, and employment.
Not long after the Civil Rights Act was passed, the state had moved away
from focusing on explicit discrimination in favor of looking for disparities
between groups, rooting out “stereotypes,” and other forms of social
engineering. Yet which “groups” were to be counted for purposes of record
keeping and analysis was yet to be decided. Blacks and Native Americans
were widely acknowledged to have suffered unusually long and brutal
forms of discrimination at the hands of the American government. But what
about other groups that had come to the United States by choice and, in
many cases, already overcome any obstacles holding them back, and even
surpassed the white majority in socioeconomic status? As Skrentny notes, in
a racially, linguistically, and religiously diverse society, government
classification “made some inequalities more real and others invisible.”15
According to Herbert Hammerman, who served for fifteen years on the
EEOC until 1981, the racial categories adopted by the government in the
aftermath of the Civil Rights Act used to enforce anti-discrimination laws
were “the product of sheer historical accident.”16 Yet they remain with us
today.
It is important to note that in the mid-1960s, Americans thought about
race as a political issue in terms of the status of African Americans living in
the South, one that was being solved through the Civil Rights Act and other
laws passed under the Johnson administration. Practically nobody saw
“minorities” as a government category that should separate certain
individuals from the white majority and make them eligible for special
government benefits. Yet while whites, blacks, and Native Americans were
natural categories with deep roots in American history, even if their borders
weren’t always clear, who exactly were Spanish Americans and Orientals,
the categories invented by the Eisenhower and Kennedy administrations?
Despite what EEOC forms said, the 1970 Census had no category that
corresponds to modern Hispanics or Latinos. There was no Asian or AAPI
category, either, although there were options for Chinese, Japanese,
Hawaiian, Korean, and Filipino, in addition to the standard categories of
white, black, and Native American.17 Only a sample form sent to 5 percent
of households that year asked whether the respondent had his origins in
Puerto Rico, Mexico, or another Spanish-speaking country. Our modern
theories of racial categorization were never natural or inevitable. UC
Berkeley sociologist G. Cristina Mora writes that, before the civil rights era,
there had been a “consistent empirical finding” that “Mexican Americans,
Puerto Ricans, and Cuban Americans overwhelmingly considered
themselves to be separate groups. They ‘didn’t really identify’ with one
another, and they ‘didn’t really know what Hispanic meant!’”18
The earliest substantive ethnic activity within the modern Latino
category was on behalf of Mexican Americans. In the mid-1960s,
representatives of this group were lobbying the EEOC for representation,
and in response, President Johnson appointed the first Mexican American
EEOC commissioner and established the Inter-Agency Committee on
Mexican-American Affairs (IMAA) by executive order.19 Congress began
to consider the organization’s fate in 1969, and legislators from the
Northeast asked whether the IMAA could also consider the plight of Puerto
Ricans. The bill resulting from this debate created the Cabinet Committee
on Opportunities for Spanish-Speaking People (CCOSSP). The term
“Spanish-speaking” was a compromise, as “Hispanic” was objected to by
the head of the IMAA, and Puerto Rican activists sought a term that would
include themselves.20
The focus on linguistic commonality provides insight into the intentions
behind the creation of this new minority. When asked who exactly was
“Spanish-speaking,” Congressman Edward Roybal (D-CA) replied that the
new legislation would not apply to those who had assimilated into the
American mainstream.21 In effect, he was arguing that one day, as soon as
barriers to success had been removed, the CCOSSP could be disbanded.
Martin Castillo, who had been appointed by Nixon to head the IMAA,
agreed that lack of assimilation was the main criterion by which to judge
which groups the government should help, therefore rejecting the idea that
Cuban Americans shared the same disadvantages as Puerto Ricans and
Mexicans on the grounds that they were doing well in the United States.22
Descent from a Spanish-speaking country or territory was not seen as a
source of permanent disadvantage in the US. The focus was on linguistic
differences that created difficulties for full participation in American life.
Congress failed to extend the CCOSSP in 1974 after it was accused of
having become a partisan tool of the Nixon reelection campaign.23 In the
end, although it had little formal power, the most lasting legacy of the
committee may have been its collection of data. Whenever it was necessary,
the CCOSSP could provide numbers on Spanish-speaking Americans and
what barriers they faced; earlier questions about who qualified and whether
government recognition of “Hispanics” as an official minority made sense
faded away, given the realities of electoral politics and lobbying from
within and outside the government. As it turned out, it was easier to create a
race than it was to disestablish one. In 1977, the OMB released the
aforementioned Statistical Policy Directive 15, which required all federal
data collection to include the Hispanic category.24 The National Council of
La Raza, originally a Chicano organization—that is, focused on Mexican
Americans—became a “Hispanic” advocacy group as it found it beneficial
to conform to government classifications and inflate the number of those it
claimed to represent.25 By 1982, it was relying on federal grants for 96
percent of its money. The Reagan administration then cut off funding, at
which point it began to rely more heavily on private foundations and
corporate donors.26
While the 1970s saw the solidification of Hispanics as a unified
category for purposes of government record keeping, activists still had a lot
of work to do in the cultural realm. Lobbying ensured that there would be a
question about Spanish speakers on all census forms in 1980.27 Showing
how controversial this was even a few years before that change, the New
York Times in May 1978 ran a front-page story critical of the new Hispanic
category, sympathetically quoting demographers who saw its creation as a
response to political pressure rather than as a classification that captured
anything worth measuring.28
In the end, the Census Bureau went with a Hispanic “ethnicity” question
instead of a race question, chiefly because of worries that if it allowed
respondents to say that they were part of a Hispanic “race,” it could reduce
the number of Americans identifying as black or African American.29
Census officials even met with black organizations to reassure them that the
new Hispanic question would not dilute the numbers of their own group.
Thus the arrival of an Afro-Cuban would increase both the number of
“blacks” and “Hispanics” in the United States. This is why today, when they
fill out forms, Americans are usually asked to choose a “race” and an
“ethnicity,” with Hispanic or Latino being the only kind of “ethnicity”
officially recognized.
Even as of 2012, 51 percent of people of “Hispanic” descent preferred
to refer to their country of origin to describe their identity.30 Just under one-
quarter (24 percent) chose “Hispanic” or “Latino,” and “American” (21
percent) was just behind that. In other words, close to three-quarters of the
“Hispanic” category either preferred an assimilationist label that embraced
their American identity, or saw themselves as people coming from a certain
country, not part of a loosely defined collective created for reasons having
to do with political activism and bureaucratic convenience. In the same poll,
seven in ten said that American Hispanics did not share a culture. Yet in
elite political discourse and institutions, alternative conceptions of identity
are all but ruled out. For ethnic activists to have a purpose, they need to
claim to represent a group that is distinct from the population, but not so
distinct that it can be ignored as irrelevant to national politics.
To most people of Latin American descent, ethnic politics is an abstract
issue with little relevance to their social, economic, or political lives. When
prompted to name the most important leader of their community, the vast
majority of Hispanics say they cannot think of one.31 The disconnect
between elites and the masses was demonstrated in the debate over the term
“Latinx” that emerged after the 2020 election, in which an unexpectedly
high number of Hispanics voted Republican. Polls showed that few
Hispanics had even heard of the word, and an even tinier minority used it,
with that minority being vastly outnumbered by those who found it
offensive.32 Nonetheless, the androgynous term continues to be used in the
worlds of politics, academia, entertainment, and ethnic activism. The irony
of this debate is that even the non-androgynous concept “Latino” itself was
a government creation that to this day has limited traction among the wider
public.
Creation of the Hispanic category, and its failure to completely prevent
assimilation into the American mainstream, can be seen as a reflection of
the limits of government social engineering. At the same time, the fact that
this category has so much influence on the way powerful institutions
operate despite its artificiality raises some disturbing questions. Congress
has a Congressional Hispanic Caucus, the government makes institutions
keep track of how many members of this “ethnicity” are employed in
different kinds of jobs, and grants and status markers are awarded based on
the assumption that the category is real. The fact that even a quarter of
people of Latin American descent call themselves “Hispanic” is a testament
to the power of government classification, given how completely fabricated
the label is. It would be as if a substantial number of Americans of Italian
and French descent came to call themselves “Romance Americans,” based
on the languages that their ancestors spoke. Back in the 1950s, such an
outcome would probably have looked not much less likely than the
emergence of Hispanics.
While there was at least some debate within government and in the
broader public surrounding how the government could count the emerging
Hispanic group and what it was owed, the Asian category was being formed
in an even more haphazard way. The existence of this group as an official
minority early in the civil rights era was complicated by the fact that its
members were doing quite well. Already in the 1960s, Chinese and
Japanese Americans had incomes well above the national average.33 An
“Oriental” category was added to government forms by the Kennedy
administration as a result of lobbying from the congressional delegation of
Hawaii, just a few years after the state was admitted to the union in 1959.34
The term was soon changed to “Asian or Pacific Islander” so as not to
exclude Native Hawaiians.35
While language brought together Spanish speakers into one government
category, geographical proximity grouped East Asians with people from the
Pacific. In 1960, the population of Hawaii was 16.2 percent Native
Hawaiian, in addition to 32.2 percent Japanese, 10.9 percent Filipino, and 6
percent Chinese.36 This was by far the most racially diverse state in the
union, but the overall numbers were small in the context of the nation as a
whole. The federal government therefore saw little harm in creating a broad
“miscellaneous” category that covered most of the population of one of its
states, even if the various groups living there had little in common.
Nonetheless, while Asian Americans could potentially complain that
they were underrepresented in certain businesses, the fact that they were
doing economically well overall meant that they received little attention
from the federal government. In 1978, Congress passed the Small Business
Act, which provided set-asides based on “social and economic
disadvantage,” with businesses owned by blacks, Hispanics, and Native
Americans automatically qualifying.37 Soon, however, the Small Business
Administration added “Asian Pacific Americans” after lobbying pressure.
Which groups counted in this category was settled within the federal
bureaucracy. Between 1982 and 1989, the SBA added individuals with
ancestry from India, Tonga, Sri Lanka, Indonesia, the Marshall Islands,
Micronesia, Nepal, and Bhutan. In the case of Indonesians, the change came
in 1988 when they were included based on the lobbying efforts of one
businesswoman after she was originally rejected.
In the next year, the SBA would reject Iranians and Arabs for inclusion,
and conclude that the category of “Asian” stopped at the Afghanistan-
Pakistan border for the purposes of government classification in this area.38
Although it doesn’t appear to have been given much thought, further up
north, Central Asians were and remain considered whites for the purposes
of government classification, with the status of Uzbeks being the subject of
a 2008 SBA hearing that was settled by the petitioner being declared
disadvantaged on nonracial grounds. The Asian standard in practice remains
as it was in the 1980s, with those who fall into the category generally being
discriminated against by admissions departments in colleges, where they do
relatively well, and yet often eligible for minority set-asides at the state and
federal levels. As of 2020, the SBA reported more federal contracting
dollars going to Asian-owned or Pacific Islander–owned small businesses
than those owned by either blacks or Hispanics as individual categories.39
When Directive No. 15 was revised in 1997, the resulting document
split Asians and Pacific Islanders. Sen. Daniel Akaka (D-HI) had been
receiving calls and letters from Native Hawaiians concerned that they were
losing out in terms of college admissions and scholarships on the basis of
being lumped within the larger and more academically successful Asian
category.40 He asked OMB to put them into the Native American category,
a proposal that ended up getting support from the rest of the Hawaiian
congressional delegation. OMB was afraid that this would open up the issue
of giving sovereignty to Native Hawaiians, a right that is under certain
circumstances provided to Native Americans. An official from the OMB
recommended giving the group its own category, which it ended up doing in
the revision to Directive No. 15 in 1997. Hence Pacific Islanders, a group
that represents no more than 0.4 percent of the American population,
became one of the five major “races” in the country, separate from Natives
of the forty-eight contiguous states and Alaska. Just as lobbying that
originated in Hawaii brought the categories of Asian American and Pacific
Islander together, it also split them apart.
The exclusion of “white ethnics” from the minority revolution is notable
because of the extent to which the idea of including these groups had more
grassroots support than did the inclusion of Native Americans, Asians, or
Hispanics, who would all be counted as designated minorities.41
Throughout the 1970s, there was large-scale media coverage of issues
related to ethnic Americans, and books written on the obstacles faced by
Catholics, Italians, and the Irish. In 1971, the Ford Foundation gave nearly
$1 million in a series of grants to address the concerns of the white working
class. A 1970 rally in New York City on behalf of Italian Americans
reportedly brought to the streets as many as one hundred thousand people.
Data was gathered on the underrepresentation of certain categories of white
Americans in various kinds of employment and other barriers they faced,
much of it summarized in a 1979 report by the USCCR titled “Civil Rights
Issues of Euro-ethnic Americans in the United States.”
Moreover, there was direct lobbying to the federal government on
behalf of white ethnics for inclusion. The EEOC originally denied Poles
official minority designation on the grounds that there was no room left on
their form, and including them might lead to demands for similar treatment
of “Italians, Yugoslavs, Greeks, etc.”42 More extensive efforts were made
on behalf of American Jews. Reports from the Truman administration on
civil rights gave them substantially more attention than European ethnics,
and the Eisenhower administration listed Jews as one group that could be
voluntarily reported on by employers in the “other minorities” category. But
official efforts to use civil rights law to fight anti-Semitism were eventually
dropped; the justifications included high Jewish socioeconomic status and
opposition from black activists. The Nixon administration quashed steps
taken by the federal bureaucracy to start relying on religious classifications
more generally, on the grounds that doing so would be unworkable and
potentially run afoul of the constitutional principle of the separation of
church and state.43
The inclusion of some groups and not others as official minorities, and
how those minorities are divided, has mostly been a story of bureaucratic
inertia. Throughout the 1970s, politicians and activists for groups that were
excluded from official minority designation asked reasonable questions.
Weren’t many “Latinos” white? If underrepresentation in important
positions was key to determining which groups needed government help,
why did the government brush aside data provided by organizations
representing Poles and Italians? Speaking before Congress in 1974, Jerome
Powell, the head of the EEOC, said that designated minorities were those
that the commission had found were discriminated against. Yet the
categories it relied on were in many cases created before the EEOC even
existed, and were apparently chosen in a haphazard way by bureaucrats
looking for practical standards and working off of little to no data.44
Whenever a new group has applied for official minority recognition,
government agencies have been able to reply that they do not have evidence
that they face enough discrimination. Ethnic activists respond that of course
there is no evidence, because the government is not collecting the relevant
data.45 These circular arguments have mostly ended, though there was a
serious attempt made by Arab and Iranian activists to add a Middle Eastern
category to the 2020 Census in an effort that was gaining momentum under
Obama but was lost under the Trump administration. Belatedly, it appears
that Republicans had learned their lesson about the ultimate effects of
creating new government-endorsed minorities.
Eventually, the made-up and largely arbitrary categories decided upon
in offices in Washington became “real” in the broader American culture.
The racial classification regime has not only had an effect on the self-
perceptions of minorities. The last decade has seen the rise of the “great
replacement theory,” which argues that Democrats and liberals are trying to
obtain power by changing the demographic makeup of the United States.
While this is often referred to as a conspiracy theory, if we assume that
Democrats are self-interested actors, there is no reason to suspect that they
do not see demographic change as a benefit for themselves, and it takes
only a moment of googling to find countless examples of those on the left
celebrating immigration for that very reason. One of my own survey
experiments has shown that both conservatives and liberals become more
supportive of immigration when told that new arrivals are likely to help
their side electorally.46 This does not mean that anyone designed the
immigration system as part of a conscious plan to reduce the influence of
whites, but one has to be willfully blind to deny that political considerations
play a role in immigration attitudes.
The conspiracy-theory label has allowed liberals to deny the substance
of the argument. Nonetheless, what neither side seems to have noticed is
that the idea of the great replacement derives from government racial
classifications and their downstream effect on culture. Although whites of
various ethnic groups support different political parties, there is relatively
little interest in how changing demographics within the category of “white”
might influence the future of American politics. Arabs and Persians
immigrating to America add to the “white” numbers, and in their own small
way help make it appear that the relative decline of the majority population
is being slowed. But newly arrived Hispanics, even if they look white and
will assimilate into the American mainstream, present a “threat” when they
are counted in official statistics.
The Rise of Hispanics, Latinos, Asians, and Pacific
Islanders
Before the mid-1970s, the word “Hispanic” appeared in fewer than one in
every five hundred thousand words in English-language books. By its peak
in the early 1990s, the frequency of the word had increased by two orders of
magnitude. “Latino” saw a smaller and more delayed rise from a lower
base. At the same time, “Mexican American” and “Puerto Rican” reached
their peaks in the early 1970s and have appeared at lower rates since.
Before this point, Americans were more likely to discuss individuals
belonging to either of these groups as notable for their country or territory
of origin rather than any wider “ethnicity.” Notably, “Hispanic” and
“Latino” came to eclipse “Puerto Rican” and “Mexican American” in the
years after the CCOSSP replaced the IMAA and when activism centered
around racial politics in Washington began to take off. Adding plural forms
does not change the results much, but delays the triumph of the Hispanic
and Latino categories by a few years, indicating that Figure 4.1
underestimates the recency of the change. The figure shows a logarithmic
display, which means that the changes are far more radical than implied
below.
It is remarkable that there is less relative discussion of Puerto Ricans
and Mexican Americans today than there was in the 1970s, considering
demographic trends. The number of Puerto Ricans living on the US
mainland increased by two and a half times between 1980 and 2012, and
the number of Mexican Americans has risen at an even faster rate.47 Yet
both groups arguably occupy less of a place in the American consciousness
as specific national-origins categories than they did in the 1970s, despite
our growing overall interest in identity and manufactured panethnicities.
The results for “Asian American” and “AAPI” are somehow more
dramatic. For all practical purposes, these concepts did not exist in the
English language at the time of the Civil Rights Act. Use of “Asian
American” then skyrocketed in the late 1960s, while it took two decades for
“AAPI” to catch on. There is no use of “Asian American Pacific Islander”
before 1972. The phrase does not even reach one in ten billion n-grams until
the 1990s. Before the 1960s, Americans were much more likely to write
about “Japanese Americans” or “Chinese Americans” than “Asian
Americans.” In recent decades, there are more mentions of “Asian
Americans” and “AAPI” than of Chinese, Indian, Japanese, and Korean
Americans combined.
Figure 4.1
Frequency of phrases in Google n-grams (1950–2019), for “Hispanic” and related terms.
Thus we can see that while whites, blacks, and American Indians have
always been with us, the other major races of contemporary America were
largely government inventions. The differences between people from
Spanish-speaking countries and territories have been deemphasized as we
have come to see them as one group for the purposes of understanding
cultural, socioeconomic, and political trends. The categories that correspond
to today’s “Asian American” and “AAPI” existed in government forms for
decades before they came into common use in the English language. If
bureaucratic classification influences how Americans conceive of racial
identity, the construction of which is often thought to be an organic process,
it is natural to think more carefully about the impact of civil rights law on
how people think about concepts like sex, humor, and the nature of the
relationship between the individual and the state.
Figure 4.2
Frequency of phrases in Google n-grams (1950–2019), for “Asian American Pacific
Islander” and related terms. There were zero uses of “Asian American Pacific Islander”
before 1972.
The Two-Front War on Tradition and Sexuality
The idea that the Civil Rights Act would ban employment discrimination
based on sex started out as an attempt by a southern segregationist to kill
the bill. The proposed amendment to Title VII nonetheless passed, with
many voting for it in good faith, although the entire process initially led to
confusion among government officials responsible for enforcement. Those
who were earnest supporters of the amendment hoped that it would tackle
sex segregation—by which was meant men and women being placed in
different jobs.48 In less than a decade, however, the federal bureaucracy
would be going beyond even what congressional supporters of civil rights
protections for women had intended. Ultimately, the ban on sex
discrimination would lead to the government declaring war on gender
stereotypes, micromanaging sexual relations, and even inserting new
theories of gender and sexuality into public policy.
Although most Americans would be horrified by an explicit
acknowledgment that government regulation extends to what are usually
thought to be personal matters, “work life” is still part of life, and in the
eyes of the law sexual harassment and other forms of discriminatory
behavior can occur even when individuals are off the clock. The story of the
ban on sex discrimination in employment demonstrates the breadth of civil
rights law and the degree to which it has expanded far outside the
democratic process.
In the mid-1960s, ideas about the naturalness and inevitability of
differential treatment based on sex were so entrenched that even
professionals in the EEOC thought that there was no justification for
applying the paradigm for fighting discrimination against blacks to
women’s issues. One staff attorney would recall that because “sex
discrimination came in as essentially a ploy by the opponents to try to derail
the legislation, it is quite understandable that it was not … even on the
radar.”49 Public discourse centered around the “bunny problem”; would
Playboy be forced to hire male models to be compliant with federal law?
Journalists used this example as a reductio ad absurdum of the idea that
government would actually ban discrimination based on sex.
By the end of the decade, however, due to pressure from political
activists, some of them working from within government itself, this had
changed. The National Organization for Women, which would become the
most influential feminist organization in the country, was formed at a
luncheon at a 1966 conference for state commissions on the status of
women.50 Over the next few years, the EEOC would stop allowing gender-
segregated advertising for jobs and oppose protective legislation at the state
level that relied on assumed sex differences to regulate the employment of
women differently from that of men.
The first few steps toward combating discrimination were based on
explicit differential treatment and clear rules that were easy to follow. As
long as an employer did not advertise jobs as only available to one sex, for
example, they could go on about their business. Soon, however, the
government would move into the area of setting standards for interpersonal
behavior and enforcing equal outcomes. Through its war on “stereotypes,”
it would even move into regulating culture and thought. In Price
Waterhouse v. Hopkins (1989), a woman accused of aggressive, foul-
mouthed behavior sued her accounting firm, claiming that she was denied a
partnership because she did not fit its ideas of what a woman should act
like. A plurality opinion of the Court held that, once discrimination was
proved, to avoid liability it was the defendant’s job to show that it would
have made the same decision in the absence of discrimination. Importantly,
gender stereotypes could be a form of discrimination.
Since the 1980s, courts have enforced a vision of “nondiscrimination”
that officially requires that males and females be treated as all but
indistinguishable from one another. The war on difference found in liberal
jurisprudence is a two-front war, fought against both environments that
promote traditionalist ideals that restrict sexual expression and those that
would encourage it. To take one illustrative case of the former, the Fourth
Circuit ruled in 2022 that a charter school that required skirts for female
students was violating the Equal Protection Clause and left open the
possibility that the rule also ran afoul of Title IX.51 The school argued that it
taught traditional morality and wanted to encourage chivalrous behavior
among its young men. A concurrence brushed aside claims that parents had
a right to guide the development of their own children by pointing to the
“psychological damage” that young girls faced by being required to dress
differently from boys.52
While the majority could of course cite “expert testimony” in favor of
this view, the idea that differential treatment based on sex is damaging to
the development of young girls would imply that institutions controlled by
modern liberals are the only ones capable of creating well-adjusted women.
The increasing rates of female unhappiness over the last few decades as law
and culture have become more egalitarian, along with the close connection
between liberal ideology and mental illness among girls, imply that even if
it’s not clear that liberal ideology makes women unhappy, modern leftists
are unlikely to have a monopoly on wisdom in this area of life.53
Perhaps nowhere have social engineers been more explicit about their
goals to reshape humanity than in the area of Title IX. Courts have held that
not only must schools have rough proportionality between males and
females in athletic participation, but that female sports must be competitive
enough to be included in calculations. Thus, at least in the Second Circuit, a
school cannot balance out a male football player with a female cheerleader;
maybe the girl doesn’t have to play football herself, but hockey or
volleyball is generally acceptable, though the state of Florida was at one
point sued over its decision to count flag football as a varsity sport.54
Moreover, simply offering the right number and mix of female sports is
not enough. In 2012, the Seventh Circuit ruled that an Indiana high school
could be sued under Title IX for scheduling boys’ basketball on Fridays and
Saturdays and relegating girls’ games to other nights, when fewer members
of the community are likely to turn out.55 While the boys benefited from
games with a “packed gymnasium, cheerleaders rallying the fans, the crowd
on their feet supporting their team, and the pep band playing the school
song,” when girls played the “bleachers are nearly deserted; there is a lack
of student and community support.” Following other court decisions, the
Seventh Circuit held that the community being more interested in boys’
basketball was no defense; such “stereotypes” could not be the basis of
government decision-making, and sports scheduling decisions therefore had
to be taken out of the hands of the local community.
The decision reflected the norm of Title IX being used as a method of
social engineering, complete with a stand taken in favor of the malleability
of gender differences. It cited a previous court case that asserted, practically
as a matter of law, that girls’ sports can be “just as exciting, competitive,
and lucrative as men’s sports.” The court, of course, never explained why
girls’ basketball could be as exciting as the boys’ version of the sport, given
that at any level the best female athletes are inferior to their worst male
counterparts. It would be as if the government decided that a basketball
league featuring only athletes less than five feet tall could be just as exciting
as the NBA, and declared that if any government institution acts based on a
different assumption it is potentially in violation of civil rights law. In one
Ninth Circuit decision, an unusually explicit court asserted “that women’s
attitudes toward sports are socially constructed and have been limited by
discrimination and gender stereotypes,” and that the purpose of Title IX was
to change that state of affairs.56 Title IX is the only reason such insane
beliefs can become mandatory throughout the education system, while
anyone who sought gender parity in, say, fantasy football interest would be
a laughingstock.
Religious conservatives and local governments are not the only ones no
longer able to run their affairs as they see fit. Southwest Airlines marketed
itself in the 1970s as an airline that appealed to men, employing only
young, attractive women as ticket agents and flight attendants in the hopes
of creating a fun and informal atmosphere.57 A group of men sued, arguing
that they were being discriminated against under the Civil Rights Act. In its
defense, the airline acknowledged that it discriminated against men, but
argued that it was legally allowed to do so due to the exception in Title VII
that allows for sex discrimination in the case of a “bona fide occupational
qualification reasonably necessary to the normal operation of that particular
business or enterprise.”
In 1981, the Northern District of Texas rejected that argument on the
grounds that the primary business of an airline is to transport customers.
Since men are capable, the court said, of performing the most necessary
tasks of being a flight attendant or ticket agent, such discrimination was
illegal in this case. Although Southwest Airlines argued that restricting
these positions to females was necessary for its business success, the court
was unpersuaded.
In the post–civil rights era, government now decides questions like “Is
an airline based on sexy stewardesses a good idea?” A distinguishing
marker of a free society, however, is the ability of individuals and
institutions to arrange their own affairs as they see fit.
To take another illustrative case, in 2019 five female journalists between
the ages of forty and sixty-one sued the TV station they worked for on the
grounds of age and sex discrimination, saying that they had been pushed
aside for younger women and men.58 The premise of the lawsuit, as in the
case of the Southwest flight attendants, was that it is government, not
employers and consumers, that decides the nature or “true essence” of a job.
Civil rights law gives artistic freedom to those who cast TV shows and
movies, yet it is considered legally questionable whether sex appeal can be
used to sell news. One of the allegations of the female journalists was that
management was grooming young women to take their jobs.
While this is clearly “age discrimination”—another monstrosity created
by civil rights law—the argument raises the question of how a practice that
prefers certain women over others can be a form of sex discrimination. A
norm that one cannot prefer certain women for jobs because of their youth
or beauty does nothing to create equality between the sexes but is consistent
with an understanding of civil rights law as a way for academic theories
seeking social transformation to be forced onto private institutions.
The worst fears of those who talked about the bunny problem were
never realized. Strip club owners, pornographers, and movie producers can
still discriminate based on sex. Everything else, however, had to change,
even though the notion of the government deciding whether the news must
be read by a young, attractive woman or an older and unattractive one
reflects a fundamental break with pre–civil rights conceptions of the
appropriate limits of state power.
Yale Law professor Vicki Schultz argues that the workplace has been
“sanitized” of all sexual content in the name of fighting discrimination,
regardless of the desires and wishes of men and women.59 Indeed, when
one interrogates the assumptions that are at the center of harassment law,
they are revealed to be those of radical feminists with views that
problematize conduct and ways of living most people find unobjectionable
or even healthy. Election results can ideally represent the preferences of all
women equally, regardless of whether they are married or single,
housewives or career-focused. When policy is made by activists and
bureaucrats, however, it naturally becomes tilted toward the interests and
aesthetic preferences of a small minority. This is true with regard to men,
but even more so in the case of the sex whose members are less likely to
seek full-time employment. Current civil rights law discounts the views of
women with a less hostile attitude toward traditional heterosexual relations,
whether they subscribe to a conservative sexual morality or not.
As with much in civil rights law, universities are on the cutting edge of
the zeal for social engineering. Their ideological leanings and financial
reliance on the taxpayer mean that they are usually the institutions most
welcoming to federal regulation in this area. The Dear Colleague letters of
the Obama years reflected a shift away from an understanding of
discrimination as an act committed against individuals to one in which
patriarchal oppression is part of American life; hence settlement agreements
with universities that included “systemic” solutions such as more training
for faculty and students and the creation of new bureaucracies.60 While the
American university provides the most extreme example of what can go
wrong when social engineers are given a free hand, we see similar problems
in business and industry, and the triumph of the radical feminist view that
many forms of heterosexual relations are inherently suspicious, particularly
when there is a power differential between a man and a woman. The ideal
of womanhood under civil rights law is one in which love, passion, and sex
are removed from professional life, but only in the name of equality, not
traditional ideas rooted in modesty and restraint.
To say that the state is simply “fighting discrimination” ignores the fact
that many women have socially conservative views and, if given a choice
between their husbands being able to earn as high a wage as possible or
themselves having an equal right to work, would select the former. As of
2017, 57 percent of women were in the labor force. The rest do not directly
benefit from anti-discrimination laws. In 2019, 75 percent of men preferred
to work outside the home, compared to 56 percent of women.61 The number
of women in the labor force and those who say they want to work is
practically identical.
As of the late 2010s, slightly more than one in ten heterosexual couples
met at work or through coworkers.62 According to surveys that asked
couples about their current or most recent partner, this was down from
about 20 percent at its peak, with the number of work couples having
started to decline around the time that the Civil Rights Act of 1991 began to
allow punitive damages for sexual harassment claims. While some of this
change is surely due to technological developments such as internet dating
apps, it is difficult to see how making unwanted sexual advances at work
potentially illegal would not have reduced the possibility of new
relationships forming. The fact that anyone still dates at work is a testament
to human nature; individuals, particularly men, will occasionally take
personal and financial risks in order to form relationships with someone
they find attractive.
With regard to race, it is clear that government classification came
before social change, with Hispanic and Asian identities largely being
creations of a bureaucracy. In contrast, of the many developments in gender
relations over the last half century, only some of them can be attributed to
public policy. Outside of the United States, since the mid-twentieth century
we have seen declining birth rates and delayed rates of marriage across rich
countries.
Despite a greater focus on achieving equality in the workplace, we see
—apart from in Scandinavia, which has unusually high numbers—
corresponding trends in female labor force participation rates across
developed countries. The numbers increased up till the 1980s or 1990s
before plateauing and settling at between 50 percent and 60 percent in
recent years, just as in the US.63
As discussed in the next chapter, while anti-discrimination laws might
have made the workplace a less fun and interesting place, it is unclear to
what extent they have remade the culture more generally. Nonetheless,
Americans spend a lot of time at school and work, and taking away their
ability to build unique subcultures is a major cost to happiness and well-
being, even if human nature is resilient enough for things to mostly go back
to normal when individuals clock out. It is worth remembering that even a
small decline in the birth rate should be taken seriously as a major problem,
as stopping families being formed is a much greater sin than allowing
certain forms of workplace inequality to continue to exist.
While sexual harassment law is now decades old, a more recent
development has been the rise of LGBT rights, which are, at the federal
level, mostly creations of the courts. “Gender identity” did not exist as a
concept outside of the academy and a few other fringe sectors of American
society during the Clinton administration, much less when the Civil Rights
Act was passed. Yet in 2020, the Supreme Court ruled that private
businesses had to embrace gender theory due to a law signed in 1964. At the
time of the decision, more than half of American states had no employment
protections based on gender identity, and attempts to create them at the
federal level had failed for decades.64 To be uncomfortable with a man in a
dress is now illegal in the American workplace.
Bostock to a large extent codified nationally what had been the legal
standard in more liberal states. As the workplace has been cleansed of
heterosexual relationships and behaviors that might lead to them, firms have
fallen over themselves in their support for nontraditional preferences and
lifestyles. In recent years, major corporations have aggressively promoted
the LGBT agenda, even threatening capital strikes against states that
considered passing religious freedom bills or other legislation understood to
be contrary to the LGBT cause. While the development of sexual
harassment law has meant that gays are in many ways as restricted as
everyone else in how they can behave at work, it is only those on the
official list of “sexual minorities” that see their identities legitimized and
celebrated by powerful American institutions.
The number of under-thirties who identify as LGBT has, according to
surveys, risen from around one in twenty in 2008 to one in five in 2020.65
Although more reliable government figures from the UK and Canada
indicate that the numbers in American surveys might be inflated by a factor
of two or three, this would still represent a large increase over the recent
past. Moreover, much of the increase in LGBT identity appears to be among
those who engage in only heterosexual behavior, indicating that we are
arguably witnessing more of a social contagion of identity than a situation
where greater tolerance has allowed more individuals to live as their
authentic selves. Again, as with changes in gender relations, it is difficult to
prove a causal effect of government policy, though it would be surprising if
it had none. Nonetheless, with regard to gender and sexual identity issues,
we see the same story of social engineering evident in the way we think
about and classify individuals according to race.
Official Minorities as a Source of Expanding
Government Power
The success of I Love Lucy is only one example of what the writer Steve
Sailer calls “diversity before diversity” in American society.66 That is,
before it was the norm to celebrate the accomplishments of minorities as
minorities and undertake efforts to demographically remake American
institutions, people of non-European descent were able to succeed without
that fact being considered remarkable. Among his examples are a half-
Mexican head of counterintelligence at the CIA who began serving in the
1950s; Charles Curtis, who was three-eighths American Indian and vice
president under Herbert Hoover; and a Native Hawaiian who was a famous
surfer and won Olympic gold medals in swimming in 1912 and 1920. That
the racial backgrounds of some individuals seem more notable in the 2020s
than they did a century or even a few decades earlier demonstrates both the
influence and the absurdity of government racial classification. While no
one can deny the disadvantages historically suffered by blacks in the South,
society did not have to go down the path of making broad racial categories
central to political and social life.
Throughout the civil rights era, we see a feedback loop in which culture
affects law and law affects culture. Today, the existence of “Hispanics” and
“Asian Pacific Islanders” as natural categories is taken for granted by many
Americans, and entire identities are built around them, at least among the
more educated and politically active portion of the population. We talk
about the impact of the “Hispanic” vote and “AAPI” representation.
Cambodian Americans have a more difficult time getting into some schools
and universities in part because Korean Americans are academically
successful. An attack on a Thai man in San Francisco is seen as part of a
narrative of “AAPI hate” that is rooted in the novel coronavirus having
originated in China.67 The Biden administration points to the appointment
of an American of Cuban and Jewish descent to satisfy Mexican American
activists clamoring for more Hispanics in government.68 Meanwhile, there
is little to no pressure to appoint Muslims or Arabs to high positions, and
any prominent figure who counts the number of Jews in government is
more likely to be banned from social media than see his comments
perceived as a good faith attempt to show concern over diversity.
Like broad racial identities, the idea of a sexless workplace—but one
supportive of LGBT and whatever letters might be added in the future—is
now taken for granted in American culture. There is no reason to suspect
that this is what the majority of the population wants, and even if it did, a
free country normally allows those with minority preferences to live as they
see fit. The trend in recent decades has been to get government completely
out of the bedroom, as seen in court cases knocking down restrictions on
pornography and homosexual behavior. Yet sexual harassment law—made
by courts and administrators and justified by appeals to egalitarianism
rather than social conservatism—stands out as a glaring exception. Here,
there is no form of intersex interaction that is too small to escape the
potential concern of government. Businesses find themselves having to
adopt policies that are less tolerant of flirtation and other forms of organic,
healthy interactions between men and women, meaning that government
has in effect legalized all sexual behavior that goes on behind closed doors,
while also carving out an exception for when two individuals work together
—in which case it has problematized every step in the process to get to that
point.
When it comes to sexual orientation and gender identity, it appears that
activism and culture have moved at least as fast as politics. Support for gay
marriage became a fashionable cause among entertainers a few years before
it became the norm even for national Democratic politicians. Yet there was
always a “heads I win, tails you lose” component to the debate. By the mid-
2010s, the country was headed toward an equilibrium in which liberal states
were expanding anti-discrimination laws to cover LGBT individuals and
adopting new ideas about gender identity coming out of social media and
the academy. Conservative states, meanwhile, were adopting cultural
practices and government policies that reflected their own preferences, and
left private parties to decide such matters for themselves.
In his dissent in Obergefell v. Hodges, the 2015 case that rendered bans
across the country on gay marriage unconstitutional, Justice Scalia noted
the dictatorial nature of the ruling, which had—with little in terms of sound
legal justification—settled a political debate once and for all in favor of one
side. The Supreme Court did not recognize same-sex marriage or create
anti-discrimination protections for homosexuals and transsexuals as soon as
these causes became accepted in liberal circles. Rather, it let the debate
occur, and then told those who had achieved victories in the public square
that their activism had been in favor of a cause that violated the
Constitution the whole time, and therefore a waste of time and money.
One may agree or disagree with decisions to expand the scope and
coverage of anti-discrimination laws. But we are a long way from the
original intent behind the Civil Rights Act of 1964 or any other piece of
major legislation. Sexual harassment law, the war on stereotypes, and new
definitions of gender have been forced upon the American people, as we see
courts and the federal bureaucracy serve as the pipeline for ideas coming
out of universities to make their way into law. None of this was historically
or legally inevitable. Nor can it be justified as an organic process
responding to larger societal trends. It is the exercise of power by a class
that denies it is doing any such thing.
The law creates the concept of “minorities” and draws lines within that
category. It assigns each individual either oppressor or victim status,
perceiving the latter as belonging to “communities” that stand apart from
the larger society. The OFCCP, for example, recommends that contractors
encourage the creation of identity groups within their workforce and recruit
from race-based organizations.69 Just as the government constructs and
classifies a “minority” for the purposes of data analysis and social
engineering, it shapes the kind of woman it wants to be consistent with the
preferences of a class that is disproportionately career-focused and single or
lesbian.
One cannot fall back on the argument that judges and bureaucrats are
channeling “evolving ideas” or “evolving norms,” unless we’re referring to
those of the class that they belong to. Feminists and advocates of LGBT
rights had to use the courts and federal bureaucracy because they could not
get what they wanted, at least at the federal level and in most states, through
the democratic process. With every innovation coming out of academia or
the activist community, the left could rely on the legitimacy that originally
accompanied the passing of the Civil Rights Act of 1964 and the
mechanisms it created to push for legal standards and regulations that
would have been considered absurd by those who wrote and voted for the
original bill.
Theorists who believe in the complete subjectivity and malleability of
gender have never needed to convince a large portion of the population that
they are correct. Rather, the prohibition on sex discrimination found in civil
rights law—originally introduced as a joke and at most thought to end
segregation in the workplace—has acted as a justification for a two-front
war against both the expression of human sexuality and the most
historically tested methods through which to curb some of its more
destructive aspects.
Chapter 5
Social Engineering as a Cause of Stagnation, Ennui,
and Social Strife
At the time of the collapse of the Soviet Union, never before had an
ideological debate been settled with such finality. For half a century,
intellectuals debated whether central planning or markets were the better
way to organize an economy. Although socialists had lost the debate
intellectually by at least the 1970s, few analysts foresaw that the Soviet
Union would decide to abolish itself because its leaders no longer believed
in the ideology of the empire. Even those who benefited by ruling over a
planned economy were now admitting that it could not work. It was almost
as if, in the midst of the European wars of religion, the pope announced that
he’d had a revelation in which God told him that Martin Luther’s critique of
the Catholic Church was on point. Today the debate is between those who
advocate for a form of free market capitalism with relatively little
redistribution, as in the United States, or one with more redistribution, as in
Scandinavian countries. China and India, the two largest states in the world,
have benefited immensely from the move toward capitalism, despite large
differences in their governing systems.
Yet while central planning in the economic realm has been completely
discredited, in social matters it has become an accepted part of life in the
United States. Most Americans see themselves as part of the “free world.”
Unlike in authoritarian countries, in the United States, Europe, Japan, and a
handful of other places society is run, and distributional outcomes are
determined, according to consistent rules and decentralized processes like
markets and elections. This includes the idea of cultural pluralism; the
American system in particular gives people the power to live their lives and
organize themselves however they see fit. This applies both to politics, in
the form of federalism, and to the most intimate matters of faith through the
separation of church and state.
Previous chapters of this book have argued that this view of American
society, while still true in some ways, is also to a large extent outdated. This
chapter makes the case that civil rights law, out of all the problems one can
focus on, should be an area of concern for those interested in human
progress. In broad terms, modern civil rights law has at least four major
effects on American society: the war on merit, restrictions on the cultural
pluralism that is necessary for human happiness, ending creative destruction
in personnel management, and widespread social strife as reflected in our
culture wars.
How could one area of law have such disastrous downstream effects in
so many different areas of life? By way of analogy, this question can be
answered by noting that one might be skeptical of a claim that there is a
medicine that cures a large number of ailments, while being more ready to
believe that there is a poison with a large number of negative health effects.
Like the human body, society is an extremely complex system, which
means that there are many more potentially harmful interventions than there
are beneficial ones. Civil rights law has effectively ended freedom of
association as the default assumption in American private life, and it
reaches down to regulate nearly all forms of interpersonal relations. There is
no reason to expect the downstream effects of such a revolutionary change
to be constrained to one area of human existence. One cannot make a
comprehensive list of all the things that can go wrong in a centrally planned
economy, because the theory the system being analyzed relies upon
fundamentally contradicts sound economic principles. Likewise, the idea
that the federal government can regulate personal relationships is so
contrary to human nature, and reflects such a misunderstanding of the
organic ways in which cultures and norms develop, that it should be
unsurprising to learn that the post-1964 regime has had dire and wide-
reaching consequences.
Similarly, the belief that in a world free of discrimination every group
would have equal outcomes in every field is—and this is not an
exaggeration—contrary to everything one would learn from the most
cursory study of human history.1 As Steven Farron points out, minority
groups have often done socioeconomically well in the face of extreme
societal discrimination.2 Some examples include the Chinese in Southeast
Asia and the Jews in Eastern Europe. The reason for this is that under most
circumstances, people are too selfish for discrimination to play a major role
in relative socioeconomic outcomes.
Bigots, like other people, care more about their own personal comfort
and financial interests than they do about hurting others. This is true even
under the most extreme circumstances.3 A Nazi Party report from 1937
complained that “large parts of the population, and even of the Party
community, do not bother … even about the most basic demand, namely
not to buy from the Jew.”4 The political leadership in the Third Reich was
not immune to this desire for needed goods and services at reasonable
prices, as Hitler himself decorated the Berghof with drapery from a Jewish
textile-manufacturing firm. The civil rights regime—which holds that
government must interfere in free markets to prevent private-sector
discrimination and thus create equal opportunity—rests on fundamental
misunderstandings of both economics and human nature. There is no way
for a government to operate under such an assumption without going to war
against important principles such as merit, freedom, and cultural pluralism.
The War on Merit
While large socioeconomic disparities that are not based in underlying
differences in productivity cannot exist in a market system, government is
of course a different story, and here widespread discrimination can
plausibly explain differences in outcomes between groups. Once the need
for government is accepted, the question becomes what kind of criteria to
use to select state employees. For most of recorded history, nepotism and
patronage were the standard methods.5 Powerful men would distribute state
offices to their family members or officials who would then owe them
favors. In the American context, patronage took the form of the “spoils
system” that emerged in the nineteenth century and became the target of
progressive reformers. Government employees were appointed and
removed based on loyalty to elected officials, were frequently given paid
leave to campaign for them, and might even send a portion of their salaries
to politicians.6 Reflecting the attitudes of many reformers of the time, an
1868 congressional report quoted a Jackson biographer who wrote, “The
Government, formerly served by the élite of the nation, is now served to a
very considerable extent by its refuse … a man’s holding office under the
government is presumptive evidence that he is one of three characters,
namely, an adventurer, an incompetent person, or a scoundrel.”7
In 1881, President James Garfield was assassinated by Charles J.
Guiteau, who believed that his support for the Republican Party during the
campaign had entitled him to a diplomatic post in Paris. As a result,
Congress finally decided that change was needed, and in January 1883, it
passed the Pendleton Civil Service Reform Act. The bill authorized the
president to appoint a three-member Civil Service Commission (CSC).8 For
the jobs to which it applied, the law, among other provisions, mandated
“competitive examinations for testing the fitness of applicants for the public
service,” banned those “habitually using intoxicating beverages to excess,”
and disallowed members of Congress from recommending applicants.
The president was given discretion to decide which federal employees
were covered under the Pendleton Act. The portion of the federal
government covered went from 11 percent shortly after the bill was signed
to 46 percent by 1900.9 Yet the impact of the new merit system was even
stronger than those numbers would indicate, since it tended to
disproportionately cover the most important government officials.10 This
greatly increased American state capacity. In 1895, Theodore Roosevelt,
then serving on the Civil Service Commission, wrote that “every Cabinet
officer whom I have seen in Washington has, before the end of his term,
come to the conclusion that if there was any bureau in which he needed
special efficiency, he had to put it under the civil service law.”11
Modern science has generally confirmed the belief of nineteenth-
century reformers that standardized tests can predict employee
performance. The superiority of standardized tests as a method of selection
cannot be completely credited to the scientific accomplishments of
psychometricians in designing such useful tools; it is less the case that
written exams are a perfect measure of performance than that practically
everything else is so much worse. Personality tests, for example, rely on
self-assessment, and there is no guarantee that a candidate will have a high
degree of self-awareness or even answer honestly. Standardized exams that
try to measure general intellectual ability, in contrast, do not have this
problem, since the whole point of the exercise is to determine if the
candidate can figure out what the right answers are. Interviews can be
useful in certain circumstances, but the interpersonal nature of the
interaction and the human tendency to take into account superficial factors
tend to limit their predictive ability.
In the empirical literature, there is no question that intelligence tests are,
in general terms, the best predictors of job performance, regardless of the
complexity of the job in question.12 The assumption that one can maintain
standards of merit while having selection mechanisms that all racial groups
perform equally on simply has no support in the data, despite massive
efforts undertaken on the part of psychologists to develop methods that
would do precisely that. The difficulty created by civil rights law is so well
known that it is referred to as the “validity-diversity trade-off”: the better a
metric is for predicting job performance, the larger its disparate impact.13
Nineteenth-century progressives did not have access to modern social
science, but they were on the right track when they argued that objective
standards provided a better basis for hiring than subjective processes or
arbitrary characteristics.
The idea that standardized tests should be used for government hiring—
having had the prestige of being a successful Progressive Era reform and
been confirmed by psychological research—was therefore uncontroversial
by the mid-twentieth century. What had been an issue that was central to
American politics just a few generations before was conclusively settled in
favor of merit. Yet this consensus would not survive the civil rights era, and
the shift from a focus on equal opportunity to one on equality of results.
Within one month of the founding of the EEOC in 1965, a White House
conference on employment discrimination that included staff members of
the new organization foresaw policies based on class action lawsuits, racial
balancing, and quotas.14
The soft quota approach became all but required in much of the private
sector under Title VII and EO 11246, but it was even more successful in
government. Private businesses, always worried that incompetence or bad
morale can harm the bottom line, have an incentive to hire talented
attorneys to fight the more extreme interpretations of civil rights law, while
government agencies have a tendency to roll over. Hence while the EEOC
failed when it filed early sexual harassment suits against private companies,
it had better success when going after the Environmental Protection Agency
and the Community Relations Service, in cases where it could establish
general precedents.15
Despite the move toward race-consciousness in the decade after the
passage of the Civil Rights Act, old ideas about merit still had a foothold in
the federal government via the Civil Service Commission, with its statutory
basis in the Pendleton Act of the previous century. The EEOC and the CSC
spent the late 1960s and much of the 1970s in open conflict over the
question of merit versus representation. In 1970, the EEOC put out
guidelines that explicitly stated that getting employers to switch to tests that
rejected whites and non-whites at more equal rates was a goal of public
policy.16 This was opposed by the CSC, and even the precursor to the
OFCCP tended to think that the EEOC was going too far in its hostility to
merit-based standards.
The USCCR, which advises the rest of the government on civil rights
issues, sympathized with the EEOC position. In a 1970 report, it noted that
the examination process was the main method for selecting federal
employees. Out of 2.5 million applicants a year, 300,000 to 450,000 would
be hired after being screened through tests.17 The USCCR criticized the
exams for having an “impersonal, formal, authoritarian” aspect. Reflecting
the view of the civil rights establishment of the time, it celebrated the fact
that some tests used for federal employment had dropped arithmetic and
algebra in the name of achieving equality.
In 1972, Congress created the Equal Employment Opportunity
Coordinating Council, which included among its members the Department
of Justice, the CSC, and the EEOC, in the hopes of creating uniform
standards for determining employment discrimination under both Title VII
and EO 11246.18 The EEOC and CSC became the main antagonists, and
their disagreement centered around the disparate impact standard, as the
two sides grappled over highly technical issues like whether it should apply
to every step in the hiring process, as the EEOC wanted, or whether to take
a “bottom-line” approach that only looked at final results and therefore
could preserve a larger role for written tests, as the CSC preferred. The
EEOC raised eyebrows when it filed an amicus brief supporting an
unsuccessful black applicant to the Department of Housing and Urban
Development who sued the CSC over the use of the Federal Service
Entrance Examination.19
A DOJ official would write in a memo that the effect of the EEOC
position would be “to place almost all test users in a position of
noncompliance; to give great discretion to enforcement personnel to
determine who should be prosecuted; and to set aside objective selection
procedures in favor of numerical hiring.”20 The Government Accounting
Office released a report noting that EEOC regulations were so confusing
that employers were dropping tests altogether and adopting hiring quotas to
protect themselves. Showing the attitudes of the civil rights community, the
staff director of the USCCR in 1973 told an interviewer, “I don’t believe
there is such a thing as a merit system,” while leaving open the possibility
that one could theoretically exist at some point in the future.21
In the end, the question of merit versus representation that had been
waged within the federal bureaucracy was settled by an election. In 1976,
Jimmy Carter won the presidency, and his administration came down on the
side of the EEOC and the civil rights lobby.22 With overwhelming
Democratic majorities, Congress passed and President Carter signed the
Reorganization Act of 1978, a bill that put an end to the Equal Employment
Opportunity Coordinating Council and made the EEOC the preeminent civil
rights enforcement agency in the federal government. The Civil Service
Commission was abolished as a standalone entity and split up into the Merit
Systems Protection Board and the Office of Personnel Management (OPM).
At the risk of oversimplification, we may divide American governance
into four eras. From the Founding to the presidency of Andrew Jackson,
there was the era of elite rule. Then came the spoils system, which was
ended, albeit imperfectly, with the Pendleton Civil Service Reform Act of
1883 and the formation of the Civil Service Commission. The era of
meritocratic hiring lasted just under a century. Since 1978, when the Civil
Service Commission was abolished, if not earlier, we have been living in
the racial spoils era, where government maintains impersonal standards but
seeks to distribute jobs across various official categories.
With the CSC on its way out, the EEOC was able to finally get its way
on federal hiring. In Luévano v. Campbell, a group of civil rights lawyers
filed a lawsuit against OPM, the main successor to the CSC, on the grounds
that the Professional and Administrative Career Examination (PACE)
discriminated against blacks and Hispanics under Title VII.23 The Carter
Justice Department was sympathetic to the plaintiffs. It therefore agreed to
settle in January 1981, just as Reagan was coming into office, and PACE
was eliminated. This was after the Nixon administration had already thrown
out the original civil service test in 1972. After Luévano, according to the
Washington Post, as of 2015, in most kinds of federal hiring, “applicants
who make it past the initial screening do so based on résumés, self-
assessments and a measure of luck.”24 While reforms have been attempted,
the federal government has not been able to solve the validity-diversity
trade-off any more than private employers have.
Interestingly, one way to potentially get around the problem is through
explicit quotas. In the first decades of the EEOC’s war on testing,
employers had begun to “race-norm” exams, which simply meant giving
extra points to individual blacks and Hispanics by only comparing their
scores to those of the same ethnic group. With that method, instead of
eliminating standards, one can at least find the most qualified people from
each race. The EEOC was in favor of this practice as a means to achieve
equal representation, at one point actually prosecuting a Tennessee
company for not giving extra points to black applicants.25 When race-
norming became the subject of public controversy, however, it caused an
outcry, and the practice ended up being banned in the Civil Rights Act of
1991.26 In one of the many ironies of civil rights law, a conservative
political victory actually ensured less merit and competence in hiring, since
the alternative to explicit quotas has always tended to be a shift toward
eliminating objective standards altogether. The EEOC, generally opposed to
merit when it makes demographic balance more difficult to achieve, was
actually supportive of a “second-best” solution that unfortunately ended up
being politically untenable.
Written exams are far from the only standard targeted by civil rights
law. Few hiring criteria seem as obvious as the idea that police officers,
firefighters, and military personnel need to meet certain physical standards.
Unfortunately for the left, almost any non-negligible physical fitness
standard that men have to achieve is going to exclude practically all
women. Candidates to become police officers, firefighters, and military
personnel generally still must meet certain levels of fitness, but here
“norming” based on demographic background is not only permitted but
practically required. There doesn’t appear to be much of a policy
justification for this. Rather, it seems that banning race-norming in hiring
can obscure favoritism shown toward underperforming minorities, while
physical differences between the sexes are so obvious and pronounced that
it would do little good to try to hide them. Even height requirements for
police officers are a recurring problem under civil rights law.27 The US
Army had for years tried to maintain consistent standards across age and
sex for its annual fitness test, but finally gave up in 2022.28 Only when civil
rights law cannot stealthily prefer some groups over others does it do so
openly.
While the war on merit has gone furthest in the public sector, it has also
had a major impact on private employment. As mentioned before, however,
a key difference between the public and private sectors is that government
is not incentivized to maximize profit, while businesses are, which means
that there are some limits to how much damage civil rights law can do to
American industry, as long as it can hire enough lawyers and supposed
experts to protect itself. One survey of 2,500 companies conducted a few
years after Griggs showed that three-quarters of those that used testing
planned to cut back, and 14 percent were going to eliminate it completely.29
Yet paper-and-pencil tests have not completely disappeared. Asked to
comment on a venture capital firm that in 2022 asked applicants to include
an IQ score, a New York University School of Law professor recommended
that “to avoid legal risk, companies shouldn’t rely on these tests. They
should just be talking to job applicants.”30
Companies have to worry about legal risks, but they also need to hire
competent employees and provide goods and services for prices people are
willing to pay. Because government resources are limited and everything
has a disparate impact, they are constantly pushing the envelope on what
they can get away with. Google, in its early days, famously asked potential
employees brainteasers, some of which were collected into a book called
Are You Smart Enough to Work at Google? Had the federal government
checked for disparate impact, they certainly would have found it, although
there is no indication that it ever did.
Businesses are often nimble and flexible enough to stay ahead of
government. When productivity is measured within a job, white workers are
usually found to do better than blacks, indicating that employers are
bending over backward to avoid civil rights liability, since a
nondiscriminatory process should find little difference between groups
selected for the same position.31 The diversity-validity trade-off exists
everywhere, but in the private sector, it actually is a trade-off, while
government agencies do not need to be competent to continue to maintain
their budgets and influence. What seems to be going on is that the private
sector is forced to use tools of questionable legality since the disparate
impact standard makes practically everything legally questionable. At the
same time, it protects itself from legal liability and maintains access to
government contracts through the use of soft quotas. This is similar to the
“diversity” justification used to practice affirmative action in college
admissions, where schools still use standardized tests but ensure that they
have an acceptable racial balance while pretending to do no such thing.
Government, in contrast to business, generally puts legal liability rather
than performance front and center, and hence settles the trade-off between
merit and civil rights decisively in favor of the latter.
Just as employers are forced to pursue diversity indirectly, they are
forced to pursue competence indirectly. Generally, more abstract IQ tests
are better predictors of job performance than knowledge-specific tests, yet it
is precisely the tests with the most validity that are most likely to be
targeted by civil rights bureaucrats and lawyers.32 This does not result
simply in a misallocation of resources in the labor market. Recent decades
have seen credential inflation, in which more employers require
postsecondary degrees than before, despite a lack of any clear link between
what students learn in college and the skills needed for the vast majority of
jobs.
The quality of the school one attends also matters for job opportunities.
It appears that, at least in part because civil rights law dislikes IQ tests but
allows degree requirements, employers are glad to outsource some of their
screening process to colleges and universities at taxpayer expense. Along
with government subsidies for higher education, this leads to too many
young people attending college. It has even been argued that the long arm
of civil rights law reaches into the nature of childhood. Since universities
adopt “holistic admissions standards” to select racially diverse student
bodies but are banned from relying on explicit quotas, many American
parents have increased time and money spent on ultimately pointless
extracurricular activities for their children in order to give them the best
possible chance of attending a high-ranked institution.33
Cultural Diversity and the Rise of the Miserable
Workplace
Just because standardized tests are more useful than other methods for
selecting employees does not necessarily mean that they should be
universally relied upon. In government, standardized tests have emerged as
the best method for selecting personnel because state hiring lacks a price
system through which to judge performance. Barring a revolution, a
government that performs its tasks poorly does not go out of business, and
the same is usually true even when the service an agency provides is no
longer needed. Thus the political process is forced to pick methods for
choosing, managing, and promoting personnel. There is no need to make
such decisions on behalf of the private sector, however. Moreover, it is
important to note that increasing economic productivity is not all that
matters in the labor market. Even if standardized tests maximize profits and
ultimately GDP, people have preferences regarding how they spend their
time, and they may well look for various qualities in choosing different
aspects of their workplace environment, including the people they spend
time with. This applies to both employers deciding whom to hire and
employees in determining where they work.
The same government tendency to regulate human thoughts, emotions,
and interpersonal behavior found in hiring and consumer preferences can be
seen in how government has shaped the workplace environment itself. We
usually think of cultural diversity as a concept speaking to differences
between countries or religious and ethnic communities. But there is, by
some measures, at least as much variation within nations and ethnic groups
as there is between them. Think of the “cultural” differences between a law
firm, a knitting club, a Pentecostal church in Appalachia, a motorcycle
gang, a New York City Orthodox Jewish community center, an Ivy League
university, a community college, and a fantasy football league. Each
community reflects the aggregate preferences of its members and the ways
in which they negotiate the nature and extent of their interactions with one
another. One of the main benefits of living in a free society is the ability that
individuals have to opt in to or out of various kinds of cultures, and this
goes beyond racial and religious communities. People have different
preferences regarding whether they seek environments that encourage, for
example, extraversion or reservedness, hierarchy or egalitarianism, or a
reliance on rationality or instinct.
A workplace is simply another area of life where individuals form a
community. The same arguments for letting people choose how to spend
their free time—the importance of individual liberty and the belief that
individuals know best how to manage their own lives—apply just as
strongly to work. In fact, the legal default is to allow workplaces to set their
own cultures on most things. Some corporations are conservative, enforcing
strict dress codes and traditional work hours. Others, like many Silicon
Valley giants, have relatively informal practices and norms. No one
suggests that there is a societal interest in turning Google into ExxonMobil,
or vice versa. On matters involving relations between the sexes, individuals
and communities clearly vary widely in their preferences. Virtually every
culture in human history has believed that men and women have different
strengths and weaknesses and different roles to play in society. Rarely has
anyone explained why it is this particular area of social life that has to be
standardized, and few have thought carefully about what kinds of creative
energy or sources of human joy might be lost in the process.
The best research on what makes people happy supports the idea that
we should allow more freedom in how individuals arrange their work
lives.34 In general, people are happiest when they are outdoors and moving.
They are less happy when doing chores, commuting, or working. More
passive forms of leisure like watching TV, reading, and sleeping are less
conducive to human happiness than one would expect. In a study that relied
on real-world data in which people entered their mood and what they were
doing into their phones throughout their day, out of forty activities studied,
work came in second-to-last place in how happy it made individuals, ahead
of only “sick in bed.” For most people, work is a source of misery, perhaps
by some measures the main source of misery in life, given how much time
we spend working and how little we spend lying sick in bed. One exception,
however, is when people are working with friends, which can make
something that is normally miserable into a source of joy and happiness.
In the name of equality between groups, civil rights law has sought to
“depersonalize” the American workplace. Yet research indicates that it is
the exact opposite of what we should be doing. Government should not
declare a moratorium on the “pursuit of happiness” for forty hours a week.
Civil rights law is not like safety, environmental, or health regulations.
Most world religions do not have a straightforward view of the
minimum wage or the acceptable levels of particulates of different
pollutants in the air. Yet they almost all take a position on recommending
different societal roles for men and women. Many also mandate different
standards of behavior toward co-ethnics or members of the same faith.
Private clubs, even when of a secular nature, often engage in gender
segregation. Even without a deep philosophical basis for such views, people
understand that the sexes are different, and environments made up of one
sex or the other are often natural and healthy. Without any mandates coming
from above, humans have naturally invented priesthoods, fraternities,
sororities, sports leagues, schools, bands, and countless other organizations,
clubs, and institutions that are officially or unofficially for one sex or the
other. How the sexes relate to one another when they do interact is also an
issue people have deep feelings about.
Economists differentiate between two kinds of discrimination. First is
statistical discrimination: someone judges individuals based on group
characteristics. For example, if a business is looking to hire someone who
must be trusted to count money, it might prefer a candidate from a
demographic background that has a lower crime rate, on the grounds that
the future employee is less likely to steal. The second form of
discrimination is taste-based. An individual may prefer to be surrounded by
co-ethnics, or people of one sex, and may even be willing to lose out
financially by, for example, hiring less qualified men over talented women
because they are considered better company.
Civil rights law, in theory, and usually in practice, makes both kinds of
discrimination illegal for protected categories. This leads to some strange
moral and legal outcomes. Let’s say you believe that people who wear
baseball caps are more likely to have criminal records and be prone to theft.
It would therefore be legal to simply refuse to hire anyone who shows up to
a job interview wearing a baseball cap. However, if it can be shown that a
certain race is more likely to wear baseball caps, the same practice becomes
arguably illegal. Government efforts to do away with taste-based
discrimination lead to similar absurdities. I may dislike people who are too
loud or too tall and discriminate against them, but not if my dislike of these
traits disproportionately disadvantages members of a protected class.
Height-based discrimination might even be legal in a city where the
population was made up of blacks and whites, two races that are
approximately equal in stature, but violate civil rights law in one where the
population is white and Hispanic.
The beauty of markets is that people are free to make such decisions for
themselves. As with many other things, some women like to be in an
environment that accepts sexually charged jokes, while others find it
distasteful, or even frightening and disturbing. Beyond matters of the heart,
some individuals like an environment in which they are surrounded by
different kinds of people they can learn from, while others feel more
comfortable with those like themselves. There is no justification for saying
that those who have one set of instincts on each of these questions are good
people, while those on the other side are bad and should have no ability to
act on their preferences. The bureaucrats, lawyers, and judges who brought
civil rights law to its current state managed to start from a premise that the
vast majority of Americans agreed with—that instruments of state power
should not be used to repress others—and turned it into an excuse to
micromanage people’s lives.
Since the 1960s, an elite consensus has developed that government
should not restrict the sex lives of consenting adults. From the middle of
that decade, the Supreme Court began to override the democratic process on
issues related to sex and reproduction in a libertarian direction, striking
down restrictions on birth control (Griswold v. Connecticut, 1965, and
Eisenstadt v. Baird, 1972), interracial marriage (Loving v. Virginia, 1967),
and abortion (Roe v. Wade, 1973). These cases formed the legal basis for
eventually invalidating bans on homosexual relations (Lawrence v. Texas,
9) and gay marriage (Obergefell v. Hodges, 2015). In Planned
Parenthood of Southeastern Pennsylvania v. Casey, a 1992 decision
reaffirming a woman’s right to choose, the Court famously wrote that “at
the heart of liberty is the right to define one’s own concept of existence, of
meaning, of the universe, and of the mystery of human life.” While this
principle was arguably brought under attack by Dobbs v. Jackson Women’s
Health Organization (2022), which overruled Casey along with Roe, the
majority opinion vehemently denied that it was calling into question earlier
cases based on its reasoning.35
At the same time, liberals aren’t the only ones who have had reason to
celebrate the increasing emphasis the Supreme Court has placed on
individual rights over ideas about the collective good. In Wisconsin v. Yoder
(1972), it ruled in favor of Amish parents who resisted compulsory
education laws and did not want their children to attend school past the
eighth grade. The religious freedom of parents outweighed the interests of
the state in educating the child. This decision paved the way for granting
more rights to families that wanted to homeschool their children, a practice
that used to be much more restricted and only became legal in all fifty states
in the early 1990s. As the legal scholar and philosopher Brian Leiter argues,
religion is given special status in American law, allowing people not to
comply with mandates they would otherwise be required to follow.36 While
this trend has unquestionably privileged religious belief over secular
philosophies and political convictions, it allows for more pluralism and
communities to live their lives free from government interference. Given
this context, civil rights law does something very strange. On most
questions, the American system takes a relatively laissez-faire attitude
toward the economy and the culture. Yet it also engages in social
engineering when it comes to the private sector. This is no small matter in a
society where people spend large portions of their lives at work, and often
have more contact with their coworkers than members of their own
families.
It is important to stress that, because of how broad and vague most of its
proscriptions are, civil rights law does not simply make views or attitudes
that are clearly bigoted illegal. Even conservative political views, or views
held by a majority of the population, can be problematic. For decades, polls
have shown that Americans oppose race- and sex-conscious programs in
college admissions and in the workplace.37 While one can sometimes get a
contradictory result by framing the question differently in a way that
obscures what affirmative action actually looks like, when voters have gone
to the polls to decide on such programs, they generally vote against them.
This was true even in California, a state where the voters in 2020 rejected
affirmative action in the public sector and in university admissions by a
vote of 57 percent to 43 percent.
Opposition to affirmative action is therefore about as mainstream a
position as one can find. Yet color-blindness or gender-blindness, whether
in terms of speech or practice, is illegal for major employers. Americans
who talk about politics are used to being able to debate questions such as
the causes of group differences and how much public policy should seek to
equalize outcomes between different races. In the workplace, however, the
practical impact of civil rights law can be to create an environment in which
only the left-wing position is permitted, and any employer who thinks
otherwise is opening himself up to legal liability.
Occasionally, those making and interpreting civil rights law have made
their intentions explicit. As the Sixth Circuit Court of Appeals wrote in
1988,
In essence, while Title VII does not require an employer to fire all “Archie Bunkers”
in its employ, the law does require that an employer take prompt action to prevent
such bigots from expressing their opinions in a way that abuses or offends their co-
workers. By informing people that the expression of racist or sexist attitudes in public
is unacceptable, people may eventually learn that such views are undesirable in
private, as well. Thus, Title VII may advance the goal of eliminating prejudices and
biases in our society.38
In other words, speech and conduct deemed “offensive,” defined by
courts and bureaucrats of course, is to be purged not only from the
workplace but from private life. One can debate whether this kind of social
engineering is a legitimate function of government, but what cannot be
denied is that practically no Americans thought this was what they were
signing up for in 1964.
Civil rights law legitimizes some identities while delegitimizing others.
It therefore pretends to speak for the powerless and marginalized, even
when it is clear that its protection of groups and its division and
classification of individuals are products of political processes. For
example, characteristics of Asperger’s syndrome include a naive concern
with truth and a poor ability to read social cues. Of course, people with this
disorder should have no more right to make others uncomfortable than
should homosexuals, and in the labor market, we might expect Asperger’s
to be selected against. Yet one could imagine the traits associated with the
disorder being a net positive under some circumstances, as it may immunize
an individual against groupthink and allow him to see certain truths that
others are better at avoiding. In 2021, Elon Musk told the world that he was
“on the spectrum,” which appears to have contributed to his success. It is
not the place of the government to either favor or place obstacles in the way
of people with Asperger’s syndrome. No state is wise enough to understand
in what contexts the traits associated with that condition are beneficial for
society, and when they cause too much distress or disruption to be tolerated.
Markets and private institutions making the best decisions for themselves
and those they interact with, free from government interference, should be
the mechanisms for figuring such things out.
A thought experiment can show the absurdity of government attempts at
social engineering. Courts have ruled that sex stereotypes can be a form of
discrimination on the job. A woman who acts too “masculine” by arguing
with her colleagues and interrupting them during meetings cannot be
“discriminated” against based on these behaviors, at least if they would be
more acceptable in a man. But if a woman acts too “feminine” for a
workplace—say, if she is considered too nice and passive to manage
employees—and is not promoted for that reason, she has no legal recourse.
In other words, the government maintains that defending masculine
behavior in women is something worth restricting freedom for; it does not
adopt a similar paternalistic role for women more generally. A woman who
has too feminine a demeanor for her employer’s liking might have a
disparate impact claim, if anything, though here a business necessity
defense would be available. It would not be available if an employer fired
the masculine woman.
Practically, of course, trusting courts and bureaucrats to make such
determinations requires them to have unrealistically high levels of
information and discernment. In the real world, if a woman says that she
was fired for behaving in a traditionally masculine manner, few employers
are likely to respond that they would have tolerated her behavior up to a
certain level, but that she was acting so obnoxiously that they would have
also fired her had she been a man. One would have to prove to social
engineers the level of masculine behavior that a workplace finds acceptable
in men, and show that this woman crossed that threshold. How does one
prove such things? In effect, firms in many cases must end up placing limits
on traits associated with extreme masculinity among men, while
encouraging them among women.
Are the above ruminations absurd? If so, it is only because civil rights
law itself is absurd—extreme in the extent to which it limits freedom; the
power it puts into the hands of judges and unelected bureaucrats; and the
trust it puts in their judgments. Human relations are complex, so much so
that, according to the social brain hypothesis, the reason we have such high
levels of cognitive ability in the first place is because intelligence is
necessary to navigate and manage our social relations.39 Within any
relationship between two individuals, there are subtleties and subtexts that
will escape even the closest observer, and often the participants themselves.
Critics of television shows, movies, and literature can have a panoramic
view of what happens in a scene and what came before it and nonetheless
spend hours debating the motivations that led to a particular action. As the
number of relevant actors in an institution grows, the number of dyads, and
therefore the complexity of the system, increases exponentially. Our large
brains have evolved to navigate the social world, mostly without explicit
rules about appropriate standards or behavior. Religious traditions and
bottom-up social institutions provide order amid chaos. They work because
guidelines emerge organically and have withstood the test of time.
Civil rights law has the ambition of religion, without benefit of the right
to exit, and without having competed with other systems of societal
organization and having proved more functional than them. It constructs
and shapes racial identities, has ideal types of each gender it tries to mold
into being, and claims jurisdiction over a potentially unlimited range of
speech, thought, and behavior. All the while, it is of a fundamentally
dishonest character. It speaks of equal treatment but requires different
treatment of various groups; justifies itself as temporary and limited even as
it has become permanent and expansive; and claims to be based in the rule
of law while creating subjective and ever-changing standards.
The End of Creative Destruction in Personnel
Management and Institution-Building
The problem with social engineering goes even deeper than the fact that
there is nothing inherently illegitimate about allowing individuals to indulge
in certain forms of taste-based discrimination. For on what basis can we be
sure that the most productive economy is not one where people can seek
their happiness to the greatest possible extent in how they organize their
private relations? Industrial-organizational psychologists may measure what
predicts the productivity of worker A versus worker B, but they have no
tools with which to foresee the kinds of environments and institutions that
would emerge under a system that allowed complete freedom of
association.
Humanity generally does not advance through central planning, or
because some wise individuals foresaw the best ways to organize our affairs
and then put their plan into action. Most exceptions to this rule that have
ended relatively well, like the American Revolution, involved individuals
creating a system that refrained from central planning and instead allowed
scientific, technical, and economic progress to result from decentralized
processes of information and preference aggregation. By setting the rules
and largely leaving individuals and institutions to make their own decisions
about the best ways in which to cooperate with others, well-functioning
governments help facilitate growth. This requires what the economist
Joseph Schumpeter called “creative destruction,” which he defined as the
“process of industrial mutation … that incessantly revolutionizes the
economic structure from within, incessantly destroying the old one,
incessantly creating a new one.”40
It is easy enough to understand the concept of creative destruction in a
narrow sense. One business sells widget A, another sells widget B, and the
firm with the better or more affordable product outcompetes its rival. In
practical terms, the benefits of the free markets are much more extensive.
Each individual who is taking an active role in commerce has an endless
number of decisions to make. At what scale should a firm exist? If one does
have employees, how does one motivate them to put forth their best efforts?
What image should the individual or company providing a good or service
present to the world? Reasonable minds can differ on all of these questions,
and many others, and the answer to each of them will depend on factors
such as the technical requirements necessary to provide the good or service
and the local market in which the firm is operating.
Capitalism does not guarantee optimal societal outcomes—such a thing
is too much to hope for. But it aggregates information in a way like no other
process on earth, and produces a result that, if not perfect, continuously
builds on previous improvements and makes people’s lives better.
This is why the standardization of the American workplace that resulted
from civil rights law has likely had such disastrous effects on productivity.
A series of practices, such as structured interviews, the deemphasizing of
tests, and HR departments managing social relations did not emerge
necessarily because they reflected the best ways to run a business. Rather,
they emerged as a compromise between market pressures that reward
productivity and aggregate human preferences, on the one hand, and
arbitrary government fiats aimed at achieving demographic parity while
hiding what they are doing, on the other.
In addition to issues related to economic efficiency, the practice of
social engineering, as alluded to above, also prevents the culture from
developing in organic ways that reflect the underlying preferences of
individuals. The discussion thus far has drawn a line between economic
productivity and taste-based discrimination. In reality, however, the two
must be balanced, and we have no way to do so other than through markets.
If women and non-whites have something to contribute in a market
economy—and they of course do—then it is overly simplistic to believe
that they have no bargaining power in their interactions with white men. At
some point, discrimination against a particular group presents an incentive
to hire them, and the market will be constantly selecting against taste-based
prejudice.41
Private-sector discrimination may unfairly harm some groups, but there
is a limit to the extent to which that can happen in a free market.
Through civil rights law, government still allows individuals to live how
they want in the private sphere, but the space of the private sphere has been
shrinking. One can choose one’s spouse, friends, and fellow church
members based on any criteria one wants, but not one’s coworkers,
employees, neighbors, or even, in some cases, roommates. Yet work is not
simply a place to make money, and it should not be turned into a sanitized
environment in which the only possible values are efficiency and treating
people fairly based on a few arbitrarily chosen dimensions. Government is
not wise enough to know the best ways to produce manufactured goods and
get them to the consumer. Why do we believe that it has the wisdom to
regulate no less complicated issues related to friendship, humor, and
romance?
Many religious believers consider how they behave in their work lives
to be part of their faith, not separate from it. In Burwell v. Hobby Lobby
Stores (2014), the Supreme Court held that a private corporation could
refuse to provide contraception for employees on religious grounds. While
this was the right decision, the fact that the case was decided by a 5–4 vote,
the narrowest of margins, shows the extent to which those with minority
religious views face an uphill struggle in living their faith in their day-to-
day lives. Our Lady of Guadalupe School v. Morrissey-Berru (2020) was
another victory for religious freedom, as the Court found that the
protections that religious institutions have against anti-discrimination laws
go beyond a narrowly defined “ministerial exception,” and also apply to
other employees, in this case those given the job of teaching the faith to
children. Yet if there are some relatively robust defenses against the
application of anti-discrimination laws for the religious, those with secular
political views have practically no right to freedom of association at the
workplace when the principle collides with the supposed rights of protected
groups.
Civil rights law is killing experimentation at work, with implications for
the rest of life. As a matter of simple logic, more diversity within
institutions will lead to less diversity between them.
Younger generations are less likely to marry or have children, and there
is a gap between how many kids people want and how many they end up
having. Americans have fewer close friends than they have had in the past,
and many journalists and scholars have talked of an “epidemic of
loneliness.”42 There are good reasons to doubt that governments can
provide meaning to most people, and when they have tried, the results have
often proved disastrous. Political power and the search for spiritual meaning
are a dangerous combination, and one of the recurring ideas of the
Enlightenment is that they should be kept apart.
Yet while the state shouldn’t, and likely can’t, cure what appear to be
many of the pathologies of modern life, it can at least get out of the way.
Under a legal system that allowed more institutional diversity, it is not
difficult to imagine firms taking a more laid-back approach to how
employees interact with one another, or even deciding to take steps to
actively facilitate the forming of personal relationships. If individuals
forming communities with others like themselves is legally suspect, civil
rights law can be seen as taking away what for many people might be a
deep source of meaning.
Even larger and more diverse firms have lost the ability to experiment
and innovate in the area of interpersonal relations. In late 2021, the New
York Times ran a piece about “ice-breaking activities” at the Chinese tech
giant Alibaba, which included uncomfortable questions about one’s sexual
history.43 Such practices would be all but unthinkable in the American
context given the state of civil rights law, and the reporters writing about
Alibaba appeared to judge the company by those standards. Still, one of the
strengths of American society has traditionally been its willingness to allow
experimentation in the ways in which people live. While Americans still
have more freedom than the Chinese in their personal lives, as soon as they
participate in commerce, we see social engineering that, in many ways,
goes further than almost anything employed by most authoritarian regimes.
Civil rights law may explain why American culture portrays corporate
life as dreary, lonely, and often leading to existential crisis. TV series like
The Office and Severance, along with films like Office Space, have been
enjoyed by millions because they speak to the experiences of many
Americans. The white-collar workplace is portrayed as an environment
where employees are hired as replaceable widgets, with interpersonal
chemistry nonexistent. It may be of little surprise, then, that in one study
published in the Harvard Business Review of readers surveyed in eight
regions of the world, those responding in North America were least likely to
say that their organization emphasized “enjoyment” as one of its top two
most important cultural traits.44
A more sanitized corporate environment would still be possible even in
the absence of civil rights law. Yet what current law does is take late-
twentieth-century elite cultural attitudes and assumptions about the nature
of work and make them permanent, though with occasional updates based
on new theories put forth by the academy. Among these assumptions that
are frozen in place are the ideas that work should be completely separate
from all other areas of life; that it should have nothing to do with building
relationships with others; that one must surrender free speech and freedom
of association to participate in commerce; and that different kinds of
businesses should be siloed, without new kinds of institutions and
arrangements being allowed to develop. In a society that allowed
institutional pluralism, one could imagine organizations that combined
aspects of a church, a social club, a matchmaking service, and a traditional
business. That is all but impossible now.
If individuals desire a sexless, androgynous, and sanitized workplace
free of anything that might cause offense, the market will create such
spaces. But as things stand, if such institutions are contrary to human nature
and as miserable as happiness surveys suggest and how they are portrayed
in pop culture, we have no corrective mechanisms. Civil rights law, with its
expansive definition of “discrimination” and social engineering with regard
to personal relationships, does not allow institutions to opt out, except in the
case of religious exemptions. We are therefore stuck with stagnant
institutions that micromanage the thoughts, relationships, and personal
conduct of hundreds of millions of Americans.
Civil Rights Law Is Why We Hate Each Other
The United States is experiencing historically high levels of “affective
polarization,” the term political scientists use to describe the phenomenon
of different political factions disliking one another. A 2020 study found that
out of twelve developed countries, the US had both the highest level of
affective polarization and the greatest increase over the past thirty years.45
Various theories have emerged about why we hate each other so much, with
the most convincing having their roots in a more fragmented media
landscape and the growing trend of individuals becoming more likely to
collapse various forms of identity along a single dimension.46
Political analysts on the left often blame polarization on “white
resentment,” arguing that whites, and particularly white men, feel
threatened by their loss of status and are irrationally angry at justifiable
calls for equality.47 This is often combined with a psychosocial theory
wherein rich people create false consciousness among the masses in order
to distract them from their true economic interests and thereby cause them,
for instance, to vote for policies that benefit the wealthy. One problem with
this theory is that during the period in recent history when racial issues were
most salient in our politics, the country was overwhelmingly united. Just a
few months after the passage of the Civil Rights Act, Americans approved
of the bill by an overwhelming margin and in November 1964 gave Lyndon
Johnson the largest share of the popular vote received by any candidate
since 1820, as the Democrats gained thirty-seven seats in the House and
two in the Senate. Clearly, white Americans were not opposed to any
attempts to improve the situation of blacks. The Civil Rights Act was
framed as a bill that would primarily end Jim Crow and ensure
nondiscrimination in employment without creating quotas or forcing the
hiring of less qualified individuals based on their background. This was
seen by most Americans as eminently sensible.
Yet the election of 1964 was the last we would have without the cultural
cleavages that are recognizable to us today.48 Very quickly, it became clear
that there was a large gap between what the Civil Rights Act of 1964
promised and how it would be interpreted. In less than a decade, the federal
government would be forcing school busing, looking for discrimination
through the lens of disparate impact, and mandating “goals” and
“timetables,” while still claiming to forbid quotas. The broad
reinterpretation of the CRA was not the only thing that shifted the country
to the right. Political elites claimed to have new solutions to old problems
surrounding issues like discrimination and crime, yet when they took
federal action consistent with their theories, social indicators appeared to
get worse. The mid-1960s saw the start of explosions in crime, drug use,
and illegitimacy, with numbers today having come down from their peak in
some of these areas but still looking unfavorable relative to America before
the Johnson administration. The American people responded to increasing
crime and disorder, along with the bait and switch of civil rights law, by
giving Republicans the presidency in five out of the next six presidential
elections beginning in 1968, with the only Democratic interruption being
one term in the aftermath of Watergate.
If we are going to look for polarization as caused by one or a small
number of factors, civil rights law is a good place to start. Political
scientists have reached something of a consensus: American politics are
driven by racial and cultural attitudes, which are, as a general matter, better
predictors of political and partisan affiliation than economic circumstances
or views on other topics.49 Due to the political biases of most academics,
these findings are interpreted to mean that, for example, conservatives are
simply more racist than liberals, with scholars often providing a definition
of “racism” that corresponds to conservative positions and arguments.50
Nonetheless, even if the interpretation of the data by academics has,
ironically enough, shown a political bias, the results themselves are
indisputable, and they tell us that racial attitudes—and cultural attitudes
more generally—are of fundamental importance in determining how
Americans divide themselves politically, and shifts in party affiliation over
time.51
Given US history, and the largely united front in favor of civil rights law
among major institutions, white Americans have been more likely to favor
discrimination against their own group than perhaps any other people in the
world. That doesn’t mean that they like it. From the earliest days of
affirmative action, during the first term of the Nixon administration,
supporters of such policies in Congress and the executive branch have
worked carefully to avoid direct votes on the topic.52 More recently, the
website Ballotpedia lists nine instances of affirmative action being put to a
state referendum between 1996 and 2020, and it has been rejected eight of
those times, including twice each in the liberal states of California and
Washington.53
Dishonesty is poison to political discourse. Those on the left are able to
understand this when they see lies on the other side. The rise of Trump and
his style of politics in the Republican Party has been accompanied by
liberal denunciations of the “post-truth” atmosphere that has taken over the
political right. When a president falsely says, for example, that he had a
larger inauguration crowd than his predecessor, or that he actually won an
election that he lost, there is a widespread understanding that blatant lies
make honest discourse impossible, and ultimately harm the kinds of
deliberation and debate on which democracy ultimately depends.
Yet the left has failed to grapple with the harmful effects of the lies of
their own side, in part because the dishonesty is wrapped in packaging that
is more presentable and also superficially resembles dispassionate academic
or legal analysis. It is one thing to discriminate against a group; it is another
to do so while professing the exact opposite principle. The “EEO Is the
Law” poster that a firm is required to place in a conspicuous place informs
its workers, among other things, that “Executive Order 11246, as amended,
prohibits job discrimination on the basis of race, color, religion, sex or
national origin, and requires affirmative action to ensure equality of
opportunity in all aspects of employment.”54
In other words, major American institutions are required to declare
within the same sentence both that they do not discriminate and that they
practice affirmative action. Americans know that almost every time they
apply to a school or for a job, they have to check a box to indicate their sex
and race, and that checking white or male is almost always a hindrance in
the process. One may doubt the wisdom of the average voter, but she is not
so blind as to be unable to see that she lives under a regime that doles out
rewards and punishment based on sex and ancestry, while disclaiming any
such role for itself and always being hypersensitive to the point of absurdity
in trying to ferret out “racism” and “sexism” against different targets.
On this point, the liberal columnist Jonathan Chait has written about
how “the left is gaslighting Asian Americans about college admissions.”55
He notes that elite universities use soft quotas because they do not want
their schools to become too Asian, but have built an elaborate system of
admissions on the false premise that they do no such thing. Chait is right,
but he does not go far enough, as the entire affirmative action system is
built on lies, including when it discriminates against white people.
Institutions that talk about the need for diversity in practice define the
concept as balancing according to US Census categories that have only a
tenuous relationship to social reality, while not showing any concern about
increasing the number of individuals with underrepresented viewpoints held
by conservatives.
Racial preferences were originally presented as temporary expedients,
yet their supporters do not seem to want to phase them out. Nor do they
seem even to wish to provide a road map for doing so. Meanwhile, the
category of preferred groups has come to include those with no substantial
history of being discriminated against in the United States. And while the
system claims to do all of this in the name of merit, objective standards like
cognitive tests are not allowed, to be replaced by subjective criteria
designed to achieve the goal of racial balancing.
It is worth thinking about how Trumpian lies and those of the civil
rights regime are different, and how they interact with one another. For half
a century, Americans have seen a clear disconnect between what elites and
the institutions they control say about divisive issues relating to race and
sex and what they actually do. The entire system is propped up by networks
of politicians, activists, academics, and journalists who can always be
counted on to either ignore inconvenient facts or justify the current system
in ways that cannot possibly fool even the least sophisticated among us, no
matter how impressive the credentials of those making the arguments are.
Can anyone say with certainty that lies like this are less harmful to social
trust and democratic deliberation than misrepresenting the crowd size at an
inauguration?
The shift to a “post-truth world” long predated Trump. He was the
product of a system in which many Americans had come to see elites as
dishonest pseudo-experts who hide behind credentials and scientism to push
a political agenda hostile to people like themselves. Some have argued that
Trumpian lies play a social role in binding the right—that by expressing
belief in falsehoods that are clearly absurd, followers of the former
president show their loyalty to him.56 They have failed to notice that the
same can be said regarding lies couched in legalese or academic jargon.
Trumpian lies at least make clear the rules of the game and delineate the
sides. They at the very least do not insult anyone’s intelligence through
obfuscation.
One might hold that racial set-asides and preferences are a way to
achieve social peace, even if they cannot be justified constitutionally or
through an honest argument that would be found convincing by the broad
public. There are a few problems with this view. First, there is little
evidence that we gain social peace from the lies that surround civil rights
law. In fact, American inner cities started erupting in riots in the mid-1960s
after the greatest burst of civil rights legislation in the history of the nation.
This famously puzzled President Johnson, although it did not cause him to
rethink his premise that racial preferences help maintain public order. By
the end of his presidency, he had gone from advocating nondiscrimination
to brow-beating business executives into giving advantages to blacks in
hiring on the grounds that doing so would prevent riots in the future.57
Nixon accepted similar logic when he launched his “black capitalism”
program in response to the urban race riots of the late 1960s.58 Urban
violence did not decrease with the rise of racial preferences and reverse
discrimination but actually increased. While one cannot say for certain that
things would not have been worse under a color-blind regime, this is at least
some evidence against the theory that poverty and discrimination are the
“root causes” of violence. Thomas Sowell’s study of affirmative action
across the world shows racial preferences to consistently be a source of
intergroup tensions.59
Second, if “white lies” are necessary, it defeats the purpose if those lies
are not believable. Despite the fact that voters are often ignorant of policy
specifics, the lies told to justify affirmative action and civil rights law more
generally are so blatant that even the least-informed citizen can see that
there is a gulf between the words used by elites and the practices that they
mandate. Finally, the social peace theory does not even try to explain why
preferences have been expanded to women and other groups without
histories of engaging in large-scale violence.
White lies might be desirable or necessary in some circumstances, but
we should never begin with the assumption that they are in any particular
case, particularly when they are used to justify a policy that has much to
answer for. While slavery and Jim Crow were evils that government needed
to take strong action to stamp out, there is little reason to believe that
government can eliminate disparate outcomes. That entirely predictable
failure then angers both those who were promised results and those who
never bought into the social engineering project.
The Right That Ate All Others
Strenuous social engineering and a complex web of lies have fundamentally
transformed American society. Critics of civil rights law have wisely
pointed out that a system of preferences and quotas hurts all of us because it
puts less competent people in positions of power and influence. Yet they
generally underestimate the damage, since the science on the predictive
validity of tests that measure general intelligence is not very well known. It
is the strengths of such tests—the fact that they provide clear, consistent,
and unambiguous rankings of ability—that make them suspect under civil
rights law.
We’ve all had the experience of seeing a couple that fights over seeming
trivialities, and realizing that they have much more serious problems that
they have decided to suppress rather than deal with honestly. A marriage
that decides to live with a big lie that both parties know is false is
fundamentally unhealthy. The same is true of societies. American
conservatives and liberals are like a couple that is always fighting about
surface-level issues while burying the true sources of their disagreements,
which leads to growing contempt for each another.
Civil rights law declares some practices related to sex and race
unacceptable and others mandatory, restricting personal freedom and
harming economic efficiency. It prevents creative destruction in the
economic and social realms and taste-based discrimination, while making
life more difficult for certain “unofficial minorities,” including the neuro-
atypical, the socially inept, the highly religious, and the hypermasculine. By
championing certain ideals of womanhood, controversial academic
concepts surrounding gender identity, and a bureaucratic and arbitrary
system of racial coexistence, the state moves away from being a neutral
arbiter in disputes between citizens or even a vehicle for seeking the
common good and toward social engineering. Civil rights law can be
blamed for hyperpoliticization, as issues that should be negotiated and
settled locally and through the democratic process are decided far from
public view, creating a sense of hopelessness and anger among those on the
losing side.
It is difficult to think of a bedrock principle of liberal democracy that is
not at odds with civil rights law as practiced since the late 1960s. A partial
list would include freedom of speech; freedom of association; the right to
private property; and the belief that government gains its legitimacy from
the consent of the people. Similarly, capitalism is justified based on the
principles that people have heterogeneous preferences; creative destruction
is necessary for social progress and technological advancement; and
government has neither enough information nor the right incentives to
engage in central planning. When it comes to civil rights law, all of this is
thrown out the window. Individuals are assumed to be homogeneous, or
they need to be made homogeneous, when it comes to everything from how
they choose their associates to what kinds of jokes they tell. Systems of
personnel management and human relations are standardized across
industries and nearly all of economic life. Civil rights law gives all of this
power to a government that practically every knowledgeable observer
agrees should not be setting prices or guiding industry as a general matter.
The system is not only based on lies. It is also based on meta-lies: that
is, lies about lies. Proponents of civil rights law are not only being dishonest
when they, for example, say that they support affirmative action but not
quotas, or that they are seeking a critical mass of a minority group for
diversity purposes instead of racial balance based on census categories. The
system also lies when it claims its original lies are necessary for social
peace, or even that certain policies actually have a purpose instead of being
the result of bureaucratic inertia and the efforts of a small and
unrepresentative number of activists within and outside government. For
the sake of progress and overall societal health, the premises that underlie
this entire regime must be brought out of the shadows and rejected in the
political and legal arenas.
Chapter 6
Republicans and Civil Rights Law
Up until now, this book has skated over a puzzle that has been mostly only
hinted at. Current interpretations of civil rights law are massively
unpopular. Moreover, most of the post-1964 innovations are based on
actions taken by the executive branch and the judiciary, but Republicans
have held the presidency for most of that period. Since 2000 alone, the
Republicans have had unified control of government in three Congresses
(108th, 109th, and 115th), and parts of a fourth (107th). Yet mandatory
racial classification and ethnic and gender bean counting are still standard
parts of American life, as is overbroad harassment law that micromanages
social relations. Republicans in power have only made at best marginal
changes to the status quo. At worst, as during the administrations of Nixon
and the elder Bush, they have pushed the civil rights regime further than
their Democratic predecessors had.
Given that championing an anti-woke policy agenda should unite
Republicans and also put them on the right side of public opinion, why have
they done so little?
There have been three eras that reflect different Republican approaches
to civil rights. First was 1964–1980, when conservative politicians spoke to
the fears and concerns of the majority of Americans on civil rights excesses
but allowed government bureaucracy to move forward on issues such as
disparate impact and consent decrees that mandated racial balancing. This is
because Republican elites, while willing to appeal to cultural grievances to
win elections, were far from antagonistic to the civil rights establishment
and often intimidated by a hostile media landscape. This changed with the
election of Ronald Reagan in 1980. From 1981 to 2008, we saw the second
era, one in which Democrats continued to be completely united on civil
rights law while the other side was split. Reagan and those around him did
more to push back on civil rights law than any other president since the
1960s, but disagreements within his cabinet and resistance in Congress
prevented him from taking decisive action. The administration of George H.
W. Bush spoke out against “quotas” but capitulated to a Democratic
Congress and signed the Civil Rights Acts of 1991 while actively
supporting the Americans with Disabilities Act (ADA). His son would sign
a bill in 2008 expanding the definition of “disability” under the ADA.
After the 2008 election, we started to see the culmination of decades of
political sorting and elite polarization as conservatives took charge of the
Republican Party. On a wide range of issues—including guns, abortion
rights, and environmental regulations—Republican officials moved to the
right. Yet civil rights law simply fell off the radar. Conservatives grew
increasingly concerned with wokeness as a cultural phenomenon while
ignoring its origins in policy. This coincided with a rise in education
polarization, wherein a disproportionate share of college graduates,
particularly elites, identify as Democrats. Fewer conservatives were
interested in the mechanics of government, or well-versed in the topic. Had
the right had a debate on civil rights law during this era, surely the more
conservative wing of the party would have won, as it has on nearly all
social issues, but the topic was simply neglected. Republicans in the 2016
election fell in love with Trump in part because he made liberals angry, but
he was the only major GOP candidate to express support for affirmative
action. Once Trump was in office, however, we saw the effects of the
conservative takeover of the American right. The administration did push
back in areas like Title IX sexual assault tribunals, overturning the previous
administration’s push to mandate gender theory in the nation’s schools,
investigating colleges for anti-white discrimination, scaling back EEOC
enforcement, and, near the end, clamping down on critical race theory
trainings in the federal government. Yet the lack of focus on civil rights
issues ensured that there would be no major legislation in the area passed
when Republicans had unified control of government, nor even many
fundamental shifts in the regulations made by the executive branch that
would not end up being undone by the next administration.
I call these three eras of Republican civil rights policy Bipartisan Cartel,
Republicans Divided, and Conservative Neglect. With liberal elites having
been sorted out of the party, an assault on civil rights excesses can be the
issue that unites Republicans into a fourth era, leading to electoral success
and shifting the culture in a more conservative direction. Numerous factors
that have stopped this from happening before are no longer in play.
The economist Robin Hanson asks us to imagine political debate as a
tug-of-war, with each side pulling on one side of the rope. If one wants to
have an unusually high level of influence, the best strategy is to pull the
rope sideways—that is, take a position not clearly aligned with either side
of the political spectrum.1 The argument for the effectiveness of this
approach seems to be consistent with the idea of the “Secret Congress”
theory.2 While Republicans and Democrats strenuously debate high-profile
issues and find it difficult to compromise on them when voters and activists
are actually paying attention, below the surface much in Washington keeps
getting done. Understanding this should encourage activists to seek to
depoliticize their issue of concern in most cases. One is in a better position
to successfully advocate for a position if one arranges to have it seen as an
issue of “good governance,” “health,” or “safety” rather than as a litmus test
of the right or left. Often it is better to not have one’s pet cause be given
much attention at all, because the second a policy program is exposed to the
light of our contentious politics, polarization begins to play a major role in
shaping the debate surrounding it, which can be fatal in a system like ours
with a large number of veto points.
While “pull sideways” is in most cases good advice when one is
introducing a relatively new issue, it provides less guidance when a policy
area has already been polarized or is at the heart of the differences between
the two major American coalitions. There is no hope of depoliticizing
abortion or gun rights, for example, at least at the national level. Wokeness
is an animating concern on both sides of the political aisle. There are
liberals who have come to see propositions such as “men can become
pregnant” and “the US is a white supremacist nation” as scientific truths
that can only be denied due to irrational prejudice or a hostility to
democracy itself.
Conservatives perceive the growing acceptance of these ideas in elite
institutions as the clearest sign we have of a world gone mad. For this
reason, I don’t believe I would have been able to write a book like this
directed to policymakers on both sides of the political aisle. It would have
been naive to try, and ultimately would have made the work less effective in
accomplishing its goals. While intellectuals on both the right and left can
benefit from the historical, legal, and bureaucratic analyses provided in
these chapters, the current state of our politics and an understanding of the
issues around which our two great political coalitions have formed indicate
that, to the extent to which it is read as a practical guide, this work will be
useful mostly to conservatives and Republicans.
The New Right and the Establishment Can Unite on
Civil Rights Law
In a two-party system, if one party wants to enact a policy program, it must
be internally united. Today the main intellectual fracture within the
Republican Party is generally seen as one splitting the new right, animated
by populism and concern with controlling institutions, and the
establishment, with its commitment to the more libertarian-leaning
philosophy of Ronald Reagan and his successors. This divide can be seen in
the debate over “David French-ism” that broke out in May 2019, when the
conservative writer Sohrab Ahmari attacked his fellow pundit for placing
individual liberty and respect for gradual change within institutions above
all else, and not taking seriously enough the cultural threats that
conservatives face from a variety of private and public institutions.3
To members of the new right, represented most clearly at the
institutional level by the Claremont Institute, the Reaganite consensus is
what led us here. Republicans have done little more than mouth outdated
platitudes about “freedom” and “small government” as the culture shifts
under their feet and everything they believe in is destroyed. They point out
that government is not the only possible threat to the common good or
things conservatives care about: social media companies censor their views;
they are cut off from supposedly neutral payment-processing platforms; and
large corporations force individuals to go through humiliating training
programs that attack individuals based on their race and sex. All of this has
supposedly shown that mainstream conservativism, its adherents
brainwashed by decades-old dogma, is insufficient to deal with modern
problems.
To libertarians and many members of the Republican establishment—
even those who share many of the cultural concerns of the populists—this
kind of talk is dangerous. They wisely point out that government cannot
solve every problem. The Constitution and American federalism do not
allow rapid and wholesale social transformation from the top; if they did,
that might well be to the benefit of the left, whose ideas dominate among
the federal bureaucracy, the activist class, and the legal profession.4 Critics
of the new right are further able to point out that many of the ideas that
populists put forth do not seem to have anything to do with their underlying
concerns. For example, many conservatives are angry at social media
censorship and have therefore embraced breaking up big tech companies on
antitrust grounds. Yet a more decentralized internet is not guaranteed to be
any freer than what we have now; after all, universities are decentralized,
and conservatives never stop talking about their high levels of repression
and left-wing bias.5
Despite the seeming intractability of these debates, if the arguments put
forth in this book are correct, then conservatives do not have to choose
between adhering to principles of small government and pushing back on
destructive forces that are harming society, at least when it comes to
fighting back against wokeness. Wokeness is government policy. The state
orders private corporations to classify their employees by race and sex, tells
them how much and what kinds of aesthetic pleasure customers are allowed
to derive from their goods and services, and regulates humor and dating.
Not only does it mandate nondiscrimination against protected classes, but it
defines this as requiring discrimination against the non-protected. For a
Reaganite or libertarian, using government power to roll back the excesses
of civil rights law is no more philosophically problematic than reducing
environmental regulations or lowering taxes. Doing so is not only
something libertarians shouldn’t feel uncomfortable about, it is something
they should actively support.
For this reason, libertarian-leaning Republicans have for decades
warned about the excesses of civil rights law. Barry Goldwater’s
nomination was seen as the first triumph for movement conservatism in
presidential politics. In his Senate speech on why he was opposing the Civil
Rights Act, he affirmed that, while he had been willing to support a bill that
ended government-sponsored discrimination in the form of Jim Crow, bans
on private discrimination would create “an ‘informer’ psychology in great
areas of our national life—neighbors spying on neighbors, worker spying
on workers, businessmen spying on businessmen, where those who would
harass their fellow citizens for selfish and narrow purposes will have ample
inducement to do so.” The powers that government was claiming and the
psychological features that it relied on were “landmarks in the destruction
of a free society.”6 The provisions of the CRA relating to employment and
public accommodations in particular would “require for their effective
execution the creation of a police state.” Goldwater was correct on that
point, even if the creation of the bureaucratic army he foresaw developing
was largely outsourced to the private sector in the form of human resource
managers and trial lawyers. There, the enforcers of the law could earn much
more money than it was possible to earn in government service.
As discussed below, Ronald Reagan himself, the bogeyman of much of
the new right, did much more than any other Republican president in recent
history to push back against civil rights law. Nationalists, libertarians, and
members of the traditional Republican establishment may debate free trade,
immigration, or foreign policy, but on opposition to wokeness they should
be united in a common goal. The next time Republicans have unified
control of government, rolling back the excesses of civil rights law should
be near the top of their agenda, before leaders move on to issues that are
potentially more divisive within the party.
Not only does the war on wokeness unite the conservative movement
internally, but it is good for winning over larger swaths of the public. As
mentioned in the previous chapter, almost every time affirmative action has
been on the ballot it has lost. What makes these results all the more
impressive is that the pro–affirmative action side is often much better
funded and has the support of prestigious and powerful institutions. In
2020, when affirmative action was on the ballot in California, the state was
37 percent white, and Biden got 63.5 percent of the vote, giving him a
margin of 29.2 percent over Trump. The side in favor of racial preferences
outspent the opposition by 19 to 1 and could count among its ranks,
according to the Associated Press, the “chambers of commerce, tech
companies, sports teams and Democratic leaders.”7 The other side was
“fueled by smaller donations from a grassroots network that included
Chinese immigrants.” In 2021, Blue Rose Research surveyed 113
Democratic policy positions and found affirmative action to be the second
most unpopular.8 More recently, a different firm conducted a survey of
Democratic voters in which they were asked to choose their three most
important issues for Biden and Congress to pass legislation on. Structural
inequality, in the form of aid targeted at minority communities, came in last
place.9
Framing the topic in other ways can lead to different results. If
respondents are asked about “affirmative action programs” or how they feel
about “ensuring nondiscrimination,” polls often indicate majority support.10
This is an old trick in polling: a question is presented as a binary choice
with no downside, and one gets a predetermined result. For example, a
pollster may ask whether people want to protect the environment, without
mentioning that this may require higher gasoline costs. A better question
would indicate the trade-offs involved. When Americans are given
information about what modern civil rights law actually looks like, they
recoil. For example, between 1977 and 1989 Gallup asked Americans
whether “women and minorities should be given preferential treatment in
getting jobs and places in college” or if “ability, as determined by test
scores, should be the main consideration.” In each of four polls, Americans
favored ability as determined by test scores by over an 8-to-1 margin.11
Ballot initiatives require clarity about what is or isn’t allowed, which is why
affirmative action performs poorly when put to a direct vote.
Polls and ballots may still underestimate just how unpopular civil rights
law would be if people had a better understanding of how it works. It is not
simply that blacks and women are given “preferences” in jobs; rather,
nearly every aspect of hiring, promotion, and behavior in the workplace is
regulated in the name of anti-discrimination. How would Americans vote in
a referendum on whether the government should be able to regulate jokes or
the expression of political and religious views in the private sector? A more
honest conversation about topics like disparate impact, sexual harassment
law, and affirmative action would mostly benefit conservatives.
Three Eras
On many issues, conservative principles lead Republicans to champion
positions that are unpopular, like entitlement reform. In contrast, when
conservatives have principles that put them on the right side of public
opinion on a particular cause, they should be expected to raise the salience
of the issue. In the 2004 election, when most Americans still opposed gay
marriage, Republicans worked to put the issue on the ballot in multiple
states, with pundits later speculating that it helped George W. Bush’s
reelection effort by turning out more conservative voters.12 Quotas in one
form or another have been central to liberal governance since soon after the
passage of the Civil Rights Act, yet Republicans have talked less about the
topic than one might expect throughout the decades, and have completely
ignored the issue since the early 2000s. As little as they have talked about
civil rights excesses, they have done even less. To understand the
conservative movement and its relationship with civil rights law, it is worth
looking at developments in each of the three eras outlined above. The
dynamics of each have been determined by the state of communications
technology at the time, and by the level of policy maturity within the
movement.
Bipartisan Cartel, 1964–1980
After the Great Society, conservatives spent a decade and a half going
along with, and in some cases actually being the force behind, innovations
in civil rights law. The Nixon administration, along with Republicans in
Congress, helped institutionalize racial preferences, lower standards for
proving discrimination, and make women and designated categories of non-
whites more analogous to blacks, in what John Skrentny calls the “minority
rights revolution.” This was far from inevitable. Although Goldwater
electorally went down in flames, something close to his vision of
conservatism ultimately triumphed. Given the backlash to the excesses of
civil rights law among the general public that emerged in the mid-1960s,
one might have expected Republicans to have put an end to policies like
affirmative action and disparate impact, rather than accepting or even
helping facilitate their expansion. The two main reasons they didn’t were
the centralized nature of the media at the time, and the fact that the
conservative movement had not yet reached maturity as an ideologically
coherent force with control over the Republican Party.
Sometimes when different factions of the elite agree on a policy
approach, they can exclude alternative viewpoints that might resonate with
the masses. This was easier to do before the fragmentation of the media
landscape. In the 1960s, national politics was covered on television by three
major news stations. While most journalists saw themselves as arbiters of
truth delivering a valuable public service, the nightly news broadcast
represented a left-wing point of view on most things, particularly on the
issue of civil rights, support for which during the 1960s became a class
marker in the United States. Before the rise of talk radio, conservative news
channels, and the internet, those who wanted an alternative viewpoint could
subscribe to newsletters or magazines like National Review, the
conservative publication founded in 1955 and still influential today. But for
anyone other than political junkies, most information about national politics
came filtered through a center-left lens.
This does not mean that the bias was so pervasive and effective that
liberals could make reality bend to their will. The Great Society legislation
passed by Congress in 1964 and 1965 was widely popular. But Americans
very quickly saw that not only did liberal reforms fail to treat social
pathologies, but they were soon followed by levels of urban crime and
disorder that had no precedent in American history. The murder rate
approximately doubled over the course of the 1960s, and violent crime
more generally increased fivefold between 1960 and 1992.13 The fact that
the increase in crime was overwhelmingly concentrated precisely where
Great Society legislation aimed to help—that is, in the inner cities—helped
further discredit the liberal project, as did the rise of race riots in those same
communities. The country that in 1964 gave Lyndon Johnson 61 percent of
the popular vote would four years later give only a slightly lower
percentage to Richard Nixon and George Wallace, and go on to elect
Republican presidents in most elections over the next four decades.
Yet the conservative political backlash did not mean that the Great
Society would be rolled back. This is because while voters were paying
enough attention to see with their own eyes the failures of the 1960s and
vote accordingly, policymaking shifted from Congress to the federal
bureaucracy and the courts. Moreover, while the media, which was highly
centralized and liberal, could only change public opinion on issues to a
limited degree, it had overwhelming control over how proposed policies
under consideration were framed. It determined which policy proposals
were uppermost in the minds of the masses, along with the facts presented
about those issues.
Liberal media bias could not get Americans to like racial quotas, or even
make them fail to understand that they exist in the first place. What it could
do, however, was obscure the legal and institutional sources of power of the
civil rights regime, how it could be rolled back, and the nature of any
particular policy under discussion. While Americans would cast votes in
opposition to crime or affirmative action in the abstract, Congress could
pass the Civil Rights Attorney’s Fees Award Act of 1976 secure in the belief
that the public would remain unaware of the connections between increased
funding for the civil rights lobby and growing race- and sex-consciousness
in American life.
Moreover, prominent conservatives who went along with innovations in
civil rights law would be portrayed as acting as tolerant statesmen, while
those who resisted would be painted as bigots. It did not matter if most
Americans agreed with positions that liberals and the civil rights
establishment considered “racist,” like opposition to school busing. The
public has never been composed of policy wonks, and a media with
centralized control of information had a wide degree of freedom in how it
presented policy debates. None of this implies a conspiracy or a conscious
campaign to deceive on the part of most journalists; rather, like politicians,
reporters are generalists, and in the 1960s and 1970s they deferred to the
issue frames provided by a civil rights establishment that still had a great
deal of prestige after its victory over Jim Crow.
In addition to the effect of the media environment, it took conservatives
decades to complete their takeover of the Republican Party. Congress
therefore went along with executive and judicial decisions moving policy to
the left and occasionally passed legislation pushing in the same direction,
even while prominent Republicans spoke out against the excesses of civil
rights law.14 Nixon in particular adopted the language of conservatives, but
he was a centrist on domestic policy whose primary interest was in foreign
affairs.15 As he focused most intently on geopolitical issues surrounding
Vietnam, China, and the Cold War, at home Nixon gave moderate staffers a
dominant policy role while letting conservatives handle speechwriting and
PR.
The president was smart enough to realize that, in his words, “those
who write about politics really care more about style than substance.”16
While voters and political pundits were relatively unsophisticated with
regard to developments in federal law, the legal and public interest
communities that did understand what was at stake in various policy battles
were overwhelmingly liberal, and it would be decades before a conservative
counter-establishment would form.17 Conservatives had used the backlash
to the Great Society and its effects to win votes—with Nixon himself being
the greatest beneficiary. Nonetheless, the political right had yet to form an
activist class that could keep politicians accountable to its ideals, nor had it
developed a media ecosystem that could pressure politicians to adopt the
conservative perspective on issues.
The failure of conservatives to arrest the progress of civil rights law was
not completely Nixon’s fault. He made the judiciary a central issue in the
1968 campaign, but once he got into office he had trouble finding qualified
Republican judges. There were simply few conservatives within the federal
judiciary who could be realistic candidates for the Supreme Court. As of
1969, there were only four Republicans under sixty serving on any US court
of appeals.18 Similarly, conservatives were so underrepresented in elite
circles that the Nixon administration in many cases didn’t even understand
the implications of what it was doing. Title IX would become one of the
most potent weapons in the hands of government social engineers. But in
1972, supporters of the provision consciously adopted a strategy of trying to
publicize it as little as possible so as to not stir up opposition. It was added
to the Education Amendments Act of 1972 by voice vote, and when Nixon
signed the bill he released a statement that made no mention of what would
become one of his most lasting domestic policy changes.19
Thus while Nixon the man was the personification of the backlash to the
1960s, Nixon in power represented the continuation of the revolution that
had been started under Johnson. On many issues, his administration went
further than the executive branch had ever gone before. Nixon signed
Executive Order 11478, which established affirmative action in the federal
government; before, similar regulations were forced only on the private
sector. In the Philadelphia Plan, government construction contractors were
first held to a “goals-and-timetables requirement” to hire more minorities,
with Nixon having personally lobbied members of Congress on behalf of
the policy in December 1969 as a way to pit civil rights organizations and
labor unions against one another and split the Democratic coalition.20
A few months later, the OFCC expanded affirmative action in
contracting beyond construction to all industries, a development of which
the president may have been unaware. The Nixon administration also
pioneered the practice of the federal government giving contracting
preferences to female- and minority-owned businesses, as well as using
Title VI to pressure universities to consider race and sex in hiring.21 Finally,
the president signed the Equal Employment Opportunity Act of 1972, which
increased the enforcement power of the EEOC.
It was not only on civil rights that Nixon championed or helped
facilitate a liberal shift in policy. He also presided over the creation of the
Environmental Protection Agency and a major expansion of government.
Nixon was not alone in supporting policies that were, to conservative
intellectuals and ideologues like Goldwater, examples of government
overreach or even steps toward tyranny, as bills that represented the
expansion of the Great Society received bipartisan support in Congress.
Between 1940 and 1976, every Republican platform except those of 1964
and 1968 endorsed the Equal Rights Amendment, which would have
enshrined in the Constitution what would surely have been a feminist ideal
of gender equality.22
Even Nixon’s judicial appointments did not overwhelmingly reflect a
conservative philosophical orientation, or at least not to the same extent as
would those selected by later Republican presidents, although, as mentioned
above, this was not entirely his fault. The conservative legal movement,
which for all practical purposes did not exist during the Nixon
administration, would pressure future Republican presidents to appoint
judges that would reflect its worldview and understanding of the law.23
Republicans Divided, 1981–2009
On the issue of civil rights, Ronald Reagan was philosophically closer
to Goldwater than Nixon. Because he was more strongly grounded in
conservative ideology than his Republican predecessors, his administration
made some efforts to push back on the civil rights establishment. Yet they
failed due to bipartisan opposition not only in Congress but among cabinet
officials. On voting rights, the president and his Justice Department
opposed policies and practices that would have—by mandating the drawing
of electoral boundaries and instituting voting procedures meant to maximize
the number of black public officials—created racial quotas for political
representation. Yet Reagan decided to sign an extension of the Voting
Rights Act of 1982 after it received veto-proof majorities in both houses of
Congress.24 The bill increased the stringency of federal supervision of the
electoral systems and of the practices of states and localities, judging their
acceptability based on whether they elected enough black candidates, not
simply whether they protected the right of individuals to vote.
Reagan had a bit more success in pulling back the scope of affirmative
action, albeit temporarily. His appointees and staff worked on several
initiatives that eventually failed, due to resistance from within and outside
the administration. These included proposals to reduce the number of
contractors that had to produce affirmative action plans by three-quarters;
reduce the frequency of affirmative action compliance reports from annual
to once every five years; close the OFCCP; and end goals and timetables for
private firms.25
In general, it was the Department of Justice that was most consistently
conservative on these issues, and when it tried to act in ways consistent
with the policy wishes of the president, it faced pushback from Labor and
other agencies. At the EEOC, Clarence Thomas, then chairman, stopped
approving agreements with employers accused of discrimination that
included goals and timetables. Fewer contractors were disbarred for
noncompliance with government affirmative action policies, and the EEOC
and OFCCP both saw staffing cuts, with the latter shrinking by over half
between 1979 and 1985 to fewer than one thousand employees as its budget
was reduced.26
The Reagan administration was fairly cautious in its approach to
affirmative action in its first term. This began to change after the
appointment of Ed Meese as attorney general in early 1984 and the
president’s landslide reelection victory that same year. In 1985, Meese
drafted an executive order that would have prohibited the OFCCP from
using statistical evidence to charge contractors with discrimination.27 In the
words of Raymond Wolters, conservatives saw an opportunity: “With the
stroke of a pen, they believed, President Reagan could deliver a crushing
blow against quotas and put an end to the government’s policy of forcing
firms with federal contracts to practice racial discrimination.”
Secretary of Labor Bill Brock argued for a small revision to EO 11246
that emphasized the color-blind language of the Civil Rights Act. The right-
leaning press, in contrast, held that now was the time to act, given the
president’s recent electoral mandate. Reagan unquestionably sympathized
with the more strenuous critics of affirmative action. Yet in early 1986, as a
result of media coverage of the debate going on within the administration,
69 senators—including Majority Leader Bob Dole and 24 other
Republicans—and 180 members of the House sent a letter urging the
president not to sign Meese’s executive order.28 While Republicans had the
Senate, Democrats had come out of the 1984 election with a 72-seat
majority in the House, despite having lost 16 seats. Faced with such
overwhelming political pressure, Reagan punted and never signed the
proposed executive order. Despite the fact that most Americans opposed
racial quotas, civil rights activists and journalists sympathetic to them were
able to make life difficult for conservatives in the Reagan administration.
Also during Reagan’s second term, in 1987 Congress passed the Civil
Rights Restoration Act, which said that institutions that received federal
funds had to comply with Title VI and Title IX in all areas of operation.
This was in response to the Supreme Court decision Grove City College v.
Bell (1984), which held that under Title IX the government could only
threaten to cut funding off from the program or activity of a school or
university that was found to be engaging in discrimination. Reagan vetoed
the bill, but the veto was overridden via nearly unanimous support among
Democrats in the House (242–4), with only a slight majority of Republicans
voting against it (73–94). Just under two-thirds of Senate Republicans voted
for the override.
These votes accurately represent the positions of the two parties on civil
rights issues during the 1980s: Democrats united in more strenuous
enforcement, Republicans about evenly split. Congress was therefore able
to pass the bill, and even override the president’s veto the next year. One
can hardly exaggerate the importance of the Civil Rights Restoration Act;
Grove City had effectively ended OCR jurisdiction over athletics for a few
years.29 Under the Supreme Court’s interpretation of Title IX, the
Department of Education no longer had jurisdiction over college sports,
because the federal government did not provide money to athletic programs.
After Congress overruled Grove City, Title IX enforcement would not only
go back to what it was but ramp up and become ever more intrusive, as the
mainstream left became more radical in its ideas about gender and forced its
views onto higher education. Had Republicans united in upholding
Reagan’s veto, as they would be united on major civil rights legislation in
later decades, OCR would likely never have had the opportunity to begin its
project of micromanaging athletics programs and the sex lives of college
students.
Reagan and many of those around him clearly wished they could go
further on rolling back the excesses of civil rights law. Democrats were only
able to stop the president because they had help from Republican
politicians. The Grove City controversy roiled official Washington but was
mostly ignored throughout the rest of the country, meaning that it was not
public opinion but elite attitudes that determined the outcome.30
After the 1984 election, Republicans were still a minority in the House
but controlled the Senate. Democrats alone could not negate the effects of a
new executive order repealing or significantly modifying EO 11246 and
ending mandatory affirmative action among government contractors. Yet
Reagan faced pushback from Republicans in Congress, whether acting from
genuine conviction or political pressure. Mainstream media reports on the
debate over government contracting within the Reagan administration
would often include accusations of racism from civil rights activists and do
little to inform readers about the substantive issues involved, when not
actively misleading them.31
As the Grove City decision and its aftermath reveal, during the
Republicans Divided era the judiciary was moving to the right faster than
other parts of government, as Republican appointees were grounded in
conservative philosophy and relatively immune to the kinds of media
pressures faced by politicians. Yet Democratic unity on civil rights issues
and Republican internal strife ensured that any judicial victories would go
to waste. By 1989, Republicans had controlled the White House for all but
four of the last twenty years, and in that period appointed six of the nine
justices then sitting on the Supreme Court. This included John Paul Stevens,
who came to vote with liberals on hot-button issues, but enough of the
Republican appointees had a conservative judicial philosophy to
significantly change the nature of the Court.
This was reflected in two major cases in 1989. In Wards Cove Packing
Co. v. Antonio, a 5–4 decision, the Supreme Court ruled that having a
different percentage of whites and minorities in different jobs did not create
a prima facie case for discrimination. Disparate impact was not thrown out,
but to establish their case complainants had to at least show which practices
resulted in the relevant disparity, not simply point to the fact that a disparity
existed. The Court held that if a statistical disparity was all that was
required to create a prima facie case for discrimination, then the “only
practicable option for many employers would be to adopt racial quotas …
this is a result that Congress expressly rejected in drafting Title VII.” This
commonsense argument, which conservatives had been making for two
decades, was only accepted by the Supreme Court after Republican
presidents had appointed enough judges. In the same year, the Court also
ruled, in Lorance v. AT&T Technologies, Inc., that a system that protected
employees from firing based on seniority was not against the law just
because it had a disparate impact that disfavored women.
As Yale Law professor William Eskridge Jr. noted, Reagan differed
from previous presidents in undertaking “a virtually unprecedented
confrontational strategy against civil rights legislation.”32 George H. W.
Bush’s election would ensure that not only would Reagan’s changes to civil
rights enforcement practice not continue, but that the most important
Supreme Court rulings in this area would be overturned. The Americans
with Disabilities Act of 1990 prohibited discrimination against the disabled,
and went beyond the Civil Rights Act in requiring employers to provide
“reasonable accommodations” and imposing accessibility mandates in
public accommodations. More controversy accompanied the debate that
would ultimately culminate in the Civil Rights Act of 1991. In October
1990, Bush vetoed its predecessor bill on the grounds that, in his words, it
“employs a maze of highly legalistic language to introduce the destructive
force of quotas into our national employment system.”33
He was in a politically precarious position, as the bill had enough
bipartisan support that it was shy of a veto-proof majority by only two votes
in the Senate and twelve in the House. After the midterm elections,
Democrats would be in an even stronger position, and the administration
and Congress came to an agreement on the Civil Rights Act of 1991, which
passed with overwhelming bipartisan support and was signed by the
president. For the first time, the bill allowed for punitive damages under
Title VII, capped at $300,000 for the largest corporations and at lower
amounts for smaller firms.34 It also shifted the burden of proof onto the
employer for showing that a practice that had a disparate impact was “job
related for the position in question and consistent with business necessity”
in order to avoid a violation of Title VII.
Bush justified signing the Civil Rights Act of 1991 after vetoing its
predecessor by declaring, “this is not a quota bill.”35 It is interesting to note
the parallels with what happened in Nixon’s first term, when the new
president saw his party do poorly in the midterms and then acquiesced in
liberal efforts to expand civil rights law, all the while obscuring the nature
of the reforms he enacted, even down to disingenuously denying that new
laws and regulations had anything to do with imposing a quota system.
As discussed above, the Civil Rights Act of 1991, overshadowed by its
predecessor and all but forgotten today, had a major effect on employment
law, and when combined with vague standards inherent in concepts like
“discrimination” and “harassment” led to an explosion in EEOC complaints
and Title VII lawsuits. The election of 1994 again followed the norm of
recent American history in which a president’s party lost seats in the
midterm elections, although in this case the gains the Republicans made
were massive: they picked up eight seats in the Senate and fifty-four in the
House, winning the latter body for the first time since 1952.
Newt Gingrich, upon becoming Speaker of the House, lent his support
to the ultimately successful effort to end racial preferences in California and
in early 1996 promised a conservative audience that he would “pursue an
all-out effort to end affirmative racism in America.”36 Yet congressional
Republicans came to defer to the only two black members of their caucus
on the issue. Gary Franks of Connecticut wanted to move ahead with taking
apart affirmative action, while J. C. Watts of Oklahoma tried to put the
brakes on any such efforts.37 In July 1995, the Senate defeated a measure to
end federal contract set-asides for women and minorities by 61–36. The
Washington Post reported at the time that Republican congressional leaders
“found that the issue is more divisive within their party than some had
initially believed” and “have demonstrated little enthusiasm for an
emotionally wrenching debate.”38 Soon after, Bob Dole introduced the
Equal Opportunity Act of 1995, which would have prohibited or limited
affirmative action in government contracting and employment, effectively
undoing the legacy of EO 11246 and decades of EEOC regulations and
court decisions. The bill never went to a vote.39
Sometime in 1995, Republican leaders apparently concluded that
winning the public relations battle over affirmative action was hopeless, and
they stopped talking about the issue. In 1996, Dole selected as his running
mate Jack Kemp, an outspoken supporter of racial preferences who
promised that he would use his influence in the party to make sure it
focused on taxes and economic issues “rather than on reducing immigration
by one-third or stopping affirmative action,” which according to him would
involve dividing people by race and sex.40
The issue after that point was mostly forgotten. Continuing a long-term
trend of ideological sorting between the parties, meaning that more specific
positions come to be clearly associated with one side of the aisle or another,
the administration of Bush the younger was more conservative on civil
rights issues than that of his father. Yet this was not saying much, and the
administration was still to the left of the average American voter, being
unwilling to even go as far as supporting policies that had been enacted
through ballot initiatives in states like California.
When the Supreme Court was considering Gratz and Grutter in 2003,
Bush gave a statement opposing the affirmative action programs at the
University of Michigan then under consideration while stopping short of
saying that all racial preferences were unconstitutional.41 And unlike under
Reagan, there was no real attempt to roll back civil rights excesses through
the executive branch, although decades of conservative appointments to the
judiciary did continue to have an impact on the law under the younger
Bush.42
As it had with the doctrine of disparate impact in the 1980s, the
Supreme Court in 1999 started pushing back on the expansive
interpretations of the Americans with Disabilities Act. In Sutton v. United
Air Lines, Inc. (1999), the Supreme Court allowed courts and employers to
consider mitigating measures to determine whether an individual is
disabled, and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams
(2002) narrowed the concept of “disability” to mean something that hinders
the ability of an individual to carry out daily tasks, not something that
simply prevented one from doing a specific job. In response, Congress
passed and President Bush signed the ADA Amendments Act of 2008,
which set a broad standard for what counts as a disability and prohibits
considering mitigating measures. Hence alcoholism is now clearly a
disability under the ADA, even if an individual could at any moment decide
to stop drinking.
The ADA Amendments Act passed through a voice vote in the Senate
and an initial vote of 402–17 in the House.43 Incredibly, one of the changes
of the law was to strike from the record a congressional finding used to
justify the ADA saying that 43 million Americans had some form of
disability. This was used by the Supreme Court in Sutton to find some limit
to the number of Americans who could be covered. In that particular case, it
meant excluding those with poor vision, of which there were nearly four
times that number.
Having the ADA cover only one-sixth of the American population was
apparently too restrictive for President Bush, Congress, and disability
activists. The divergence here between the Court and politicians, including
Republican politicians, can likely be explained by the fact that while civil
rights law as applied to race and gender had become polarizing by the late
Bush administration, disability law was still approached in the same way
civil rights more generally were under Nixon. The Supreme Court actually
listened to the arguments of disability activists and rejected them once it
understood how radical they were, while politicians outsourced their
thinking to those claiming to speak for what was perceived to be a
sympathetic minority, even if the law Congress passed made them into an
official majority. The ADA Amendments Act would be the last major civil
rights law that was debated and ultimately enacted by a near consensus in
Washington without major opposition from any sector of the American
political elite.
Conservative Neglect, 2010 to the Present
While the Reagan administration represents a clear break from the
bipartisan consensus that came before it, it’s less clear where to draw the
line between the second and third eras of conservatism and civil rights law.
I choose 2010 because it was the year that the Tea Party movement
achieved electoral victories, with ideologically committed conservatives
knocking off a series of establishment figures in primary elections and
Republicans performing well in the midterms. Mitt Romney had been a
moderate for most of his career, but would have to grovel before
conservatives in order to secure the Republican nomination for president in
10. The conservative takeover of the Republican Party had been ongoing
since Goldwater’s nomination, but by 2010, with the end of the Bush
presidency and the electoral loss of John McCain, we can say that the
process had become mostly complete.
This means more polarization on civil rights law, which has simply been
a part of greater polarization more generally and a likely contributor to it.
An analysis of congressional voting patterns shows steady polarization in
both houses of Congress from the 1960s to the late 1970s, before it took off
and increased at a more or less consistent rate up to the present day.44 While
in the past there was some overlap in voting behavior between the most
liberal Republicans and the most conservative Democrats, since around
2010 there has been practically none.45 Increasing polarization does not
necessarily mean that Republicans are getting more conservative and
Democrats more liberal, only that the two parties vote more differently on
the laws that Congress actually considers. Thus while both parties are more
in favor of gay marriage than they were in the late 1990s, such a fact would
be unlikely to be reflected in the data. Nonetheless, the most casual review
of the programs and initiatives supported by Nixon and Ford, when
compared to most of the policies favored by Republicans since 2010,
confirms that the data gathered by political scientists on congressional
voting reflects trends that are consistent with what is happening on the right
and left more generally.
One explanation of conservative neglect of civil rights issues in this era
is the fact that the US has been experiencing increasing education
polarization over the last few decades.46 Republicans are the less educated
party, particularly underrepresented in policymaking circles and among elite
college graduates. While there is a conservative intellectual elite, the
movement as a general matter finds it less natural to connect its concerns to
public policy. There are simply fewer activists, journalists, and legal
scholars on the right than on the left, with the views and attitudes of
American conservatism being in large part driven by the news cycle, purely
partisan concerns, and the idiosyncrasies of political leaders and
entertainers.47 The conservative legal movement, well represented in the
judiciary and the executive branch, has often seen the problems with civil
rights law, but it has gotten little help in this area from state legislators and
members of Congress, who are more reflective of the Republican base.
From the 1960s on, conservative intellectuals and pundits were always
vociferous critics of affirmative action, race-conscious electoral laws that
tried to maximize minority voting power, sexual harassment law, and
disparate impact. Judges appointed by Republicans, many of them coming
out of the conservative intellectual tradition, were willing to push back on
the excesses of civil rights law as early as the 1980s. Yet until the last
decade and a half, principled conservatives were only one faction within the
Republican Party. Bipartisan majorities were responsible for the major post-
1964 legislative expansions of civil rights law: the Equal Employment
Opportunity Act of 1972, the Civil Rights Attorney’s Fees Award Act of
1976, the Civil Rights Restoration Act of 1987, the Americans with
Disabilities Act of 1990, and the Civil Rights Act of 1991. Aside from the
ADA Amendments Act of 2008, however, there has been no new important
civil rights legislation passed since 1991, not because the left is satisfied
with how far we’ve progressed as a country but because Republicans will
no longer cooperate on these issues.
Writing in 2018, R. Shep Melnick lists twenty-eight times Congress has
expanded civil rights law since 1964, and six cases in which Congress
overturned a conservative Supreme Court decision in this area.48 The last of
the latter category was the Lilly Ledbetter Fair Pay Act of 2009, which
extended the statute of limitations under Title VII. It was an almost
completely party-line vote, with all fifty-eight Democratic senators (with
one not voting) and all but eight Democratic House members (three not
voting) supporting the bill.
Republicans opposed it by margins of 3–172 (three not voting) in the
House and 3–36 in the Senate. Thus by 2009 liberals were able to get only a
very small expansion of civil rights law, and even that needed to be in the
aftermath of a large election victory and without being able to count on
Republican support. Figure 6.1 shows how Republicans in each body of
Congress have voted on eight major pieces of civil rights legislation since
1972 that involved modifications to the Civil Rights Act of 1964 in a liberal
direction by expanding its reach, changing the definition of
“discrimination,” lowering the burden of proof for showing discrimination,
extending a statute of limitations, or awarding attorney’s fees to successful
litigants.
Figure 6.1
Percentage of Republicans in each house of Congress voting for eight civil rights bills
considered since 1972. Excludes those who did not vote in calculating percentages. The
Civil Rights Restoration Act votes refer to the votes to override Reagan’s veto, not those
taken on the original bill. All bills in the chart passed, except for the Civil Rights Act of
1990, which was vetoed by President George H. W. Bush, and the Equality Act, which was
never brought to a vote in the Senate. Each proposed bill included provisions making civil
rights laws stronger or more expansive. In general, major civil rights bills have become
less ambitious and less common as Republicans have turned against them.
We see the three eras discussed in this chapter reflected in the graph
above. During the Bipartisan Cartel era, that is, before Reagan came into
office, congressional Republicans overwhelmingly supported the Equal
Employment Opportunity Act of 1972, the Civil Rights Attorney’s Fees
Awards Act of 1976, and the Pregnancy Discrimination Act of 1978. Vote
tallies on the next three bills reflect the fact that Republicans were divided
on civil rights legislation over the next few decades. The Civil Rights
Restoration Act was supported by a majority of Republican senators and a
minority of House members, which was enough to overcome President
Reagan’s veto. By 1990, there was a major split between the parties, as
most Republicans voted against the Civil Rights Act of that year, which
President Bush vetoed. The version of the bill voted on in 1991 passed with
overwhelming support and was signed by the president, but only after
congressional debates that reflected deep policy differences between the
parties. By the time of the Lilly Ledbetter Act and, twelve years later, the
Equality Act, views on major civil rights legislation were nearly perfectly
correlated with party: all Democrats were for these bills, while almost all
Republicans were against them.
As mentioned above, an exception to this pattern was the ADA
Amendments Act of 2008, in which a bipartisan consensus reminiscent of
the 1970s prevailed. Yet even on the disabilities issue, something shifted
with the rise of the Tea Party. In 2012, the Senate was considering a UN
treaty on discrimination against the disabled modeled after the ADA. Bob
Dole’s wife rolled him onto the floor, but still thirty-eight out of forty-six
Republicans voted against the treaty, and it was rejected.49 Given Sen.
Dole’s role in passing the ADA, the Republican rejection of this UN treaty
in his presence was highly symbolic of how much had changed.
In 2017, Republicans in the House, with support from a handful of
Democrats, voted to pass the ADA Education and Reform Act, aimed at
stopping frivolous lawsuits and reducing business costs. In retrospect, it
looks as if the ADA Amendments Act of 2008 was the end of the bipartisan
consensus in favor of stronger federal laws to protect the disabled, meaning
that the issue today is almost as politically divisive as new proposed laws
relating to race and sex. The rise of polarization in the area of disability law
came decades after polarization on other civil rights issues, but the direction
of the move in each case has been similar.
The failure of congressional Democrats to make discrimination against
LGBT Americans illegal under federal law also reflects the new reality, and
although the 2020 ruling in Bostock gave them much of what they wanted,
they have been unable to go any further. In February 2021, the Democratic-
controlled House passed the Equality Act, which would have explicitly
made gender identity and sexual orientation protected classes, but it did so
with a small majority that included only three Republican votes, and the bill
has gone nowhere in the Senate.50 With high levels of polarization, getting
major legislation on social issues through has become extremely difficult.
The continuing existence of the filibuster in the Senate, even though it is not
a constitutional requirement, makes passing two houses of Congress and
obtaining a presidential signature that much more daunting.
Looking only at the percentage who vote for the conservative position
on various bills underestimates the shift away from the bipartisan consensus
model of civil rights lawmaking, as it fails to show all the laws that never
come to a vote. And there is yet another sign of how much things have
changed. The Trump administration’s Title IX policies undid regulations of
a previous president, breaking the cycle of the last several decades in which
Democratic administrations expanded social engineering through OCR and
Republicans maintained the novel policy. This holds only until the next time
a Democrat comes into office and starts the process all over again.51
How Republican attitudes have changed on voting rights roughly tracks
their evolution on civil rights more generally. The original Voting Rights
Act was passed in 1965, and subsequent amendments were adopted in 1970,
1975, 1982, 1992, and 2006. All became law with overwhelming majorities.
As with the Civil Rights Act of 1964, the first Voting Rights Act was
intended to respond to the racial caste system in the South; but the
legislation quickly became an open-ended license for government social
engineering. Republican acquiescence on the issue was not simply a matter
of the party having moderate and liberal members—many conservatives
have believed, with apparent good reason, that packing blacks into their
own districts maximizes not only minority representation in Congress but
also Republican representation.52 In Shelby County v. Holder (2013), the
Supreme Court did away with the requirement that certain states and
localities gain permission from the federal government before
implementing any changes to their voting laws or practices. This decision
was met with outrage by the civil rights establishment, and in a previous
era, it might have inspired new legislation, just as Wards Cove and other
rulings led to the Civil Rights Act of 1991. After Shelby County, Democrats
began to push for new voting rights legislation, but their efforts have gone
nowhere, as there is no longer a Republican constituency in Congress for
overturning conservative Supreme Court decisions.
Trump’s victory in the 2016 Republican primaries and his subsequent
election to the White House were seen by many as a refutation of a previous
generation of conservatives and their ideas. Yet while Trump the candidate
talked like a moderate by, for example, expressing openness to taxing the
rich, he for the most part outsourced his legislative agenda to Republicans
in Congress, and chose his judges and cabinet officials based on who was
acceptable to the conservative establishment. When Republicans had
unified control of government in Trump’s first two years, their major
legislative accomplishment was a tax cut that disproportionately benefited
the wealthy, and they also sought significant cuts to Medicare and Medicaid
in the process of trying to repeal Obamacare.
Trump, like other Republicans since the 1960s, was elected largely
because people vote on cultural issues, not economics.53 Nonetheless, at the
national level Republicans have proved better at accomplishing foreign
policy and economic policy goals than they have at doing anything
regarding civil rights law. Perhaps the main reason is that courts have
assumed an unusually large role on social issues, as has the federal
bureaucracy. Still, decades of Republican power, and the conservative
influence within the GOP, have meant that the judiciary in particular has
moved to the right. This gives conservatives more of a chance to have an
influence on cultural and social issues.
Despite only serving one term, President Trump was able to put three
new justices on the Supreme Court. Senate Republicans serving during his
administration, though lacking much of a legislative agenda, worked hard
on pushing judges through the Senate. Trump appointed fifty-four appellate
court judges in four years, just one shy of how many Obama was able to
appoint through his eight.
The history discussed above shows that on civil rights issues both sides
have gone to their respective corners. Republicans have not gone back to
supporting the Equal Rights Amendment, and Democrats at the national
level show practically unanimous support for even the kinds of racial
preferences that were once controversial on the left. Moreover, the days
when Republicans would join with Democrats in Congress to overrule a
Supreme Court decision that upset the civil rights establishment are long
gone.
Yet although the Republican Party has been taken over by
conservatives, civil rights law has not been rolled back, in part because the
issues involved have lacked salience. And while partisan polarization now
prevents Republicans from working with Democrats to expand civil rights
law, education polarization ensures that they find it difficult to move policy
in their preferred direction. This is why the era is called Conservative
Neglect; because moderates and liberals have left the Republican Party, it
now generally ignores civil rights law except to fight a rearguard action
against its expansion. Measures, laws, and court decisions that were
controversial when new have become part of the legal, cultural, and social
fabric. When an issue related to civil rights becomes politically relevant,
Republicans can be expected to rally behind the conservative position, with
recent controversies over the UN disability treaty, the Voting Rights Act,
and the Equality Act being examples of this. When the Supreme Court or
Democrats in Congress confront Republicans with a new issue, they resist
going along due to the conservative view that government should not be
doing all that much to fight racism, sexism, or homophobia. This is justified
by the beliefs, generally sensible, that these things aren’t major problems in
American society; that government would not be well equipped to fix them
if they were anyway; and that protecting individual rights and encouraging
economic efficiency are more important than attempting to achieve equality
between groups.
Acting on his own instincts and encouraged by conservatives within his
administration and right-wing media, Trump took the conservative position
on major civil rights issues that came to his attention. The administration
rolled back anti-discrimination protections for gay and transgender
individuals in the army, health care, and education when they conflicted
with principles like religious freedom and federalism.54 It also eliminated
Obama-era Title IX regulations, including the requirement that universities
lower the burden of proof for disciplining men accused of sexual assault.55
In the summer of 2020, President Trump happened to be watching Fox
News when Tucker Carlson was interviewing Chris Rufo, who had done
some reporting on critical race theory trainings within the federal
government. The guest called on President Trump to issue an executive
order to “stamp out this destructive, divisive, pseudoscientific ideology at
its root.”56 A few weeks later, he did just that. On January 5, 2021, The
Washington Post reported that the Justice Department was thinking about
no longer considering disparate impact as a form of discrimination under
Title VI of the Civil Rights Act. The paper noted that the administration had
been considering the move for two years, and described the initiative as “a
last-ditch effort to accomplish a longtime goal of conservative legal
activists.”57
The change would have been limited to the Justice Department but
could have had ripple effects throughout the government. Already in 2018,
the administration had revoked Obama-era guidance under which the
Department of Education would investigate schools that disciplined
minorities at higher rates than whites, even without discriminatory intent.
The events of January 6 put an end to the possibility of anything being done
on disparate impact—even if that policy shift in such a short period of time
had been plausible in the first place—but the fact that the effort was even
made shows how far Republicans had come since Nixon was pioneering
new forms of affirmative action.
The Time for Action
The history sketched above helps show why the time is right for
conservatives to act on rolling back the excesses of civil rights law. The
political and policy benefits of doing so that existed in the past are still
there, while modern developments only add to the case for action. Mass
opinion is overwhelmingly against racial quotas, disparate impact, and the
results-oriented approach to seeking group equality that has been the
hallmark of civil rights law for half a century now. While the public has
moved left on other issues, here the conservative position remains the
majority one, as can be seen in recent polling and ballot initiatives.
Now, in addition to having public opinion on their side, conservatives
have three new reasons to act that are the result of relatively recent changes
in the political environment. The first involves already mentioned shifts
within the Republican Party. The moderates who thwarted Ronald Reagan’s
effort to repeal affirmative action and who made sure that the Civil Rights
Act of 1991 passed with large bipartisan majorities are no longer there. The
rise of populism means that, at least on the issues involved here, there is a
growing faction within the Republican Party that is aligned with
libertarianism rather than hostile to it. When a party is internally divided on
an issue, decisive action can be impossible. Republicans after taking the
House in 1994 found that abolishing affirmative action split their own
caucus while uniting Democrats, tilting the playing field in favor of the
latter despite there being majority support for the conservative position in
the country as a whole. A unified right is very important here because of the
tendency of the left to misrepresent their own positions in order to make
them more palatable to the public. When they get help in such efforts from
prominent Republicans, what starts as a political advantage for the right can
quickly become a liability. Fortunately, there are few Republicans left
willing to side with Democrats on these issues.
Second, Republicans have not only become more conservative and less
subject to left-wing pressure campaigns, but they and their base are more
obsessed with wokeness than at any point in the past. The idea that
conservatives prioritize “owning the libs” over all else has become a
running joke among liberals and other critics of the right, including those
within the movement. “Cancel culture” was a theme of the 2020 Republican
National Convention and has been at the center of more than one annual
CPAC. Trump’s appeal can be explained in this way—he was far from the
most conservative presidential candidate in the 2016 primaries, but he
inspired the most hatred from the other side. To many Americans motivated
by anger and bitterness toward an elite culture that they believe has gone
insane, that was enough.
Yet while conservatives know that they hate wokeness, they have had a
difficult time knowing what to do about it. Trying to fight the phenomenon
can feel like flailing at the wind, as it seems to be a force that is both
omnipresent and unstoppable. Especially since 2016, it would be easier to
make a list of prominent institutions that have not gone woke than it would
be to count all those that have. Conservatives have united around the idea
that something has gone terribly wrong, and the emotional reaction that is
the backlash to wokeness has helped solidify a sense of tribalism and an
accompanying hatred of an enemy that are conducive to taking real political
action.
Finally, not only are Republican officeholders more likely to be
committed conservatives than they were in decades past, but the political
pressures operating on them are different. In a 2001 essay, John Skrentny
found that, when he asked Republican congressional staff and think tank
operatives why the party did not end affirmative action, the first thing they
usually mentioned was fear that they would be called racist as their views
were criticized and misrepresented in the media.58 In the last two decades,
however, conservatives have grown increasingly immune to such concerns,
as can be seen perhaps most notably in the rise of Trump and in the kinds of
culture war legislation being adopted at the state level. Fox News, along
with the growing importance of the internet and social networking sites, has
helped create a conservative media ecosystem that has gained influence
over Republican policymakers, drowning out traditional media and left-
leaning civil rights organizations.
Looking back at the 1970s and 1980s, it is striking the degree to which
these activists were able to frame the issues under debate. The Reagan
administration took positions on civil rights law that would have sounded
reasonable to most Americans if they could have gotten an accurate picture
of what those positions were. Color-blindness, and requiring direct evidence
of intent to infer discrimination rather than simply relying on statistical
differences in outcomes between groups, in and of themselves made sense.
Yet in an era before cable news, talk radio, and the internet, debates about
civil rights law were filtered down to the public in the form of “liberals are
more anti-racist than conservatives.” Today, hyperpolarization, and the
existence of media outlets that reflect different prejudices and worldviews,
can sometimes lead to socially undesirable outcomes, as in recent years
when large numbers of Americans who got their news from right-wing
sources came to doubt the effectiveness of Covid-19 vaccines.
Yet the hyperpolarization of media and society can also allow for a
fairer debate than in the past, particularly on issues where left-wing biases
are particularly extreme. In few areas is the mainstream press less
trustworthy than on issues of identity, as can be seen in recent years in
various supposed hate crimes that journalists have championed being
exposed as hoaxes, and the narratives about police shootings that they
credulously reported on that turned out to unravel over the course of time.59
On the question of civil rights law, if there is anything resembling a fair
debate, conservatives can win. The way that the left understands identity
issues—namely their acceptance of a results-based approach to justice and
theories such as institutional racism—is simply unpalatable to most
Americans. It may be unacceptable to any people anywhere, as it is so
illogical and full of contradictions that the whole system may require
constant lying in order to survive. Hence the battle over teaching critical
race theory, in which conservatives have been winning a series of political
and legal victories ever since Chris Rufo brought the issue to the attention
of the public.
Our current high level of polarization means that it is easier than it used
to be for parties to get things done even when those things are unpopular. It
is interesting that the last three presidents have all seen less variation in
their approval ratings than any other president since the beginning of
modern polling.60 Despite all the ups and downs of the Trump presidency,
the public did not shift much in its appraisal of the job he was doing, with
his approval rating staying in the low to mid-40 percent range across his
entire time in office, except for a dip to 34 percent after the events of
January 6, averaging 41 percent.
Contrast this with the record of George H. W. Bush, whose approval
rating ranged from 29 percent to 82 percent, averaging 61 percent. Trump’s
signing of an unpopular tax bill as his major legislative achievement, the
perceived failures of the coronavirus pandemic, and two impeachment
proceedings, one while he was in office and the other on the horizon as he
was leaving, did little to change his approval rating over time.
While with all else being equal it is still better for politicians to do
things that are popular, less variability in how the public sees its leaders
means that unpopular policies won’t necessarily sink their political fortunes
and popular ones are no guarantee of victory. This gives more room for
ideology to play a role in governance—something that is particularly true at
local levels. In many states, one party is all but guaranteed to rule
indefinitely into the future, which means that Republican leaders in
Alabama and Democratic leaders in California can both be more extreme
than their constituents. Although rolling back civil rights law would likely
be popular, even if it wasn’t it would still be easier to do today than it was
in the past.
Chapter 7
What Is to Be Done?
The idea that society needs to be permanently managed for the sake of
making the sexes interchangeable and doing away with unintentional biases
—even when they are based on statistical truths—appeals to very few
people. Moreover, despite the fact that the civil rights regime has developed
to encompass practically all of work life, the First Amendment still protects
the speech rights of individuals when they are not on the job, and there are
only a limited number of trial lawyers and civil rights bureaucrats in the
country. This is why wokeness and the assumptions that underlie it can still
be criticized, at least by those of us not under the jurisdiction of an HR
office, and businesses and other private institutions can for the most part
still function without becoming completely absorbed by issues of race and
gender in the way universities have.
For these reasons, wokeness is likely easier undone than would appear
at first glance, despite its having seemingly influenced almost every
prominent institution in the country. We live under a political duopoly, with
one of the two major parties strongly united in opposition to wokeness as
both a cultural and political phenomenon. Once individuals are convinced
that things can change, and that change can come through the political
process, the question becomes, what exactly is to be done? That is the focus
of this chapter.
Thankfully, there is low-hanging fruit in the policy space—actions that
can be taken through the executive branch or judiciary that are likely to be
either actively supported by or ignored by the public, meaning they present
few political risks. Amending Executive Order 11246 can be done on the
first day of a Republican administration. Abolishing disparate impact as a
standard for determining whether an action is discriminatory under Title VI
can similarly be done through the executive branch, and the same is likely
true to a limited extent for Title VII.
The Supreme Court can throw out disparate impact as a violation of the
Equal Protection Clause the moment it gets the right case. Even when it was
more liberal, the Court had already shown skepticism toward the doctrine,
and now it is simply a matter of litigants being strategic in getting the
matter before the judiciary. Harassment law likewise rests on shaky
constitutional grounds. The regulation of sex and sports under Title IX
resembles disparate impact in that it is the result of bureaucratic and judicial
innovations that have little resemblance to the original intent of the statute it
relies on. Once again, the legal arguments here are straightforward enough,
and do not require new legislation.
These should be the most immediate priorities of an anti-woke political
movement. Beyond that, one can discuss more ambitious proposals to take
on wokeness that involve passing legislation, or more than simply getting
the government off the backs of individuals and private institutions. It is
worth considering such proposals, their potential unintended consequences,
and what they can and cannot do. Before thinking about any actions one can
take to combat wokeness, however, it is worth thinking more about the
issue of political salience as a determining factor in what kinds of policies
are enacted and the kinds of court cases that are decided.
Political Salience
In mid-2020, a tweet went viral claiming that in most states police could
legally have sex with or rape someone in their custody if the officer claimed
the act was consensual.1 This was a highly misleading claim, in that rape is
illegal under all circumstances, and the words of a police officer are not
required to be taken as gospel in any legal system. The part of the statement
that was true, however, was also a sort of half-truth. It was correct that in
many states there was no law specifically prohibiting sex between a police
officer and an individual in their custody. But the tweet gave the impression
that legislators had considered the question and in a majority of states
decided that they saw nothing wrong with the practice. In fact, federal law
as of mid-2020 did ban sex between officials and inmates in prisons and
immigration detention facilities. However, Congress had neglected to also
criminalize sex between officers and arrestees who have not been convicted
of a crime, a loophole that most states had not bothered to close.
There are likely few or no legislators in the country who believe that
such conduct should be legal. Yet because the issue had never been salient,
government had not acted. This story teaches us something important about
policymaking. There can be a practice that 100 percent of people think
should be banned, but it can remain legal if no one thinks about the issue or
brings it to the attention of the public.
In a typical year, Congress enacts hundreds of pieces of legislation, and
the president signs dozens of executive orders.2 In the judicial branch, the
Supreme Court uses its discretion to hear fewer than 150 cases of the over
7,000 petitions for a writ of certiorari.3 State governments, regulatory
agencies, and lower federal courts likewise selectively use their authority to
change policy in areas where they believe it is appropriate to do so.
Government officials have a great deal of discretion over what to focus on,
and they direct their attention to causes when they believe doing so can
make the world better, or when they feel political pressure to act. The job of
a political entrepreneur is to raise the profile of his own issue and convince
government officials that his particular concern is worthy of consideration
on at least one of those grounds.
As mentioned in the previous chapter, highlighting a cause can backfire
if it leads to the issue becoming partisan. Yet drawing attention to a cause
may be the only way of provoking action in the judicial and executive
branches. Ideally, a political entrepreneur wants his issue to be high in
salience but low in polarization. High in salience and high in polarization is
a second-best option, while if no one cares about an issue at all, nothing
will happen. Table 2 summarizes the idea.
Table 2. Political change as a product of salience and
polarization
Polarization Low Polarization High
Salience
Low
Nothing happens,
maintenance of status quo
(2)
Nothing happens,
maintenance of status quo
(currently wokeness as
law) (1)
Salience
High
Legislation, executive
branch actions, and
judicial decisions all
possible (3)
Executive branch actions
and judicial decisions
possible, legislation very
difficult, great deal of
public rancor about an
issue (currently wokeness
as culture) (4)
Right now, wokeness as a cultural phenomenon is in the bottom-right
quadrant (4). It dominates our political discourse, but government officials
do not spend their time changing the culture, or at least not directly.
Wokeness as law—for example, affirmative action in government
contracting and the disparate impact doctrine—is in quadrant (1).
Government officials do not act, often because they never feel the pressure
to do so. A goal of this book is to move “wokeness as law” from (1) to (4),
therefore at least making executive branch actions and judicial decisions
possible.
Ideally, wokeness as law would be in (3), though this may not be
achievable. Even if mass opinion opposes affirmative action and color-
conscious policy, what matters most is elite opinion, and the nature of
political polarization is such that public opinion among liberals could move
to the left once conservatives make wokeness as law more salient in public
life, as happened when Trump ran for president and made opposition to
immigration a centerpiece of his campaign.
One argument of this book is that wokeness as law can relatively easily
be moved from (1) to (4), which might be enough to bring about significant
change, since major innovations in civil rights law have mostly come from
the executive and judicial branches, where they can also be undone.
Nonetheless, the idea of passing federal legislation should not be
completely dismissed, although the path to doing so is more difficult and
uncertain.
Chris Caldwell writes that over the last several decades, “Republicans,
loyal to the pre-1964 constitution, could not acknowledge (or even see) that
the only way back to the free country of their ideals was through the repeal
of the civil rights laws.”4 Yet this is not exactly right, at least if by “laws”
he means “legislation.” It is true that criticizing the Civil Rights Act, as it
was passed in 1964, remains unthinkable for nearly all Republicans. Yet
every extension of the nondiscrimination principle beyond color-blindness
—affirmative action, the threat to free speech that comes from regulations
against sexual harassment, the soft quotas that are the natural consequences
of the disparate impact doctrine, and so on—has been fiercely criticized by
at least some conservative thinkers and Republican politicians for over half
a century now. While there once were Republican politicians who refused to
oppose, or who even supported, these doctrines, ideological sorting across
parties has meant that there are now fewer of them.
Civil rights law has not been rolled back by Republicans in power
mainly because the issues involved have stayed below the radar. The
doctrine of disparate impact, which fundamentally changed the country, was
created by the EEOC and accepted by the Supreme Court. The process that
produced it was even more obscure than normal agency action, which is
subject to the Administrative Procedure Act. That law requires that
regulations be subject to a public comment period and makes them
appealable to a court.5 Under federal law, the EEOC does not make rules, it
provides “guidance,” which in theory gives it less power but in reality
provides more ability to innovate without any oversight.
OCR in the Department of Education has the ability to make rules under
Title IX but generally does not do so, and has pushed forward new
innovations through Dear Colleague letters that make major policy changes
under the guise of issuing clarifications of long-accepted standards.
Affirmative action for federal contractors has its roots in an executive order
that is nearly half a century old, and the text of the document gives no hint
as to what it requires. As with the Civil Rights Act and Title IX, the details
were to be worked out in federal agencies and the courts.
If affirmative action for government contractors and the doctrine of
disparate impact were invented today, Republicans would be united in
opposition, and while public opinion would be polarized, it would likely tilt
to the conservative side, leading Democrats to be tepid in their support for
these policies and others like them. But because the main developments in
civil rights law preceded our current era of extreme ideological sorting by
party, they today are mainly ignored. New liberal initiatives that extend the
logic of civil rights law are strongly opposed by conservatives, who are able
to put the brakes on such policies, either through legislators or the courts.
Two recent examples are the teaching of critical race theory, which has been
banned in several states, and a policy of earmarking grants for black
farmers under the Biden administration, which has been criticized by
Republicans in Congress and as of this writing remains in a “legal
quagmire” as it faces difficulties in court.6
A referendum is the ultimate act of making a political issue salient.
When affirmative action is put on the ballot, it almost always loses,
regardless of the political leanings of a state. Legislative votes are less
salient than referendums but more so than agency actions, and here the civil
rights lobby has had much less success, with few major victories at the
federal level in over thirty years. Yet within the DOJ, the EEOC, and the
OFCCP, professional activists and those with the most expansive definition
of discrimination have largely been able to do as they please. Ultimately,
federal bureaucracies get their funding from Congress and derive their
authority from legislation. When they surpass that authority, Congress must
be willing to use the power of the purse and presidents to undertake
executive action to rein them in.
The focus on “woke capital” as a cause rather than the symptom of what
has gone wrong in our culture reveals a lack of knowledge about the extent
to which government has been an active player in shaping informal rules
and norms. There is widespread understanding on the political right that old
approaches to fighting the left have failed. The crucial step for taking
political action involves presenting specifics about exactly what the reaction
to wokeness should look like.
The concept of political salience has a different meaning for judges than
it does for elected officials. As Steven Teles writes in his history of the
conservative legal movement, for a judge to reach a decision requires an
intellectual foundation grounded in previous decisions, ideas being debated
and shared within elite law schools, and lawyers and advocates strategically
bringing sympathetic cases and framing them in ways in which they can
make the most impact.7 Liberals had these necessary prerequisites for
impactful litigation decades before conservatives did. While the left still
outnumbers the right in number of committed lawyers, nonprofits, and
activists on its side, conservatives have built enough of a critical mass to be
effective and are now well represented in the judiciary, with Republican
presidents having appointed most federal judges as of 2022. Where the
conservative legal movement focuses its energy helps determine which
cases conservative judges will ultimately rule on. Thus affirmative action in
college admissions has been a target of conservative activists for
generations, and the Supreme Court now hears a case on the topic a few
times a decade.
Yet disparate impact under Title VII and affirmative action in
government contracting rarely make it to the Supreme Court, as the higher
education sector is more likely than private business to inspire activism on
behalf of individuals of all political backgrounds. Highlighting wokeness as
law in different areas of public life—from university classrooms and
academic journals to social media and talk radio—creates a self-reinforcing
cycle through which conservatives can take advantage of public opinion
being on their side to effect political change, whether through the
presidency, regulatory agencies, legislation, or the courts. This chapter
presents what should be the main aspects of an anti-wokeness political
program, as summarized in Table 3.
Start with the Low-Hanging Fruit
Legally and institutionally, the most important low-hanging fruit available
for pushing back against wokeness as law would include repealing or
amending Executive Order 11246, abolishing the disparate impact doctrine
in Title VI and Title VII, and reworking the rules on Title IX through OCR
in the Department of Education. There’s a clear path to doing each of these
things through either the executive branch or the judiciary, where
conservatives have some representation and control. Sweeping judicial
decisions are generally preferable as they cannot be easily rolled back by
Democratic administrations, though even executive actions at the very least
grant reprieves from the extremes of wokeness as law and create costs for
future presidents wanting to adjust the status quo back toward unpopular
policies. Regardless, executive and judicial actions are complementary, not
substitutes for one another. The executive branch taking a new position on
Title IX, for example, might lead to lawsuits and bring the issues involved
to the attention of the judiciary.
Table 3. An anti-wokeness agenda
Low-Hanging
Fruit
(Little liberal buy-
in required)
Executive
Branch
Amend EO 11246 and 11478, ban
affirmative action instead of
requiring it in government hiring
and contracting; change
regulations requiring goals,
timetables, and race- and sex-
consciousness and preferences
Define discrimination as
intentional discrimination, not
disparate impact, whenever
possible
Change rules for OCR:
permanently establish intentional
standard of discrimination;
remove all statistical standards
under Title IX; make
discrimination a matter of
treatment of individuals, not of
systemic issues that require
institutional solutions
Judiciary Overrule Griggs v. Duke Power
Company (1971), on statutory or
constitutional grounds
Restrict reach of harassment law
based on the First Amendment
Declare affirmative action and set-
asides illegal under Title VI and
Equal Protection Clause (Students
for Fair Admissions v. Harvard
likely to be decided by the time
this book is released)
Declare OCR social engineering in
schools and universities contrary
to Title IX
Revisit Christiansburg Garment
Co. v. EEOC (1978), to allow
defendants, not just plaintiffs, to
more easily collect attorney’s fees
in civil rights suits
Red states Use power of contracting and
control over pensions to ban
affirmative action and race- and
sex-consciousness in firms
Call for an inventory of race- and
sex-conscious programs with an
eye to elimination
Defund diversity bureaucracy
within state employment, schools,
and the university system; create
legal causes of action to deter
undesirable behavior
More difficult
projects
(Require liberal
buy-in or defeat, or
rely on more
Congressional
action
Defund or take away power from
OCR, OFCCP, and EEOC
difficult legal
arguments or
executive actions)
Repeal Civil Rights Act of 1991,
Civil Rights Restoration Act of
1987
Federal ban on programs that are
race- and sex-conscious
Remove punitive damages for civil
rights lawsuits
Aggressive
executive
action
Use OCR to go after schools that
engage in reverse discrimination
or suppress speech
Use OCR, EEOC, and OFCCP to
attack corporations and local
governments that engage in
reverse discrimination
Find ways to go after
accreditation bodies pushing
identity politics
Executive orders are the easiest form of action a president, or perhaps
any official, can take in the American system. This is why presidential and
gubernatorial candidates specify which ones they will sign upon coming
into office. Affirmative action is mandatory across major institutions
because of Executive Order 11246 and how that document has subsequently
been interpreted. It now mandates detailed record keeping on the part of
employers and all but requires quotas throughout major corporations. Only
a few years later, in 1969, President Nixon signed EO 11478, which
required affirmative action in the federal government. A Republican
president should amend both these documents to specify that
nondiscrimination cannot be established based on disparate impact, and that
the law does not require either identity-based record keeping or affirmative
action.
Going further and instituting a ban on racial record keeping and goals
and timetables would potentially be even better, as it would make life much
more difficult for any institution that simply wanted to either get around
presidential directives or openly bring back old policies. Ending affirmative
action mandates under a revised EO 11246 would likely lead to
corporations keeping their current policies so that they can be ready for the
next time a Democrat comes into office and regulations inevitably go back
to what they were. While freedom of association would be ideal, pressure
needs to come from both sides to counter the left’s deep commitment to
race and sex preferences. A Supreme Court decision finding that there is no
legal basis under which EO 11246 can require affirmative action from
contractors would solve this “ping-pong problem” across administrations.
In the meantime, conservatives need to be able to use their own leverage in
response to liberal demands for race- and sex-conscious corporate
governance.
The disparate impact doctrine has been applied to the federal
government and institutions it funds through Title VI, and through Title VII
to hiring in the private sector and state and local governments. Eliminating
this standard can be done exclusively through the executive branch, with
executive orders or within individual agencies. This is the step that the
Trump DOJ tried to take in its last days in office. There was also
consideration of getting rid of disparate impact in the Department of
Education and in Housing and Urban Development.8 While the standard
was never officially revoked, the Trump administration did step back from
applications it deemed dubious, ending, for example, the Obama-era policy
of investigating schools with differential rates of discipline between white
and black students.
Some of the excesses of Title VII can also most likely be taken care of
through executive action via appointing sympathetic EEOC commissioners
and executive orders. The only complication in this case is the Civil Rights
Act of 1991, which specifies details regarding the burden of proof in a
disparate impact claim. However, it does not explicitly mandate that
standard in the first place, and the reason that the statute is vague is because
its authors themselves were divided and decided to cede the issue to the
courts.9 In contrast, the framers of the Civil Rights Act of 1964 were
unanimous in rejecting disparate impact and wrote their objections into the
bill. Thus it is reasonable to believe that the explicit rejection of disparate
impact in 1964, reflected both in the legislative history and in provisions
that have never been repealed, trumps the indirect approval of the standard
in 1991. The executive branch should, in interpreting Title VII, rely on the
intent of the Congress that passed the Civil Rights Act.
Either way, relatively new developments in Supreme Court
jurisprudence point to the conclusion that disparate impact violates the
Constitution. It has become well-established law that all racial
classifications used by the government to treat citizens differently can only
be constitutional if they pass a test of strict scrutiny, which means that they
must be narrowly tailored to achieve a compelling government interest.10
Importantly, this includes racial classifications meant to help non-whites,
which is why affirmative action cases involving public universities are
judged under that same standard. Yet this leads to some ludicrous
conclusions under disparate impact doctrine. Let us say that an employer
wants to use a test of cognitive ability to hire employees, and that the
employer assumes that, as with all cognitive tests, it should be expected to
reveal a performance gap between whites and blacks. Using that test is,
since Griggs, the textbook case of the kind of action that can lead to a
disparate impact lawsuit. But not using the test, because whites will do too
well on it, should in theory run into its own problem under Title VII. In fact,
here the discrimination is not even unintentional, as in a disparate impact
case, but intentionally meant to exclude a certain group.
As made clear in Scalia’s concurrence in Ricci v. DeStefano (2009),
disparate impact under Title VII is naturally in tension not only with the
prohibition on intentional discrimination under Title VII but more
fundamentally with the Equal Protection Clause. If the EEOC or some other
government agency will enforce only certain kinds of disparate impact
claims, that is, those targeting practices that disproportionately harm the
hiring prospects of non-whites or women, and will not enforce even
intentional discrimination cases when whites or men are harmed, this also
violates the Fourteenth Amendment.11 Similarly, when the OFCCP requires
goals and timetables, it is forcing private firms to engage in racial
discrimination, which is constitutionally prohibited. The legal arguments
here are straightforward once one accepts that disparate impact and
mandatory affirmative action in government contracting are policies that
discriminate against whites.
The constitutional problems with disparate impact applied to Title VII
do not end there. Let us say that, completely contrary to the historical
record, Congress had intended for disparate impact to be the relevant
standard for all laws and regulations aimed at combating discrimination—
and, moreover, that this was somehow allowed under the Equal Protection
Clause. Disparate impact would still be unconstitutional, because it
delegates unlimited power to government agencies to regulate the behavior
of employers. The Due Process Clause of the Fifth and Fourteenth
Amendments has been used to invalidate statutes in both criminal and civil
cases. The doctrine of disparate impact, which says that basically
everything is illegal and the government will decide which violations it
goes after, is unconstitutionally vague regardless of whether it has statutory
authority or not. The argument that it would be a stretch to say that
Congress did in fact delegate this authority to the executive branch and
courts is interesting to note, but a moot point under this analysis.
Finally, it has been federal bureaucrats and the courts that have used
Title IX to engage in social engineering across schools and universities. As
Melnick points out, this has been through a highly unusual sequence of
events, in which OCR avoids the APA rule-making process by issuing
“guidance” documents, those documents are cited by the courts, and the
agency in turn cites the courts for justification for what it is doing. The
Trump administration withdrew the Obama-era regulations in this area, but
in summer 2022 the Biden administration began the process of reinstating
similar policies through notice and comment procedure.12 This will make
them more difficult to withdraw by a Republican administration, and also
more difficult for courts to overturn than they otherwise would be.
Nonetheless, even if an administration goes through notice and comment
procedure, it cannot go beyond the plain text of a statute. Title IX says no
student can be “excluded from participation in, be denied the benefits of, or
be subjected to discrimination under any education program” on account of
sex.
The idea that sexual harassment committed not by employees of an
institution but through actions taken by other students could be a form of
sex-based discrimination would have appeared odd to the Congress that
passed Title IX, and would have been a radical interpretation of the statute
until the 1990s. Courts are to give more deference to regulations that
undergo notice and comment procedures than they are to those released
through Dear Colleague letters, but that deference is far from absolute.
Even as the new Biden regulations make their way through courts, the next
Republican administration should similarly undo them through APA
processes, at the very least giving institutions a temporary reprieve and
making life more difficult for the next Democratic administration. As with
the move away from affirmative action in government contracting and
disparate impact, the goal should be to define discrimination in a way that
limits it to direct evidence of unfair treatment of a specific individual, rather
than basing the concept on statistical outcomes such as differences in test
scores or sports participation.
The four fundamental pillars of wokeness as law—affirmative action,
disparate impact, harassment law, and Title IX—can to a large extent be
handled through the executive branch and the courts alone. A president who
wanted to do so could end mandatory affirmative action in government
employment and among government contractors practically overnight. This
would be of no small impact; OFCCP regulations cover 25 percent of the
American workforce, and another 6 percent works for the federal
government.13 Two strokes of the pen could therefore change the major
regulations under which a third of American workers live. This is a great
deal of power to put in the hands of one individual, and may be seen as
inconsistent with the principle of separation of powers. But it is important
to note that this is the way affirmative action among government contractors
and in the federal bureaucracy became mandatory. Clarifications on
Executive Order 11246 and Executive Order 11478 that got rid of
affirmative action policies would relinquish government power that had
been illegitimately taken in the first place.
The path forward on disparate impact is no less clear. There are signs
that the Supreme Court is poised to act in this area. In Alexander v.
Sandoval (2001), it punted on the question of whether Title VI allowed
discrimination based on disparate impact, but sounded a skeptical note.
Eight years later, Ricci arguably clarified that the Civil Rights Act of 1991
had written disparate impact into Title VII, while the decision only made it
slightly more difficult for plaintiffs to win such cases. Justice Scalia wrote,
in his concurrence, that the decision “merely postpones the evil day on
which the Court will have to confront the question: Whether, or to what
extent, are the disparate-impact provisions of Title VII of the Civil Rights
Act of 1964 consistent with the Constitution’s guarantee of equal
protection?” In Texas Department of Housing and Community Affairs v.
Inclusive Communities Project, Inc. (2015), the Supreme Court upheld
disparate impact as applied to the Fair Housing Act of 1968, but only by a
vote of 5–4, the slimmest of margins.14 Justice Clarence Thomas dissented
in order to “point out that the foundation on which the Court builds its latest
disparate-impact regime—Griggs v. Duke Power Co.—is made of sand.”
The swing votes over the last few decades were until recently wielded
by Justices Anthony Kennedy and Sandra Day O’Connor, which helps to
explain why a supposedly conservative Supreme Court did not move more
aggressively on disparate impact or other areas of civil rights law. Kennedy
was the author of both Ricci and Texas Department of Housing. Like
O’Connor, he had a habit of denouncing the more extreme interpretations of
civil rights law, clarifying, for example, that whites are just as protected as
blacks, and mandating a “strict scrutiny” standard for government racial
classifications. At the same time, both justices usually shied away from
articulating sweeping principles that would fundamentally remake civil
rights law, giving bureaucrats, trial lawyers, and other judges enough
wiggle room to continue on as before. The Ricci decision ruled in favor of
white and Hispanic firefighters who were denied promotions but left the
disparate impact regime largely untouched.
O’Connor was the author of Grutter, which banned a strict quota or
point system in college admissions but allowed the use of race as a plus
factor, a distinction that, as the Rehnquist dissent pointed out, could only be
maintained by burying one’s head in the sand regarding how affirmative
action is actually practiced. City of Richmond v. J. A. Croson Co. (1989)
was another O’Connor decision, this one throwing out a minority set-aside
program by ruling that government can only distribute resources according
to race as a way to redress discrimination against a specific group that has
occurred in a narrow context. The decision was practically ignored by the
Bush and Clinton administrations at the federal level, but at least caused
230 state and local authorities to suspend racial set-aside programs, with
only 100 of them remaining by 1995.15
Six years after Croson, O’Connor wrote the opinion in Adarand
Constructors, Inc. v. Peña (1995), which again raised the standard for
justifying minority set-asides, this time tossing out a federal program. In
response, the Clinton administration announced that minority set-asides
would only be allowed after a study could show credible evidence of
discrimination.16 Unsurprisingly, federal, state, and municipal authorities
would go on to commission studies and reviews that told them what they
wanted to hear, and contracting preferences based on race and sex continue
to be a normal part of the machinery of government.
One can summarize Kennedy-O’Connor jurisprudence on civil rights
issues in the following way: courts should denounce racial preferences in
strong terms, and throw them out in certain cases, while clarifying that they
will be allowed as long as government can do enough paperwork justifying
them, in which case things can continue as before. This worldview faces the
fatal flaw of placing confidence in the ability of politicians to fund and
reasonably evaluate unbiased social science research on our most divisive
hot-button issues. Given how poorly we’ve seen social science hold up even
when it has been conducted far away from political pressures, this faith is
completely unreasonable, and the results of cases like Grutter and Adarand
were easily foreseeable.17
Whether by conscious intent or not—and the clarity of evidence
presented in the Rehnquist dissent in Grutter along with other judicial
opinions argue for a less charitable interpretation of motives—the Kennedy-
O’Connor regime we have been living under was a political compromise
that gave government officials and universities that wanted to discriminate
the best of all worlds as long as they were willing to spend enough money.
It let them do what they wanted, while giving the false impression that their
favored programs had been scientifically established as well-tailored efforts
to meet a societal need. In reality, they were a means for achieving
redistribution and balancing according to racial criteria.
In 2006, O’Connor was replaced by Samuel Alito, and a little over a
decade later President Trump would appoint Brett Kavanaugh to fill the seat
vacated by Kennedy. Trump further moved the Court to the right by
appointing Amy Coney Barrett after the death of Justice Ginsburg. The
doctrine of disparate impact was hanging on by a thread before; now is the
time to strike a blow against the tool that, with very little basis in
democratic legitimacy and even less in the Constitution, has managed to
remake American governance, politics, and culture. The political right now
has a sympathetic court, and it is simply a matter of conservative lawyers
and nonprofits recognizing the importance of the issue and being strategic
in finding the right cases to bring before it.
The same logic holds for minority set-asides and other forms of
government race-consciousness. In contrast to disparate impact, affirmative
action in college admissions has been in conservatives’ crosshairs for
decades, and by the time this book is released, Students for Fair Admissions
v. Harvard may have already been decided. Given how often affirmative
action cases are litigated, it was always certain that the Supreme Court
would have an opportunity to hear one soon after the rightward shift of the
Trump years was completed. Meanwhile, disparate impact was accepted as
the correct interpretation of Title VII in 1971, and in the years since, the
Court has rarely revisited the fundamental constitutional and statutory
soundness of that ruling. While conservatives wait for the judicial branch to
act, they should use the power of the executive branch to roll back the
disparate impact doctrine, although it will take the Supreme Court finally
addressing it head-on to make any changes permanent.
On Title IX, the courts have done an excellent job in striking down
sexual assault tribunals. They should also revisit long-held precedents about
the regulation of sports, which rest not on statutory language, or even rules
made by a federal agency, but unilateral statements that lack both
democratic legitimacy and the legal deference accorded regulations enacted
in compliance with the APA. Until we get more reasonable regulations on
the Title IX issue within the executive branch, courts should revisit the First
Circuit decision in Cohen v. Brown University, which ratified an OCR
policy encouraging balance in the number of male and female students
participating in sports. There was nothing in the plain language of Title IX,
and no official rule adopted by OCR, that required such a result. Courts are
in a position to put an end to the regulation of sports and sexuality in
college life.
Limiting the power of OCR through the courts may prove difficult, as it
has evolved a strategy of enforcement that relies on reaching settlements
with universities and avoiding the judiciary; it should be a priority of
conservatives to find creative ways to get its Title IX regulations in front of
federal judges. Ironically, it may have been Trump’s victory that prevented
judicial review of the regulatory regime OCR has established. In 2016, the
Supreme Court agreed to hear the case of G. G. v. Gloucester County
School Board, which challenged Title IX guidance on transgender issues.
Upon Trump’s victory and the revocation of the policy under question, the
Supreme Court remanded the case back to the Fourth Circuit.18
Pushing back against Title IX regulation is low-hanging fruit in the
sense that the legal arguments one would rely on are within the mainstream
of established jurisprudence. At the same time, finding the right case that
can establish a broad principle is more difficult, though all it ultimately
requires is financial and legal support for one university or school system
willing to take a stand.
Harassment law is an area in which the legal arguments for pushing
back against wokeness are straightforward, but an actual decision would
require a somewhat radical break with precedent. Recent decades have seen
the Court move toward a more absolutist interpretation of the First
Amendment on issues as diverse as hate speech, campaign finance laws,
and pornography. Yet anti-harassment law remains siloed from this legal
development. It is far from obvious why this should be the case. Courts
should rely on the arguments put forward by Eugene Volokh and others to at
the very least acknowledge the trade-off between the First Amendment and
the current state of civil rights law. The ultimate aim should of course be to
make regulating speech in the workplace just as difficult and
constitutionally problematic as doing so anywhere else.
Finally, Section 1981 could potentially be a problem and pick up the
slack in any rollback of Title VII. Right now, the effect of the law is limited.
As recently as 2020, in Comcast Corp. v. National Association of African
American–Owned Media, the Supreme Court unanimously affirmed that the
Reconstruction-era statute requires but-for causation to make a claim,
unlike Title VII, which only requires the plaintiff to show that
discrimination is a “motivating factor” in any prohibited behavior. The
relevant difference between “but-for causation” and “motivating factor”
analysis is one of those distinctions that is good enough for lawyers but
could easily be picked apart by an amateur logician. The important thing to
understand is that but-for causation is treated as a higher standard. In
addition, Section 1981 requires intentional discrimination and only applies
to race, thus making it less relevant than Title VII to the way most
institutions operate.
Still, one wonders whether liberals in the judiciary have allowed Section
1981 to remain relatively weak simply because they already have an
expansive Title VII; if the latter had never been passed, one can imagine
them having been much more creative in interpreting its predecessor from
nearly a century before. Once Title VII is limited to its proper role, it will be
important to remain vigilant against judges inclined to find new meanings
and applications in Section 1981 cases. To further constrain the reach of the
law would be an even better option. The Supreme Court did not even
recognize a private right to action under Section 1981 until 1975, a fact that
the Comcast opinion seemed to attribute to the overzealousness of a
previous era.19
During my first summer in law school, I worked as an intern for the
Center for Individual Rights, a conservative nonprofit that had been
involved in Gratz and Grutter.20 This gave me a background in civil rights
law and affirmative action issues. As part of my job, I would sometimes
search for initiatives and programs at universities that likely violated the
law. Even when it has upheld affirmative action, one thing that the Supreme
Court has made clear is that quotas are an unacceptable form of racial
discrimination outlawed by the Equal Protection Clause. I remember once
finding a scholarship that a university made available to non-white students
only, which struck me as more extreme than a quota and the kind of thing
that would get thrown out in court. An attorney was supervising my work,
and when I went to him with what I thought was new and interesting
information, he made clear that such programs were normal. We were a
small office with fewer than ten employees, even if one counted the second
intern and me. I left the meeting with the impression that universities and
businesses were doing things all the time that would be ruled illegal if they
came to the attention of the Supreme Court. But lawsuits are long and
expensive, and conservatives doing nonprofit work are heavily
outnumbered by liberals. Lawyers are more likely to be liberal than
conservative, and the ratio is particularly lopsided at the top firms and in the
nonprofit world.21
It is not enough to bring the effects of civil rights law to the attention of
the president and members of his cabinet and encourage them to make
changing them a priority. One also has to let idealistic individuals in favor
of progress and liberty and opposed to wokeness know that there is a
practical way to fight back. Civil rights law, like other legal areas, is
something of a battle of attrition between bureaucrats and lawyers. Progress
depends not only on getting judges and bureaucrats to see things in the way
one prefers, but also on galvanizing enough members of what is sometimes
called “the managerial class” within and outside of government to build
upon legal victories and blunt the impact of defeats. Wokeness has no
problem attracting opposition among the young and idealistic. This can be
seen in the proliferation of authors at Substack who have been hounded out
of major publications due to violations of PC orthodoxy, and in the success
of outlets like Quillette. If popular energy surrounding the anti-wokeness
cause can combine with the legal knowledge, infrastructure, and mass
appeal of the conservative movement, it may be a formidable enough
alliance to break the excesses of civil rights law.
Going on the Offensive
Once we get past the low-hanging fruit—that is, important policy changes
that can be taken care of through the courts or the executive branch without
liberal buy-in or support—other questions regarding what to do about
wokeness present themselves. This section considers four issues: what to do
about reverse discrimination, the prospects for federal legislation, what can
be done at the state level, and the need to draw lines in the sand regarding
further expansions of civil rights law.
Reverse Discrimination
Even if civil rights law helped create wokeness, that does not mean that
removing its legal underpinnings would immediately change the culture.
Many major corporations seem committed to the principles of “diversity”
and “inclusion,” euphemisms for affirmative action, even beyond what the
law would require, and the universities are even more extreme in this
regard. What attitude should opponents of wokeness have toward such
programs? It can be argued that any anti-discrimination law in the private
sector interferes with freedom of association and hinders social evolution
and market efficiency. Thus anti-white and anti-male discrimination should
be tolerated in the name of these values and goals, for the same reasons
other forms of discrimination should be.
Indeed, as argued in previous chapters, markets can solve the most
egregious forms of discrimination. Even if they do not, a free country as a
general principle believes in freedom of association even if people make
unfair or bad decisions in their personal lives, as long as they are willing to
suffer the consequences of their actions—in this case, lost profits and
financial opportunities that result from discrimination. As the legal scholar
Richard Epstein has pointed out, the classic justification for government
abridging freedom of association or freedom of contract is to account for
negative externalities—that is, costs imposed on third parties. But when
someone engages in an act of private discrimination, they suffer the costs of
doing so themselves.22 While third parties might suffer due to their distaste
for discrimination, if we are going to take taste-based preferences into
account, there is no principled way for society to decide to prefer some
people’s desire for integration or a society that doesn’t discriminate over
those with the opposite preferences making decisions about their own
private lives.
There is thus a philosophically elegant, perhaps irrefutable, libertarian
case for getting rid of all anti-discrimination laws. Perhaps its logic might
break down in a society with strong social taboos against mixing between
groups, as in the Jim Crow South and caste-based India. Yet in modern
America, discrimination is culturally taboo, and those who want to favor
whites or men while doing business are likely to face huge costs in terms of
public relations and consumer sentiment, plus the aforementioned costs
resulting from the discrimination itself.
That being said, no matter how strong the philosophical or practical
case is for doing away with anti-discrimination laws in the private sector,
political reality means that they are here to stay. Legislation requires
broader consensus than judicial decisions or executive actions, and liberals
are unlikely to agree to get rid of anti-discrimination laws anytime soon.
Even most Republicans would likely be uncomfortable taking such a step.
Because of the status quo bias inherent in a system that makes it difficult to
pass legislation and the popularity of anti-discrimination laws—that is, as
written and debated in 1964, not what came later—any realistic proposal for
action has to begin with accepting that they are not going anywhere. The
rise of environmental, social, and governance (ESG) investing, in which
Wall Street firms acting as corporate shareholders push for diversity in
hiring and promotions as well as other left-wing causes, represents an acute
threat to American ideals based in the private sector, and may make a purely
libertarian approach to fighting wokeness unrealistic.
What, then, should the conservative or libertarian position be with
regard to anti-white and anti-male discrimination? As mentioned above,
civil rights laws as written are generally blind to race and sex. This is
something that tended to be ignored by the judiciary in earlier decades, but
by the 1980s, there were Supreme Court decisions emphasizing the fact.
Nevertheless, in most institutions today even unintentional discrimination
against protected groups, defined and interpreted by judges, bureaucrats,
and lawyers as disparate impact, is forbidden, while intentional
discrimination against whites and men is accepted, if not mandatory.
This is the result of what I earlier called Kennedy-O’Connor
jurisprudence, which involved a series of decisions that appeared to mark a
right-wing shift in civil rights law but if anything may have made the left-
wing position stronger. Given this reality, it would be a mistake to ignore
anti-white and anti-male discrimination in the private sector; as long as anti-
discrimination laws exist at all, institutions need to feel pressure from both
sides in order to achieve some kind of balance. Taking a different approach
would cause employers and institutions to continue to bend over backward
to favor protected groups, even if one could argue that reducing
enforcement across the board could at least lower the overall burden of civil
rights law in terms of hindering economic efficiency and restricting
freedom.
Given this reality, the best option is to call for a return to the original
meaning of the Civil Rights Act of 1964, which would involve government
simultaneously taking a harder line against anti-white (and in some cases
anti-Asian) and anti-male discrimination, while narrowing the definition of
discrimination as applied to women and minorities. Current practice is so
far removed from the law as written and originally interpreted that such a
suggestion may seem like a radical innovation. But this is clearly the
direction to move in, as it is consistent both with sound legal reasoning and
public opinion.
There does not need to be a trade-off here. In April 2021, the Project on
Fair Representation wrote a letter to Coca-Cola warning that quotas it had
set for outside counsel were illegal.23 Corporations have felt free to
undertake such initiatives. Moreover, they have likely thought that, even if
they invite anti-white or anti-male discrimination lawsuits, the risk is worth
taking. This may result from ideological preference, or because such
programs provide a defense to any charge that could be made alleging
discriminating against groups that civil rights activists and lawyers care
more about defending. It is important to change that calculation. While
conservatives and libertarians can debate the wisdom of anti-discrimination
laws, as long as they are on the books, they have to be applied equally
across different demographics.
One likely cannot expect the EEOC or state civil rights offices to be
willing to treat all kinds of discrimination equally. The Supreme Court has
made it clear that whites and men are protected by the Civil Rights Act and
the Equal Protection Clause. But, as Gail Heriot writes, “to my knowledge,
the EEOC has never brought a disparate impact investigation or lawsuit on
behalf of white males. Nor has the Supreme Court entertained a disparate
impact case on behalf of anyone other than women and racial and national
origin minorities.”24 This is unsurprising, given that the EEOC was the
organization that pioneered disparate impact and made it part of American
law, with the explicit goal of being able to do more to root out
discrimination against non-whites and women. Yet different standards of
justice were not what the framers of the Civil Rights Act intended, and the
Supreme Court has made clear that if they had, such a system would be
unacceptable.
This means that it is likely impossible to turn the EEOC into a force that
fairly and prudently applies the law as written. The fact that it focuses so
much on disparate impact indicates how little evidence there is for blatant
discrimination within American society. If racism—as the concept was
understood in the 1960s—was a major force in the US today, then an
agency with around two thousand employees would have its hands full
stamping out intentional discrimination and not have the time or energy to
create and enforce new standards that contradict statutory language. Each
bureaucracy attracts certain kinds of employees based on the issues it
champions and its reputation. Given the central role that the EEOC has
played in creating the system we live under, it is no surprise that it is staffed
mainly by ideologues committed to a far-left-wing understanding of race
and gender issues. Those who disagree with them should seek to restrict the
power and funding of that organization to the greatest extent possible, with
complete abolition being the ultimate goal.
The same goes for the Office of Federal Contract Compliance Programs,
which should have much less to do once the executive order mandating
affirmative action for government contractors is repealed or modified. The
organization can either continue to exist as a body that simply receives
complaints alleging intentional discrimination, or it can be abolished and
replaced with a new organization that takes a similarly passive role. The
Reagan administration cut staff at both the EEOC and the OFCCP and in
practical terms gave them less to do.25 This is the correct model for future
Republican administrations to follow, although they should also seek more
lasting changes that will reduce the power of these agencies in the long run.
The EEOC and the OFCCP are the most important institutions in the
executive branch to reform or abolish, but they are far from the only ones
that should be forced to move away from quotas, affirmative action, and
race- and gender-consciousness. Top officials at the White House and the
Department of Justice should promulgate guidance and directives that make
sure that all government activity is consistent with the original intent of the
Civil Rights Act as clarified by new executive orders. In 2021 the SEC
approved new diversity requirements for corporate boards listed on
Nasdaq’s US exchange. This attracted relatively little attention, despite the
fact that all federal agencies are officially required to practice
nondiscrimination. This decision and others like it should be undone.
The federal government can also go after state and local governments
that engage in anti-white and anti-male discrimination. The tool to leverage
in this case is Title VI, which bans discrimination among state and local
entities that receive federal funding. The website of the California secretary
of state, for example, informs the public that all corporations with executive
offices located in the state must meet certain board quotas for women and
minorities.26 Title VI was originally written to help undo state-sponsored
discrimination in the South. Unfortunately, it has itself morphed into a tool
of social engineering. That being said, Title VI does provide the methods
through which to undo some of the harm it has previously caused.
The Role of Congress
Legislation is generally more transformative and long-lasting than
actions taken by the executive branch. It is also much harder to enact,
especially with regard to hot-button issues and in an era of mass
polarization. While the Civil Rights Act of 1964 and other pieces of
legislation set most of the groundwork for wokeness as law, it has been the
executive and judiciary from which the most damaging innovations in this
area have sprung, and one of the main arguments in this chapter is that they
can be undone through the same channels. Nonetheless, if wokeness is as
harmful as this book argues, it is at least worth considering whether and to
what extent there can be congressional fixes. Legislative initiatives, even
ones that do not ultimately pass, are another useful tool.
Congress could, in theory, abolish disparate impact and EEOC, set
reasonable standards for Title IX, and limit the breadth and reach of
harassment law. As it is unlikely to do any of these things, individual
members can at the very least raise awareness of the issues involved and
demand information that can expose and make clear the extent of civil
rights abuses. Sen. Bob Dole was able to commission a report from the
Congressional Research Service in 1995 on federal programs that used
racial or ethnic standards, of which it turned out there were 160 at the
time.27 Nearly three decades later, it would be interesting to find out what
that number is now. Gail Heriot likewise calls for a “disparate impact
inventory” that would uncover all places in the federal government where
that standard is used to infer discrimination.28 Finding and publicizing such
information can have two effects. It both provides a list of programs that
can be discontinued—either through legislation or executive order, the latter
perhaps coming in the aftermath of a favorable Supreme Court decision—
and helps create the political conditions under which such action can be
taken.
Ambitious federal legislation such as eliminating all racial and gender
preferences would have no hope of passing, given the continuing existence
of the filibuster and the current state of the Democratic Party, and trends in
polarization indicate that this will be the case for the foreseeable future.
Moreover, the president signing such a bill would simply accomplish much
of what can be done through what this chapter earlier referred to as low-
hanging fruit actions, those taken through the judicial and executive
branches. Yet while a legislative effort to ban race and gender preferences
would be close to impossible and perhaps unnecessary, Republicans may
decide that conducting regular votes on the topic would be to their political
advantage. Whether it is at any particular point in time will likely depend on
the political context. Republicans may want to direct the attention of the
public to issues on which they have an advantage during the administration
of an unpopular Republican president, but not when the flailing incumbent
is a Democrat. At the very least, drawing attention to wokeness as law
would send a message that would reach conservative judges, bureaucrats,
state legislators, lawyers, and funders of political causes, even if it is
ignored by or even inspires a bit of a backlash among others.
Instead of more sweeping bills, a Republican-controlled Congress could
nibble around the edges of civil rights law, passing legislation that attracts
little public attention but may have major effects on the incentive structures
faced by bureaucrats, lawyers, and potential plaintiffs and defendants in
court cases. Topics like federal jurisdiction, whether a plaintiff can get
attorney’s fees and how much, and the burden of proof in different kinds of
actions arouse little in the way of mass sentiment; nevertheless, as seen in
the rise of certain kinds of lawsuits in the aftermath of the CRA of 1991,
they can have a profound impact on how the law is practiced and its societal
effects. Sean Farhang has written about how liberals in Congress have
managed to outsource much of the enforcement of civil rights law to the
courts, which was a deliberate strategy to create a perpetual administrative
regime immune to challenges from future Republican presidential
administrations that might seek to scale it back.29 The two lessons from his
work are that executive actions to roll back civil rights law are not enough,
and that conservative lawmakers and judges should follow liberals in
always being on the lookout for ways to weaken this system. Moreover, if
there are measures to enforce an anti-wokeness policy agenda through the
courts, they should be pursued. The 2021 Florida bill creating a cause of
action against schools that teach critical race theory is a good example of
this.30 It even includes attorney’s fees for parents who successfully file
suits, mimicking federal civil rights law.
State Governments
This book has for the most part ignored state law, which in any case
tends to be less important than federal regulations. But to the extent that an
argument can be made for effective policy change by state governments, it
would look very similar to federal efforts. As implied above, creating legal
causes of action to go after wokeness as law, as Governor Ron DeSantis did
in Florida, can be done at either the state or the federal level. The fact that
some states tend to be under unified Republican control most of the time
creates more room for action, and it is worth exploring how far things can
be pushed.
When possible, states should enact the kind of sweeping legislation that
would be nice to have but is likely impossible at the federal level. To repeat,
this means banning racial and gender criteria in government hiring and
programs and, when that is not feasible, making data available that can
shine a light on unpopular practices. Unlike the federal government, a state
exercises direct control over its higher education system, and there is little
reason not to go to war with the diversity bureaucracy, with the ultimate
aim of getting universities out of the business of social engineering or
taking a side in the culture war.
State control over contracting and pensions is another form of leverage.
Republicans in recent years have with some success used this leverage to go
after ESG investment firms that have expressed an intent to divest from
fossil fuels or gun manufacturing.31 In the field of contracting, states can
use legislation or executive orders to require color- and gender-blindness
among those receiving government funds, in effect doing the opposite of
what the federal government has done through the OFCCP.32 Businesses
may have to decide whether they want to comply with federal or state
programs, which can lead to lawsuits that challenge the regulations
promulgated under EO 11246. Government contracting is unique in the
extent to which it gives the state leverage over corporate actors. The
OFCCP and its regulations have become so influential not because EO
11246 had a strong constitutional or statutory basis—in fact, the opposite is
true—but because it was in this area that liberals working in Washington
could most easily assert their power. The same may be true for those who
exercise power in state capitals.
Lines in the Sand
Those opposed to wokeness should also take a close look at age and
disability discrimination. Both have led to absurdities, though perhaps not
yet at the level of policy related to race and gender. The ban on age
discrimination in particular is a major hindrance to reasonable initiatives
related to everything from public safety to scientific innovation. Fitness
standards for police officers and firefighters are normed based on age just as
they are based on sex. More importantly, the threat of lawsuits for
mistreating older employees is likely a major barrier to progress in
industries that require a great deal of physical energy or high levels of
cognitive capability. This can be seen in the fact that tech companies have
been targeted in age discrimination lawsuits, sometimes explicitly for acting
on the belief that younger workers might be more innovative and
productive.33 Meanwhile, the Americans with Disabilities Act has made
everyone a potential victim, and has imposed massive burdens on
businesses, communities, and individuals without any consideration of costs
and benefits. Civil rights law as applied to disability does not particularly
rely on bureaucratic and judicial innovation. As such, what can be done
here might be limited. Still, the generalized case against anti-discrimination
laws—that they infringe on liberty and are bad for technological and social
progress—should be kept in mind when deciding how to define disability
and what counts as discrimination in this area.
With the exception of demanding consistency in the government
opposing discrimination against all citizens on account of race and sex,
conservatives must draw a line in the sand on any and all further expansions
of civil rights law, including expanding the definition of discrimination and
creating new protected categories. Twenty-one House Republicans were co-
sponsors of a bill that would write gender identity into civil rights law.
Under pressure from journalist Nate Hochman, writing for National Review,
several dropped their names from it in late 2021.34 Given the way that many
of the key clauses of the Civil Rights Act have been twisted to mean the
exact opposite of what they originally meant, and the creativity with which
the trans movement has sought to manipulate language and thought, it does
not take much imagination to see the threat to liberty that such a bill
becoming law would present.
In March 2022, the House of Representatives passed, with bipartisan
support, the Creating a Respectful and Open World for Natural Hair
(CROWN) Act, which, bans “discrimination based on natural and protective
hairstyles that people of African descent are commonly adorned with”
under civil rights law.35 While I certainly have no desire to see individuals
discriminated against for their natural hairstyle, it is not the place of the
federal government to dictate standards of grooming, aesthetics, and style in
private institutions, even if one may reasonably take a different position
when it comes to government institutions themselves.
In addition to preventing liberals from allowing the anti-discrimination
principle to begin covering hair or any aspect of grooming, conservatives
should fight any attempt to expand the old category of “official minorities.”
The Obama administration was considering adding Middle Easterners as a
racial classification, an effort that was quashed under Trump but has been
revived under Biden. Under the current system, every creation of a new
“minority”—whether through further splicing the races or a conceptional
innovation like “hair discrimination”—is a threat to the principles of merit,
freedom, and limited government. In the area of civil rights law, this is one
of the clearest lessons we have from the last six decades.
Getting Water from the Ocean
Asking what should be done to fight wokeness while in power is somewhat
like asking where to get water from the ocean. Opportunities abound. The
only question is the best ways to move forward. The two concepts of
affirmative action and disparate impact are the key innovations that have
helped deform government policy and ultimately American culture. A line
can be drawn from the simple directive that employers can’t discriminate, to
the EEOC coming up with disparate impact, to ultimately the elimination of
merit-based hiring and the regulation of humor and romance in the
workplace. Every link in the causal chain can be conclusively established.
Ideology and the official justifications for current practices eventually
caught up with law in the forms of cancel culture and claims of systemic
racism infecting all American institutions. Seeking to modify affirmative
action executive orders and adopting the plain meaning of discrimination
that Congress voted for in 1964 are clear first steps that any administration
or legal movement opposed to wokeness should take.
This should not be the end of the battle but the beginning. Conservatives
in government must be constantly on the lookout for wokeness in
government policy. Republicans have made it unthinkable for the United
States to have a federal government that promotes abortion rights or gun
control. This is because members of the party have certain convictions on
these issues, as do many of their voters, who will hold them accountable if
they simply go along to get along whenever liberals want to use the federal
government to push their own values. In 1976, Congress passed the Hyde
Amendment, which banned federal funding for abortion. It has with certain
modifications been renewed every year since.36
If such an act were proposed for the first time today, there is no way it
would become law as long as Republicans did not have unified government
control, and perhaps not even then. Yet not only do Republicans help ensure
that the Hyde Amendment keeps getting renewed, but they also bring their
pro-life convictions with them to the negotiating table when they debate
Democrats on bills related to economic stimulus and health care.37
Conservative politicians similarly don’t just support gun rights; they remain
ever vigilant, perhaps even paranoid, regarding potential threats to the
Second Amendment. There needs to be a similar attitude toward civil rights
law, with all attempts at dividing citizens based on race, sex, or other
identity-based criteria seen as contrary to American values. Just as in other
areas, it is worth purging from the party Republicans who deviate from this
consensus.
The right hates wokeness, but its failures have resulted from seeing the
phenomenon as simply a cultural trend or class marker rather than as a left-
wing mode of bureaucratic governance. Changing this perspective requires
leadership from intellectual entrepreneurs, which in many cases involves
recovering the memories of past battles that were hard-fought at the time
but are practically forgotten today. We are now at a point where wokeness,
aided and supported by judicial and bureaucratic interpretations of the law
and the industries that they have created, has become increasingly
radicalized and inspired a backlash. Over the last decade, this backlash has
lacked a coherent theory about how we got here. The legal developments
that undergird the whole system are in many cases nearly half a century old,
and so interwoven within the fabric of government and corporate life that
even many critics of wokeness have at most only a faint understanding of
their existence.
When the resistance to wokeness has stepped into the policy arena, it
has focused on a few narrow topics, such as the doctrine of critical race
theory, which had become the basis of education curricula and corporate
and government training programs. Such efforts are to be applauded, but
they do not yet get at the root of the problem. Many of the things
conservatives and moderates fight are just surface-level phenomena—
manifestations of what are deeper assumptions and requirements that are
not only built into institutions but required to be there by law. Much like
critical race theory, civil rights doctrines that were developed in the late
1960s and early 1970s serve to divide Americans into oppressor and
oppressed classes, apply different standards to each, and infer
discrimination from statistical patterns. The main difference is that critical
race theory self-consciously does away with much of the hypocrisy that was
inherent in pushing both color-blindness and a disparate impact definition of
discrimination while paying lip service to the ideals that motivated the
passage of the Civil Rights Act in the first place.
The fight against wokeness will require a pragmatic acknowledgment
that it is going to have to be Republicans who, in the short run at least, fight
the battle. Understanding and being explicit about this fact may mean
alienating some natural allies, but it is a necessary concession to reality.
Public opinion surveys show that woke ideas now have widespread support
on the political left, particularly among whites, women, and the highly
educated, demographics that have disproportionate influence within the
Democratic Party. Liberal elites and the institutions they run have
developed a strong attachment to the equity agenda, which is why
Democratic politicians tend to overreach in this area. All of this may change
over time, as Republicans create political costs for the left by highlighting,
and bringing to the attention of the public, race- and gender-related issues
on which conservatives have an advantage. Moderates and open-minded
liberals, too, continue to make the case for individual liberty to their own
side. For now, however, it will have to be conservatives who take the
political initiative.
It is important to realize that there is no free marketplace of ideas as
long as civil rights law remains what it is. Institutions are only allowed to
have certain official positions about the causes of group disparities and are
forced to be race- and sex-conscious as they suppress speech and
micromanage social relations. I have argued that an anti-wokeness agenda
would be politically popular. Even if it wasn’t, however, the battle would
still be worth fighting, as freedom of speech and freedom of conscience are
necessary to protect other values. And as long as we have “civil rights” as
currently defined, all other rights are either in abeyance or at the very least
in a much weaker state than they should be.
Conclusion
Unleashing American Freedom and Creativity
Societies differ greatly in their attitudes toward issues surrounding work,
sex, religion, and interpersonal norms. As a general matter, such differences
do not create major problems for those in other communities. Individuals
have major differences in taste, and such preferences, like all cognitive and
personality traits, are shaped by genetic differences within the population.
We would all be better off accepting these differences at the individual,
local, and institutional levels. While this might mean that certain
individuals, localities, and institutions make decisions that others find
unappealing, the only alternative is an endless culture war that neither side
can ever win. Unless there is some way to truly accept pluralism and
cultural diversity, the nature of the disagreements that have caused educated
Americans to split up into two great mutually hostile tribes will
permanently consume our politics.
Civil rights law is an extreme form of central planning in an area of life
where centralization of power can do some of the least good and some of its
worst damage. What was originally sold as a law needed to reform the
social system of one part of the country to deal with one major issue—that
is, the status of black people in the South—became an open-ended
commitment to ending “discrimination” in all its forms, with no natural
limits placed on what kind of behavior is covered or even which dimensions
of equality we should care about and which groups are protected. The civil
rights revolution is now deeply embedded in American law. Because of its
vagueness and the soft nature of its standards and requirements, it has
created its own internal bureaucracies within major institutions.
Enforcement depends only partly on government, being otherwise
outsourced to the court system and private parties, who have access to
grievance mechanisms both within and outside their own institutions. This
makes it reasonable to wonder whether a book like this one, focusing
mostly on legal doctrine and developments, provides a plan that is adequate
to address the challenge, or whether there is too much inertia in the system.
This conclusion has two purposes. First, it is to show that wokeness is
not as strong as it looks. Analogies to religious faith—which carry with
them the implicit argument that the phenomenon may last for thousands of
years—rest on a weak foundation. Previous chapters have made this
argument partly by showing the intellectual shoddiness of woke doctrine
and the historically contingent nature of its triumphs. Nonetheless, even
religions that owe their start to state power and without much internal logic
to them can last a very long time, which is why we may wonder whether
wokeness is here to stay. I argue that it is not.
The second purpose is to provide a vision of what a post-wokeness
world might look like. This book has by necessity been a work of
description and negation, focusing on where wokeness comes from, why it
is so harmful, and how to dismantle it. I trust the reader brings his own
philosophical inclinations to a work like this, and may see wokeness as a
hindrance to other societal goals, whether freedom, economic growth,
progress, or social stability. Therefore, this chapter tries to paint a picture of
what victory over wokeness would look like and how it would foster them.
That picture is by necessity speculative as is any work of fiction, but it can
at least give a hint as to what is worth fighting for.
Is Wokeness Inevitable, or a Paper Tiger?
Some have argued that to see wokeness as a phenomenon that can be
defeated in the short or medium term is unrealistic. They compare it to
religious faith, which, unlike a political view, is usually seen as much
deeper and more powerful.1 I’d argue that the definition of religion has two
key pieces, and both are necessary to consider. Religions are of course
distinguished by a metaphysical belief system that inspires individual
passion. But another important aspect of religions, and the one that many of
those who make the comparison to wokeness ignore, is that they are
distinguished from other belief systems by their proven ability to survive
across generations under a wide variety of conditions.
Christianity, Judaism, Islam, Hinduism, and the rest of the world
religions are, to use the phrase popularized by Nassim Nicholas Taleb,
Lindy, meaning that because they have been around for a long time we can
expect them to be around in the future.2 They have survived through
historical eras in which they have been supported by the state, oppressed by
it, or treated with indifference. As they have remained strong after an
endless number of trials, we can conclude that something very deep in
human nature causes many to find each of the major world religions
appealing.
Compare this to modern ideologies. Nazism and communism have
survived as major forces in the world as long as there have been Nazi and
communist governments. Government officials who believed in Jewish
conspiracies and the importance of race science under Hitler, or who at least
said they did, became democrats after the Second World War. According to
a report commissioned by the government, as of 1957, 77 percent of senior
officials in the West German Justice Ministry were former Nazi Party
members.3 The Soviet government wasn’t conquered by a foreign army but
stopped believing in communism in the late 1980s and then disbanded,
while in China the state remains communist in name only. The CCP deals
with protests for democracy in Hong Kong by closing some publications
and arresting a few individuals, while to root out conservative Islam in
Xinjiang it has to operate on a more industrialized scale.
Baathism emerged in the Arab world as a modernizing faith that
opposed sectarianism and Muslim extremism. It took power in two Middle
Eastern countries but now exists only as a zombie doctrine in one of them,
while Islam remains both a political force and a fundamental guide
determining how hundreds of millions live across the Arab world.
Nationalism is something in between a religion and a twentieth-century
ideology. Its rise has historically been tied to the modern state, which
usually finds it useful. But sometimes nationalism emerges in opposition to
existing power, as happened near the end of the Austro-Hungarian,
Ottoman, and Soviet empires. At the same time, people can assimilate into a
new country pretty quickly and forget their old attachments. Populations
changing their national loyalties is more common than the adoption of new
religious faiths; it has been noted that when Russia moved into eastern
Ukraine in early 2022 it found much less support among the local
population than it had only eight years before.
The key thing to realize about wokeness in this context is that it has
never faced a real stress test. Its fundamental tenets have been law in the
United States for over half a century. Practically every major nonreligious
institution in the country is forced to be conscious of race and sex, censor
the speech of its employees in the name of sensitivity, act as if disparate
outcomes are a sign of discrimination, and employ an internal bureaucracy
to enforce these rules. Wokeness thus has no history of surviving without
state support. In fact, even with state support, and with practically unlimited
rhetorical backing from elite institutions, it still struggles to win hearts and
minds. Wokeness remains mostly a political loser for the left, which is why
it obfuscates on issues like critical race theory and the fact that civil rights
law in its current form all but requires speech restrictions and racial quotas.
Wokeness does not appear to be able to motivate its adherents to make the
extreme kinds of sacrifices that are the hallmarks of true religious faith. It
can’t even convince liberals to keep their kids in inner-city public schools.
Wokeness may end up not as a religion but something analogous to
liberal democracy.4 That is, an ideology that contains a blueprint for the
organization of political life and is taken for granted by much of the world.
There is a possibility that in future generations color-blindness or not
changing an institution to accommodate the feelings of hypersensitive
employees and government neutrality in matters of culture will be seen as
outdated—like the divine right of kings. People will think that of course
society cannot tolerate massive differences in outcomes between groups,
and that it is the job of governments to do something about them. While
free speech was fine in the past, protecting certain classes from indignity,
particularly women as they become better represented in influential
institutions, will be seen as requiring compromise on that principle.
Alternatively, people might come to no such conclusions, but the laws of
political gravity might be such that interest groups organized around gender,
race, and sexuality naturally constitute themselves in developed states and
begin pushing for greater representation, which governments have a natural
tendency to give in to as this development has downstream cultural effects.
Tyler Cowen believes that the world is getting more “woke” and that
this is a good thing, but he takes the term to mean something akin to
tolerance in the classic liberal sense. In that formulation, 1950s America
would be considered more woke than the antebellum South, and Saudi
Arabia became more woke when it began to let women drive in recent
years.5 By this standard, there appears to be a greater shift to what we can
call more left-wing attitudes on race and sexuality relative to the historical
norm.6 But if wokeness is defined as an obsession with racial and gender
disparities, the restriction of speech to overcome them, and government
programs and private- and public-sector bureaucracies meant to undo them,
then there is not yet much evidence that wokeness can be a major force in
society without government backing.
France provides a counterexample to the American model of the
management of race and gender issues. Its laws generally ban the state from
collecting data on the race, religion, and ethnicity of individuals.7 This
means that, much to the chagrin of some American liberals, France cannot
have disparate impact standards, state-enforced affirmative action, or even
programs targeted at a group with a particular ancestry. It is perhaps not a
coincidence that in a country that bans the kind of data collection necessary
to enforce woke policies, we see much more resistance to wokeness as a
cultural force among the political elite. In late 2020, the French education
minister warned that “there’s a battle to wage against an intellectual matrix
from American universities.”8
President Emmanuel Macron has spoken in similar terms, and he is
something of a moderate on cultural issues. Suppose his nation is unable to
hold wokeness at bay. In that case, this will provide evidence either that
developed societies naturally drift toward wokeness or, alternatively, that
American elite culture is so strong that it can overcome resistance even on
the most difficult terrain. It must be said, of course, that in some ways
wokeness in France appears stronger than in the US, mainly due to the
existence of hate speech laws. Yet one of the main arguments of this book is
that while Americans may have more freedoms than those in other countries
in theory, in reality their speech and behavior are regulated to an unusual
degree.
As pointed out in chapter 3, the US resembles the French state in not
collecting religious data, and we are not nearly as woke on religion as we
are on matters of race and sex, giving little thought to economic or arrest
disparities between those of differing faiths. We do not care about
achievement gaps between various “white” or “Latino” subgroups, once
again because we do not have the numbers necessary to even begin to care.
This argues that the degree of wokeness in a country and what form it takes
are contingent on whether and how certain kinds of data is collected.
Outside of the West, the case for a universal move toward wokeness
seems even weaker. Part of the reason it is difficult to draw conclusions
about such things is that countries do not make up an independent set of
observations, since ideas travel across borders and the US has such a
globally powerful cultural influence. Thus if we see homosexuality
becoming more acceptable in most or all countries, is this a natural
consequence of modernity, or just a sign that Hollywood and the State
Department are everywhere? Nonetheless, there is evidence of growing
right-wing cultural populism across most of the major countries of the
world over the last decade, including Brazil, China, India, Russia, and
Turkey. Even though in most states there does tend to be a move toward
greater liberalization on matters related to sexuality, the vast majority of the
nations of the world are still far from an American-style war on sex
stereotypes and the public celebration of new sexual orientations.9
That said, it is still possible that once you undo the excesses of civil
rights law, wokeness will remain as strong as ever and eventually show
itself to be just as capable as major world religions of long-term viability
and the intergenerational transfer of belief. There are few reasons to think
this will be true so far, but regardless, the possibility cannot be dismissed
with certainty. No matter what they think about the arguments presented
here, the path for opponents of wokeness is still clear. They need to run the
experiment of eliminating disparate impact, affirmative action, and similar
policies, and find out what happens.
Imagining a Non-Woke America, and World
Wokeness as a cultural phenomenon seems permanent because it is all-
encompassing. A single intense news cycle can be disorienting and make
people question whether things will ever go back to normal. Wokeness can
be understood as a series of recurring moral panics backed up by state
power. Their cumulative effect can make them seem a natural part of our
social world. That effect is even stronger when the moral panics represent
an entire worldview that permeates everything from entertainment reporting
to how children are taught math and science. I want to end this book by
providing an outline of what a move away from wokeness would look like,
and how its triumph can come to be seen as less natural and inevitable over
time.
Charting the path forward can provide hope to critics of the
phenomenon and political activists who want to believe that their work can
make a difference. It can also serve to create a guide to what incremental
developments will look like throughout the process. There will be no V-day
celebrating the end of wokeness; rather, its defeat, like its victory, will have
involved a series of steps in the same direction, each seemingly small in its
own right but ultimately contributing to a social revolution.
In the approach to fighting wokeness argued for in this book, politics
comes first. A Republican president at some point comes into office, and his
administration goes to war with disparate impact, affirmative action, and the
current interpretation of Title IX, starting with executive orders. Not only
that, but Republican appointees in various agencies start to be on the
lookout for race- and gender-conscious programs, which they will no longer
see as mere annoyances or policies they disagree with but as part of a larger
structure that in the aggregate has contributed to the destruction of what
they hold dear. While judges are in theory apolitical, no reasonable person
doubts that they are influenced by the same intellectual trends as the rest of
us, which means that conservative jurists will likewise take a harder line
toward policies that many of them already oppose.
The backlash will be limited for the same reason that the creation of
woke policies drew so little attention in the first place. Concepts like
whether anti-discrimination laws authorize class action lawsuits, who is
entitled to attorney’s fees, the existence of punitive damages, and whether
corporations must engage in extensive record keeping have never inspired
much passion among the general public or even drawn its attention. This
demonstrates that there is not always a strong correlation between how
much energy surrounds a public policy debate and how important it ends up
being. Just as how civil rights law, in terms of reach and scope, expanded in
executive agencies and the courts without much public pressure, it can
contract in the same way. Of course, the analogy is not perfect. When civil
rights law expanded, it did so with the support of a well-organized lobby, a
bipartisan consensus in Washington, and the sympathy of the media. This
may make rolling it back more difficult, but in a world where conservatives
recognize the importance of the issues involved, they will form their own
lobbies that seek to influence the government and help level the playing
field. Greater polarization in the media and the general public relative to
decades past ensures that the backlash to any changes to civil rights law is
muted.
Changes made through the courts will be permanent, for all practical
purposes, while those that stem from executive orders or agency decisions
will always be under threat as soon as a Democrat comes into office. Some
of them certainly will be overturned, which means that in civil rights law,
like much else, policy shifts in predictable ways depending on who is in
power. At the same time, raising the profile of racial debates in which
Republicans have an advantage will result in Democratic presidents
thinking twice about taking bold action in the face of hostile public opinion.
Courts find it easier to overturn new actions than to invalidate established
programs and procedures, and the public is more likely to draw its attention
to departures from current policies than to continuations of them. This
means that supporters and opponents of Title IX as social engineering,
affirmative action, and the disparate impact standard face special obstacles
when they try to change the status quo. Conservatives at least have public
opinion on their side, and—given the clear legislative history of the Civil
Rights Act and the absurd degree of executive branch overreach on issues
such as Title IX—they also have the correct legal arguments and, more
importantly, a majority of the Supreme Court.
As they focus on the excesses of civil rights law, conservatives not only
scale it back when needed, but they will lean in to fight explicit
discrimination against whites, men, Asians, and whoever else may find
themselves on the wrong side of government preferences. They begin to sue
to stop explicit and thinly veiled discrimination against what are now
referred to as “unprotected groups.” The Supreme Court has for decades
explicitly rejected the idea that anti-white discrimination is more legally
acceptable than anti-minority discrimination. It starts paying attention to
whether lower courts have actually followed this principle, and more
lawyers and plaintiffs are willing to file lawsuits to give it practical effect.
Not only is this the legally correct position, but it prevents an outcome in
which, having rolled back affirmative action and disparate impact,
Republicans find that institutions nevertheless continue to operate as before.
The law can change, and the threat of costly lawsuits may still come only
from one side. If anti-discrimination laws are not going to be repealed, then
a world where everyone is protected is necessary to prevent institutions
from becoming woke to protect themselves.
Getting conservatives to focus on civil rights law also has an effect at
the state level, which forms another source of pressure pushing back on
woke institutions. Republicans outside of Washington begin to notice more
local instances of racial preferences in contracting, college admissions, and
other areas of government work. They begin rolling back such policies.
Leverage is used not only to stop woke policies but to mandate race- and
color-blindness as a precondition for having government business.
While running for president in 2016, Jeb Bush bragged to Republicans
that he ended affirmative action by executive order in Florida.10 This had
little effect on primary voters, who had forgotten about what used to be a
hot-button issue in the decade and a half since he accomplished this policy
objective. Now, with the conservative movement focusing on civil rights
law as the ultimate source of wokeness, ambitious politicians compete to
get ahead on relevant issues in order to portray themselves as true
champions of the anti-woke cause. Eventually, it becomes as unthinkable
for a red state to support race or sex preferences through taxpayer money as
it would be to fund abortion.
The movement does not simply depend on politicians taking certain
actions because it is the right thing to do. Conservatives form activist
organizations focused on civil rights law that are analogous to the National
Rifle Association, the National Right to Life Committee, and Club for
Growth. Such lobbying groups ensure uniformity within the party, even in
cases where taking the conservative position might potentially cost a
politician support with the wider public. Elected officials are rated and
judged according to how strongly they stand for an anti-woke agenda, and
positions advocated for by the anti-woke lobby become standard for
Republican politicians. Once in office, they work to satisfy this lobby like
any other, seeking policy victories they can promote and appointing their
people to government positions. Of course, the anti-woke lobby will not be
called the anti-woke lobby any more than the pro-woke lobby clearly
articulates its implicit vision. Rather, groups that oppose affirmative action,
disparate impact, and other harmful policies will in all earnestness continue
to call themselves things like the Center for Individual Rights and the
Center for Equal Opportunity, and for good reason.
After only one Republican administration, with the help of the Supreme
Court, most of the high-level policy work against wokeness has already
been done. Affirmative action executive orders are modified to have an
effect opposite to the one they had previously, the federal government no
longer adopts a disparate impact standard, the concept of a hostile work
environment is all but defined out of existence, and bureaucrats begin to
seek out and fight explicit anti-white and anti-male discrimination in
accordance with a correct interpretation of the law. The Supreme Court,
whose current makeup represents decades of conservative electoral
victories, has ruled the right way on these issues, creating synergy between
the efforts of the executive and judicial branches. A new status quo has been
created, and conservatives have set up the activist groups and lobbying
organizations necessary to keep up the pressure and ensure no backsliding.
Government policy conscious of race and sex is not yet completely
eliminated. That may or may not come with time. Yet one focused
Republican administration and a united conservative movement have used
their power to significantly reduce the level of government social
engineering. The effects on the wider culture are not felt right away. In fact,
things may temporarily go in the opposite direction, as the attack on civil
rights law mobilizes the identity left and its media supporters to pressure
institutions to swear fealty to the old order.
Yet this doesn’t last long. Within a decade of the start of the war on
wokeness, it begins to decline as a cultural force. As it turns out, moral
panics only become a permanent part of life when they are backed up by
state power and lead to the creation of new laws and bureaucracies.
Corporations realize that although they get some temporary good press
when they announce that they are sticking with their affirmative action
programs, doing so puts them in jeopardy of facing lawsuits from groups
discriminated against—while doing little to protect them, given that
lawsuits based on disparate impact or creating a hostile work environment
are becoming less common and lucrative.
The human resources industry, originally expanded to manage personnel
under a regulatory system with vague mandates surrounding race and sex,
begins to shrink. Likewise, with fewer regulatory requirements from OCR
and more pressure coming from conservative state legislators, universities
scale back their DEI bureaucracies. There is, of course, inertia, and HR does
more than enforce civil rights law, so the effects of all this will not be
immediate. In times of cost-cutting in state budgets and corporate austerity,
however, woke commissars start to look much less necessary than they used
to. The same is true within government entities, including primary and
secondary schools. Since going back to the original meaning of the Civil
Rights Act also means more legal skepticism toward the permissibility of
intentional discrimination against whites and males, a few high-profile legal
cases make affirmative action programs look riskier than before.
Government scaling back the vague standards of affirmative action and
disparate impact as it goes after intentional discrimination consistently
reduces the need for ideologically driven HR departments and DEI staff.
After the first ten years or so, we start to see downstream cultural effects
that people no longer connect to the original policy discussions surrounding
civil rights law. Hiring standards start to change. There begins to be a turn
toward the greater use of written tests as the doctrine of disparate impact is
weakened or abolished. Corporations and institutions that embrace
standardized tests in general do better than those that don’t. Selection
occurs both within and across firms; companies notice that departments that
rely on more objective criteria are more productive, and businesses that
reject testing completely lose out to those that do not. Slowly but surely,
each firm, industry, and profession moves toward more efficient hiring and
promotion standards.
Economic growth begins to pick up as more competent individuals are
put in the most lucrative and prestigious jobs and there is better matching
between individual skill sets and occupational attainment. GDP growth,
which had hovered around 2 to 3 percent a year for decades, begins to tick
up by a point or two, an effect that compounds and makes Americans much
wealthier in the long run. Given the complexity inherent in trying to
understand real-world data, analysts are unable to pinpoint exactly why, but
build various theories related to directions in globalization and wise
management of the economy by the Federal Reserve. Rolling back anti-
discrimination law having made practically every profession and industry
slightly more competent and efficient will not be considered, because the
proposition is difficult to test and goes against ideological commitments
that analysts still hold on to. Those who fought to change anti-
discrimination laws do not receive credit for any of this; given the
ideological makeup of academia, history may in fact remember them as
having ushered in a new era of intolerance when faced with social progress.
Outside of the increasingly intolerant academy, however, a few
moderate and conservative writers present evidence that the recent move
toward meritocracy has strengthened the economy. Not that anyone much
cares what professors think anyway; with incomes rising, fewer young
people go to college and fewer intelligent adults seek to become academics,
which, along with a cultural shift to the right, contributes to a decline in the
prestige of the profession. Business leaders, who had gotten used to one
status quo and learned to live with anti-discrimination law as it used to
exist, now adapt to a new reality and find it much more profitable. They
again become ardent defenders of the status quo, this time on the side of
justice, merit, and truth.
At established institutions and businesses, people begin to laugh,
socialize, speak, and date in greater freedom. Corporate cultures begin to
diverge. Of course, feelings are hurt along the way. Many individuals select
out of environments that accept crude jokes or aggressive flirting, while
others are excited by the possibility of being in a work environment in
which they can meet new and interesting people who can eventually
become close friends and maybe even partners and spouses. No one can
predict what the end result of this sorting will be, but a free market in labor,
like a free market in anything else, reveals itself to be the only realistic way
to aggregate preferences. As individuals can pick environments that suit
themselves during work hours, just as they are already allowed to do in
their personal lives, rates of depression and anxiety decline. Fewer people
are going to psychiatrists and taking mind-altering medications, facts that in
some corners of the press are discussed in the context of a rise in “untreated
mental health issues.” Eventually people will watch, with curiosity, TV
shows and movies from the 1990s and 2000s about the soul-crushing
dreariness and boredom of corporate life after it had been sanitized by HR,
all the while wondering how and why Americans once made work so
miserable. Workers actually liking their jobs makes them more productive,
which is yet another driver of GDP growth.
After some years, the changes we first started to see in limited form
accelerate and take off. If the first decade of the war on wokeness involved
societal changes that at least a few observers could trace to developments in
the law, the second decade moves us toward a complete forgetting of the
connection. The chain of causation is no less real, but it becomes harder to
prove. The acceleration comes in part due to economic developments that
include the rise of new firms and industries. Established institutions can
only change so much. HR departments and diversity bureaucrats are not all
immediately fired after they are no longer needed, and executives and
managers retain old habits and promote old norms regarding personnel
management. The true change comes when enough time has passed that
more of the largest and most powerful firms in the economy are those that
did not develop their procedures and internal cultures while under the boot
of an expansive and arbitrary system of civil rights law. These upstarts not
only outcompete established businesses by relying more on meritocratic
procedures and systems and making work life more tolerable, but force old
companies to either adapt to stay competitive or, if they cannot, get left
behind.
New businesses and social arrangements that seem unusual but meet
human needs begin to emerge. All throughout history, religions, families,
and other private institutions have created norms, practices, and institutions
that facilitate young people meeting so that they can eventually get married
and form families. Under civil rights law, women started to enter a
workplace that became increasingly sanitized to respond to the wishes of
the most sensitive and brittle among them. Careers became more important
relative to other areas of life at the same time it was made illegal to mix
work with love or sexual desire. Unsurprisingly, fewer and fewer people
ended up getting married or having children.
In the post-woke world, some corporations start encouraging dating and
forming close personal bonds among their employees. This can take many
forms, from Christian matchmaking to promoting a party-like atmosphere.
These pro-relationship corporations will come in conservative and liberal
forms. Other firms explicitly market themselves as providing a more
“professional” or “classic” work experience. They may draw people who
are already happily married, those currently not looking for a relationship,
and those who simply dislike mixing work and love. No law will prevent
companies from adopting old EEOC regulations from previous decades as
their model of personnel management. We will see a period of wild
experimentation, with some forms of corporate organization drawing a great
deal of media coverage. People will criticize many of these experiments,
and they will become the subject of public outrage. After civil rights law
has been defanged, however, government no longer has the ability to easily
shut such efforts down. Eventually public anger subsides, and the idea of
the media attacking a firm because it dislikes its internal culture will seem
as intolerant as attacking a religious community for its doctrines, or
homosexuals for what they do together as consenting adults.
Politics starts to dominate less of our public discourse. Now that the law
no longer forces corporations to take a side on hot-button issues like racial
preferences and what defines a “woman,” more and more firms opt for
political neutrality. Before civil rights law was rolled back, left-wing
institutions that celebrated racial diversity and LGBT identity were allowed,
but conservative corporations were all but illegal. Now, there are still more
liberal firms than conservative ones due to factors such as the political
leanings of young white-collar employees. Nonetheless, some businesses
become aligned with the right on culture war issues, and large institutions
are no longer seen as hyperpoliticized and monolithically liberal, which
takes some of the anger out of our public life.
Rates of mental illness begin to decline even further. Young people no
longer grow up in a world in which they are told that they are fragile, that
things have never been more unjust, and that being a woman or non-white
is a major burden that makes an individual subject to an endless stream of
belittling insults and large and small acts of discrimination. The culture
undergoes a subtle shift, as individuals focus more on the things they can
control and less on those they can’t. Tried-and-true paths to meaning—
family, personal accomplishments, religion, community—play a larger role
in people’s lives, and politics and government-certified minority status
matter less. As the premium on being a “victim” decreases, we see a large
drop-off in the number of teenagers and young adults identifying as sexual
minorities, which had become a way to gain status in a more confused
previous era.
Moral panics still exist. But with weaker civil rights laws in place, they
do not overwhelm and destroy institutions and have little lasting effect on
how society functions. Before, an unarmed black man would be killed by
police, or a prominent woman would talk about being sexually harassed,
and human resources departments in practically every major institution
would try to get on the right side of the issue. This was due to the political
leanings of HR professionals and the threat of lawsuits and government
intervention aimed at those showing themselves insufficiently sensitive to
which way the political winds were blowing. This effect remains; even in a
world without civil rights laws, companies would still try to avoid bad
press. But less is expected from major corporations, since they are no
longer seen as allies for one side in the culture war, and when they do
promise to take a more activist role in the midst of a moral panic, they
rarely follow up or make lasting changes.
Few people think too deeply about the connection between law and
popular culture—music, art, and TV shows. Yet even in the freest societies,
law shapes culture, which means that it cannot help but drive popular
entertainment. In the late 2010s and early 2020s, there was a realization that
popular culture had become decadent, as Hollywood came to produce less
compelling original material and rely more on remakes of classic works.11
Few at the time realized that this was because demands for artificial kinds
of gender and racial equality in cultural products had made original and
compelling art much more difficult to create. This is why many of the most
critically acclaimed TV shows of recent years have been set in either the
distant past, fantasy universes, or the criminal underworld, where there is
less pressure for politically correct stories that obviate natural differences
between men and women and insert unrealistic levels of ethnic diversity
that distract from the ability to find inspiration in a work. When the
excesses of civil rights law are rolled back, Americans return to being
comfortable with human nature and are ready to appreciate more interesting
and novel art.
The downstream effects of the American move back toward freedom
and merit are felt abroad. Given the US role in the world, other countries
often follow its lead in cultural matters. Americans winning their own battle
against wokeness at home weakens it everywhere else. The amount of
freedom in the world increases, and countries on every continent see fewer
moral panics and faster economic growth. As the US becomes less woke at
home, cultural imperialism plays less of a role in its foreign policy. While at
one time elites in Washington demanded that other nations adhere to ideas
about race and sexuality that were in many cases new and still widely
controversial even at home, now they deal with foreign nations in a more
respectful manner and look for ways to cooperate based on mutual self-
interest. Alongside the booming global economy that has resulted from the
return of merit hiring and creative destruction across and within firms, we
move toward world peace and the preservation of true cultural diversity.
Getting the state out of the business of social engineering does not take
us back to the 1950s. One can’t unring a bell, and there are many aspects of
life at that time that we should not want to return to. But the idea that we
would go back to Jim Crow–type laws in the South, or even that public
opinion would tolerate any jurisdiction of notable size doing so, is absurd,
even if we might expect those who support the legal status quo to warn us
about a slippery slope leading to that ultimate end.
All of this probably won’t happen. But some of it might. And although
we should have little confidence that we can accurately predict what kind of
world will result once we eliminate certain aspects of anti-discrimination
law and make others more consistent, one of the aims of this book is to
convince the reader that there would be downstream influences on
practically all areas of life. In the 1960s, the federal government got into the
business of social engineering. It is impossible to know exactly which ideas
associated with wokeness required civil rights law to triumph and which
ones would have gained prominence anyway. It is also impossible to
quantify the harm done to economic growth and human flourishing caused
by the path the federal government took.
While the above portrait presented an optimistic—almost certainly too
optimistic—view of what the world would look like with weaker and more
consistent civil rights laws, one can also conjure up nightmare scenarios.
Nonetheless, the case for being more optimistic about the result relies on a
few basic principles that most reasonable people share: that freedom,
including freedom of speech, is good for individuals and institutions; that
arbitrary state power is bad; that businesses know more than the
government about how to create a more productive and harmonious
workforce; and that the state should not be in the business of social
engineering, including the regulation of humor and dating.
We have never had an honest discussion about how the modern idea of
civil rights—based on usually vague affirmative action standards, disparate
impact, the elimination of sex stereotypes, and anti-harassment law—
clashes with basically all other rights Americans hold dear and with our
assumptions about what makes for a free and prosperous society. Rather,
supporters of the current system pretend that the conflict does not exist.
Bringing attention to what civil rights law actually does beyond supposedly
prohibiting race and sex discrimination is the first step toward helping
people understand what freedoms have been lost, and what the world might
be like if we could regain them.
In the relationship between culture and law, the arrow of causation does
not flow in one direction. It is impossible to imagine either a society in
which the dominant ideas of a nation do not affect its laws and regulations,
or one in which government power does not influence how people think and
act and what they believe. To even ask which causal arrow has greater
weight is likely asking too much of social scientists. At the same time,
historical research, by looking at the order of events, can make the case that
many of the ideas fundamental to wokeness were part of law before they
were part of American culture. In other words, there is a striking
resemblance between assumptions of civil rights laws that go back to the
1970s and cultural ideas and forces that have come to ascendance much
more recently.
One does not have to squint to see the connections between the
disparate impact legal standard and theories of “structural discrimination”;
affirmative action as required by government and race-consciousness in the
private and public sectors; anti-harassment laws and sterilized HR-
compliant corporate environments; best practices standards in civil rights
law and diversity trainings; Title IX regulations and harassment policies on
college campuses; and how the government classifies people according to
race and how the wider culture divides them.
No one alive in the 1960s could have imagined where government
getting into the business of social engineering would eventually take us.
After all, those paying attention at the time were thinking in terms of a
static economic system in which the spoils of a heavily regulated but
nonetheless successful postwar American capitalism would be divided more
equally across groups. In contrast, allowing for more freedom,
experimentation, and creative destruction almost by definition leads to more
uncertain outcomes. Those who want to move us away from the current
civil rights regime will, if they succeed, put us down a path that is even
more unpredictable than that taken in the 1960s. Their efforts will likely
have impacts that are only slightly noticeable in the short run, which means
that it will be easy to believe nothing very important has happened even
after political victories. A historical perspective can help guard against
disillusionment.
The story of how America became woke reveals that the most important
legal and regulatory decisions often get little to no attention. The Civil
Rights Act was debated out in the open by elected representatives, but the
revolutionary innovations of the decades after its signing were mostly
ignored by the general public. Attempts to undo them would probably get
more attention; the left has shown great ability to mobilize on issues related
to identity. But in this case, a mobilized right and public opinion can serve
to check its excesses.
Federal contracting regulations and which standards to use to prove
discrimination are simply not very compelling topics to most casual
followers of the news. Even those inclined to liberally throw around the
epithets “racist” and “sexist” against their political opponents always have
more tempting targets than those who speak in the boring language of court
decisions and the Code of Federal Regulations.
Among its many other goals, this book argues against our tendency to
mistake salience for importance. Wokeness inspires passions on both sides.
While debates over hot-button issues are often dismissed as insignificant by
those who have an aesthetic or ideological commitment to the idea that
politics should mostly be about economic issues, Americans, just like other
people, have made clear that they care deeply about what kind of culture
they live in. Yet for half a century now the culture war has been an
asymmetric fight, with one side able to inspire a critical mass of bureaucrats
and activists who do their work far from public attention, and the other
doing little more than encouraging and reflecting mass discontent without
much impact. The anti-woke movement may never be able to inspire as
many bureaucrats and lawyers as its opponents, but through the judicious
use of power it can help eventually reverse much of the damage that has
been done to our economy, politics, and ability to organize and live our
lives free from government control. The effort to roll back civil rights law
will not be the final battle in the war on wokeness but the beginning,
allowing those who want to build a society based on the ideals of freedom
and progress a fair chance in the struggle.
Acknowledgments
Given that this book is the culmination of over a decade of study and
thought on these topics, there are too many people who have influenced my
thinking and helped me on this journey to list here. I will mostly focus on
thanking those who helped most in the years immediately before
publication, as the chain of causation becomes less certain the further one
goes back. The idea for the book originally came from a reading group on
woke institutions that included Patrick Brown, Connor Harris, Zach
Goldberg, Charles Fain Lehman, Megan McArdle, Gabriel Rossman, and
Aaron Sibarium. The readings we discussed originally motivated me to
write the article “Woke Institutions Is Just Civil Rights Law,” which
contained incipient versions of many of the arguments made here. Seeing
the reaction to it convinced me that there was widespread interest in hearing
more about how we got here and how opponents of wokeness can do more
than just complain about what they find distasteful.
I’ve also had important discussions on the topics covered in this work
with Bryan Caplan, Gail Heriot, Eric Kaufmann, Michael Lachanski, Dan
Morenoff, Steven Pinker, Philippe Lemoine, Vivek Ramaswamy, Sarah
Rogers, Alex Nowrasteh, and Chris Rufo. Jonah Davids has done all that I
can ask from a research assistant. Tyler Cowen has been perhaps the most
influential public supporter of my work, and I will always be grateful for
that. The Alan Rupe Foundation provided a grant to help write this book.
Michael Howard helped track down data on the rise of human resources.
Finally, social media and comments on my Substack have, for better or
worse, greatly influenced my thinking on political issues. I thank all the
anons and real names out there who have been part of the never-ending
discussion that this book represents a continuation of. My sincerest hope is
that it will help move us beyond that discussion and ultimately reshape laws
and institutions, away from adherence to ideas and practices that are
ultimately poisonous for humanity.
Notes
Introduction
11. Hayek, Friedrich von. 1944. The Road to Serfdom. George Routledge & Sons: p. v.
Chapter 1. How to Understand Wokeness
12. “Transcript: Ezra Klein Interviews Ramesh Ponnuru.” Mar 2, 2021. The New York
Times. https://www.nytimes.com/2021/03/02/podcasts/ezra-klein-podcast-ramesh-
ponnuru-transcript.html.
13. Caldwell, Christopher. 2020. The Age of Entitlement: America Since the Sixties.
Simon & Schuster: ch. 8.
14. Rufo, Christopher F. Oct 14, 2021. “Walmart vs. Whiteness.” City Journal.
https://www.city-journal.org/walmart-critical-race-theory-training-program; Xiu,
Meimei. Jun 29, 2022. “Harvard Prof. John Comaroff Faces New Allegations of
Misconduct in Amended Suit.” The Harvard Crimson.
https://www.thecrimson.com/article/2022/6/29/comaroff-amended-complaint/.
Notably, a premise of this lawsuit and related coverage was revealed to be false and
fabricated, as detailed in Sibarium, Aaron. Aug 19, 2022. “This Harvard Professor
Was Found Guilty in the Press. Court Records Tell a Different Story.” The Washington
Free Beacon. https://freebeacon.com/campus/this-harvard-professor-was-found-
guilty-in-the-press-court-records-tell-a-different-story/.
15. D’Agostino, Tom. May 5, 2022. “Linkedin Is on the Hook for $1.8 Million for
Alleged Gender Bias.” HR Morning. https://www.hrmorning.com/news/linkedin-is-
on-the-hook-for-1-8-million-for-alleged-gender-bias/; “B&H Foto Resolves
Allegations of Discrimination, Bias, and Harassment with OFCCP.” Oct 13, 2017.
Carla Irwin & Associates. https://carlairwininc.com/blog/bh-foto-resolves-allegations-
of-discrimination-bias-and-harassment-with-ofccp/.
16. Eilperin, Juliet. Dec 30, 2014. “Harvard Settles Title IX Case with Administration,
Agrees to Revise Sexual Assault Policies.” The Washington Post.
https://www.washingtonpost.com/news/post-politics/wp/2014/12/30/harvard-settles-
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Power of the Powerless: Citizens Against the State in Central-Eastern Europe. M. E.
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(S.D.N.Y. 2013).- Heriot, Gail L. 2020. “Title VII Disparate Impact Liability Makes Almost Everything
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in Education. Brookings Institution Press: pp. 40–41.- For example, the NBA has over one hundred times the revenue of the WNBA, with
the latter having never even generated a profit. The very existence of women’s
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Department of Education. https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-
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coordinators.pdf.- Ibid.
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54, 90 (2013) (codified at 20 USC § 1092(f)(8)).- Gersen and Suk, “The Sex Bureaucracy,” p. 912.
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144. For the growth in private enforcement regimes in the American system and the history
of civil rights law in that context, see Farhang, Sean. 2010. The Litigation State:
Public Regulation and Private Lawsuits in the U.S. Princeton University Press.
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Potential Drivers of Attitudes Toward Identity Politics and Free Expression.” San
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19–21.- Farhang, The Litigation State, pp. 147–49.
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Arbitration, Employment Disputes, Punitive Damages, and the Implications of the
Civil Rights Act of 1991.” Hofstra Law Review 23(4): pp. 913–73, p. 917, fn 16; The
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1991 creates punitive damages. For discussion and references to the law, see Kramer
v. Banc of America Securities, LLC, 355 F.3d 961 (7th Cir., 2004).- Belz, Equality Transformed, pp. 44–45.
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settlement-cash-1472421204.- See Hersch, Joni, and Jennifer Bennett Shinall. 2015. “Fifty Years Later: The Legacy
of the Civil Rights Act of 1964.” Journal of Policy Analysis and Management 34(2):
424–56, pp. 441–46.- “Charge Statistics (Charges filed with EEOC) FY 1997 Through FY 2021.” Accessed
Aug 29, 2022. US Equal Employment Opportunity Commission.
https://www.eeoc.gov/statistics/charge-statistics-charges-filed-eeoc-fy-1997-through-
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- In fig. 3.3, civil case totals are from the Statistical Tables of the Federal Judiciary for
1976–2020. For 1965–1975, see Shughart II, William F., and Gokhan R. Karahan.- “Study of the Determinants of Case Growth in US Federal District Courts, Final
Report.” https://www.ojp.gov/pdffiles1/nij/grants/204010.pdf. Civil rights case totals
are from the Statistical Tables of the Federal Judiciary for 1976–2020. For the period
1970–1975, they are found at the website of the Federal Judicial Center. For the
period 1967–1969, they are estimated from the same source based on how many cases
are closed beginning in 1970. The same methodology is used for calculating
employment cases and ADA cases in fig. 3.4.- Heriot, “The Roots of Wokeness,” pp. 36–37.
- The possibility that this could happen was brought up by Gail Heriot in an interview
for the Institutionalized podcast that can be found at
https://podbay.fm/p/institutionalized/e/1649839500.- Farhang, The Litigation State, pp. 173–99.
- See Miller, Benjamin P. n.d. “Title VII Affirmative Defense in the Real World: Recent
Application of Ellerth/Faragher and What They Require”: p. 7.
https://web.archive.org/web/20160327223342id_/http://www.miller-
attorney.com:80/articles/MillerTitleVII.pdf.- Ibid.
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Guesses?: Assessing the Efficacy of Corporate Affirmative Action and Diversity
Policies.” American Sociological Review 71(4): 589–617, p. 90.- Heriot, “The Roots of Wokeness,” pp. 42–44.
- Ibid., p. 42, fn 117.
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what-is-it-good-for/.- Ibid.
- Dobbin, Inventing Equal Opportunity, p. 87.
- Ibid., pp. 95, 115, 122.
- Ibid., pp. 96, 112–24.
- I first heard Gabriel Rossman use the term “force multiplier” in this context.
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214. Ibid., pp. 44–45.
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379. Skrentny, “Republican Efforts to End Affirmative Action,” p. 148.
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387. Heriot, “Title VII Disparate Impact Liability,” pp. 42–43.
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391. Heriot, “Title VII Disparate Impact Liability,” pp. 99–103.
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413. Temple-West, Patrick, and Joshua Franklin. Aug 7, 2022. “US Banks Tout Fossil Fuel
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414. I’d like to thank Jonathan Mitchell for bringing the idea of using state contracting to
go after wokeness to my attention.
415. Claburn, Thomas. May 9, 2019. “Oracle’s Legal Woes Deepen: Big Red Sued (Again)
for Age and Medical ‘Discrimination.’” The Register.
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416. Hochman, Nate. Mar 7, 2022. “Another Republican Drops Support for the Pro-Trans
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417. “Booker Applauds Bipartisan Vote in House to Pass CROWN Act.” Mar 18, 2022.
https://www.booker.senate.gov/news/press/booker-applauds-bipartisan-vote-in-house-
to-pass-crown-act. For the text of the bill: https://www.congress.gov/bill/117th-
congress/house-bill/2116/text.
418. Rovner, Julie. Dec 14, 2009. “Abortion Funding Ban Has Evolved Over the Years.”
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Conclusion. Unleashing American Freedom and Creativity
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423. I thank a commentator who goes by the name “Mark” on my Substack for making this
point. https://twitter.com/RichardHanania/status/1507451105092939777?
s=20&t=aQp_vnl-CAyLY1zjEo6LKQ.
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Its Leaders Think So.” The New York Times.
https://www.nytimes.com/2021/02/09/world/europe/france-threat-american-
universities.html.- Poushter, Jacob, and Nicholas Kent. Jun 25, 2020. “The Global Divide on
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https://www.pewresearch.org/global/2020/06/25/global-divide-on-homosexuality-
persists/.- Neely, Tucker. Jan 7, 2016. “He Got His Way. Then He Got a Mess.” The Washington
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irrelevant-decline-ratings.html.
Index
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edition from which the index was created. If the application you are reading this on
supports this feature, the page references noted in this index should align. At this time,
however, not all digital devices support this functionality. Therefore, we encourage you to
please use your device’s search capabilities to locate a specific entry.
Page references in italics refer to figures and tables.
Abercrombie & Fitch, 72
ADA Amendments Act (2008), 77, 170, 172, 174
ADA Education and Reform Act (2017), 174
Adarand Constructors, Inc. v. Peña, 197
“administrative clone theory,” 86–87
Administrative Procedure Act (APA), 49, 51, 56, 187, 194
affective polarization, 143–149
affirmative action, ix, 6
authority to mandate by executive branch, 34–35, 162, 191, 195
for contractors, 33–39
diversity as justification for, 12–15
employer analysis process, 35–37
opposition to, 135–136, 145, 157–158, 188, 250n53
rise in bureaucratization to address, 64–65
as a source of inter-group tension, 148
age discrimination, 61, 62, 112
Age of Entitlement, The (Caldwell), 4
Ahmari, Sohrab, 154
Akaka, Daniel, 102
Alexander, Clifford, 30
Alexander v. Sandoval, 44, 195
Alibaba, 142
Alito, Samuel, 197
Americans with Disabilities Act (ADA), 61–63, 71, 72, 76–78, 152, 167, 169–170,
172, 210, 243n12
Andreessen, Marc, 3
anti-discrimination laws, 25, 27, 42, 78, 97, 114–115, 117–118, 141, 202–203
anti-miscegenation laws, 90
Anton, Michael, 3
APA. see Administrative Procedure Act (APA)
Arabs, 18, 91, 104, 117
Are You Smart Enough to Work at Google? 129
Asian American Pacific Islander (AAPI) category, 5, 18, 92–93, 94–95, 97, 101–102,
106–108, 107, 117
Asian Americans
unofficial admissions quotas, 58, 92, 241n74
use of term, 106–108, 107
Associated Press, 157
Association for Intercollegiate Athletics for Women (AIAW), 51
Association of American Universities, 86
athletics programs, 49–52, 110–111, 165–166
Azerrad, David, 238n21
Baathism, 217
Ballotpedia, 145
Bank of America, 72, 73
Barnes v. Costle, 46
Barrett, Amy Coney, 198
Basecamp, 25
Belz, Herman, 40
“best practices” doctrine, 65–66, 79–82
Biden, Joe, 157, 211
Biden administration, 56, 117, 188, 194–195
Bipartisan Cartel era, 153, 158–163, 174
Black Lives Matter movement, 21
Blackmun, Harry, 43
Blue Rose Research, 157
Blumrosen, Alfred, 43
Bostock v. Clayton County, 29, 115, 175
Breitbart, Andrew, 21
Brock, Bill, 164
Brown University, 65
Buchanan, Pat, 2, 9
bureaucratization
colleges and universities, 64–65, 86–87
human resources (HR) departments, 65–68, 66–67, 85–87
as a result of lawsuit settlements, 73–74, 82–83
schools, 86
Burlington Industries, Inc. v. Ellerth, 47
Burnham, James, 67
Burwell v. Hobby Lobby Stores, 141
Bush, George H. W., 152, 167–168, 182
Bush, George W., 77, 152, 158, 169–170, 171, 174
Bush, Jeb, 223–224
Bush (George W.) administration, 53, 151, 196
but-for-causation requirement, 200
Cabinet Committee on Opportunities for Spanish-Speaking People (CCOSSP), 18,
98–99
Caldwell, Christopher, 4, 186–187
“cancel culture,” 180
capitalism, 120, 139–141, 150
Carlson, Tucker, 178
Carter, Jimmy, 2, 126
Carter administration, 127
Case, Clifford P., 41
Castillo, Martin, 98
CCOSSP. see Cabinet Committee on Opportunities for Spanish-Speaking People
(CCOSSP)
Census Bureau, 90, 91, 97, 99, 147
Center for Equal Opportunity, 224
Center for Individual Rights, vii, 200, 224
Chait, Jonathan, 146
Christianization, 22
Christiansburg Garment Co. v. EEOC, 71
City of Richmond v. J. A. Croson Co., 196
Civil Rights Act (1866), 62
Civil Rights Act (1964), 4, 6, 7, 9, 11–12, 24
criticisms of, 187
disparate impact standard, 39–45
federal interpretations of, 30, 144–145
Goldwater’s speech opposing, 156
historical context, 32–33
modifications to, 173
original meaning of, 204
sex discrimination amendment to, 28
Title VII provisions, 30, 39–49, 72–78, 80–81, 84, 86, 112, 189, 192–194
Title VI provisions, 44, 49, 57, 69, 189, 192
Civil Rights Act (1991), 6, 7, 23, 30, 152, 167–168, 172, 174
ban on race-norming, 127–128
codification of punitive damage awards, 65, 72–78, 114, 167–168, 243n12
disparate impact standard, 192, 195–196
Civil Rights Attorney’s Fees Award Act (1976), 71, 160, 172, 174
Civil Rights Era, The (Graham), 14
civil rights law
absurdity of, 138
as a cause of polarization, 145–149
centrist approach to, 12
development of, 11–12
double standards as a consequence of, 63
effects of on American society, 121–122, 149–150
enforcement of, 10–11
federal interpretations of, 30
and homogenization of corporate practices, 83–85
ideas of womanhood under, 113–114
as legitimizing and delegitimizing identities, 136–137
levels of, 31
as a self-financing system, 70–78
as the skeleton key of the left, 59
as a tool of social engineering, 12
vagueness of, 68–70
as a “woke arms race,” 79–80
Civil Rights Restoration Act (1987), 165, 172, 174
Civil Service Commission (CSC), 123–127
Claremont Institute, 154
Claremont Review of Books (periodical), 3
Clark, Joseph P., 40–41
Clinton, Bill, 2
Clinton, Hillary, 3
Clinton administration, 52–53, 115, 196, 197
Club for Growth, 224
Coca-Cola, 25, 72, 74, 204
Code of Federal Regulations, 233
Cohen v. Brown University, 50–51, 198
Coinbase, 25
colleges and universities
athletics programs, 49–52, 110–111, 165–166
bureaucratization of, 64–65, 86, 113
diversity in, 13–14
diversity statements, 20, 59
and future job opportunities, 130
identity politics forced upon, 10
race as an admission factor, 12–14, 57–58
sexual violence guidelines, 52–56
Title IX, 6–7, 49–56, 87
wokeness phenomenon in, vii
Columbia University, 10, 64
Comcast Corp. v. National Association of African American–Owned Media, 199–200
communism, 10, 217
Community Relations Service, 125
Congress, role of in fighting wokeness, 206–208
Congressional Black Caucus, 16
Congressional Hispanic Caucus, 100
Congressional Research Service, 25, 207
Conservative Neglect era, 153, 170–178
Conservative Political Action Conference (CPAC), 1, 180
conservatives. see Republican party
Conservative Votes, Liberal Victories (Buchanan), 2
Constantine, 22
constitutional law, 29
contractors
affirmative action for, 33–39, 162
state control over, 209
Coolidge, Calvin, 75
corporations, civil rights law and, viii–ix. see also employers and employment;
workplace
Cotton, Tom, 2, 84
Council on American-Islamic Relations (CAIR), 91
Covid-19 pandemic, 18, 21, 59–60, 78, 92
Cowen, Tyler, 219
CRA. see Civil Rights Act (1964)
Creating a Respectful and Open World for Natural Hair (CROWN) Act (2022), 210–
211
creative destruction, 139–143
critical race theory, 188, 208, 213, 218
CSC. see Civil Service Commission (CSC)
culture
false dichotomy of politics vs., 21–23
law and popular, 230
static laws causing changes in, 23
Curtis, Charles, 116
Daily Caller (website), 16
Damore, James, 48–49
“David French-ism,” 154
DC Circuit Court of Appeals, 46
Democratic party
approaches to civil rights law, 151–152, 154, 177, 213–214
intellectuals in, 154, 172
and “Secret Congress” theory, 153
unity on civil rights issues, 166
voting behavior, 1–2, 171
Department of Education, 8, 53–54, 165, 178, 187, 192
Department of Health, Education, and Welfare, 10, 50, 64–65
Department of Housing and Urban Development, 125, 192
Department of Justice, 41, 58, 74, 163–164, 178, 206
Department of Labor, 8, 11, 30, 34, 37, 43
DeSantis, Ron, 208
DeVos, Betsy, 55
Diagnostic and Statistical Manual-II, 93
Di-az, Demetric, 73
Diaz, Owen, 73
disability law, 61–62, 169–170, 174–175, 209–210
discrimination
age, 61, 62, 112, 209–210
against Arabs and Muslims, 91
belief that disparities are equal to, 4–5, 63
Civil Rights Act banning of, 6–7
civil rights lawsuits, 72–78, 76–77
CSC vs. EEOC on, 126
disability, 61–62, 169–170, 174–175, 209–210
EEOC charges filed, 75–78, 76–77
employment, 125
housing, 61
mandatory but implicit, 59
race, 57–59, 62
religious, 95–96
reverse, 30, 37, 40–43, 81, 83, 202–206
sex, 15–16, 28–29, 46–49, 108–115, 137
statistical, 133
structural, 232
taste-based, 133, 139, 202
Title IX banning of, 6–7
disparate impact standard, 12, 33, 86
abolishing, 189, 191–196
aptitude tests, 40
belief that disparities equal discrimination, 4–5, 63
EEOC prosecutions, 60
four-fifths/80 percent rule, 45, 59
intelligence tests, 41–42
lack of investigations on behalf of white males, 205
Title VII provisions, 39–45, 189, 192–194
as a vague concept, 69
as violating the Equal Protection Clause, 184
diversity
anti-discrimination laws and, 25, 27
cultural, and workplace environment, 130–138
in higher education, 13–14
institutional, 142
racial classification as a sign of, 94–95
rise of idea of, 12–13
validity-diversity trade-off, 124, 127, 129
diversity, equity, and inclusion (DEI) industry, 6, 81–82
Diversity Myth, The (Sacks & Thiel), 9
diversity statements, 20, 59
division of labor, 87–89
Dobbin, Frank, 70
Dobbs v. Jackson Women’s Health Organization, 134
Dole, Bob, 25, 164, 169, 174, 207
Due Process Clause, 194
Edict of Milan, 22
Education Amendments Act (1972), 162
education polarization, 3–4, 152, 171–172, 177
EEOC. see Equal Employment Opportunity Commission (EEOC)
Eighth Circuit Court of Appeals, 47
Eisenhower administration, 97, 103
Eisenhower, Dwight, 96
Eisenstadt v. Baird, 134
elections
1964 presidential, 144
1994 presidential, 168
2016 presidential, 1, 3, 176
Eleventh Circuit Court of Appeals, 47
employers and employment. see also human resources (HR) bureaucracy; workplace
analysis process for affirmative action practices, 35–37
civil rights lawsuits, 72–78, 76–77
contractors and affirmative action, 33–39
disparate impact standard, 39–45
diversity industry and, 81–82
equal opportunity, 37, 146
harassment law, 45–49
hiring criteria, 128–130
homogenization of corporate practices, 83–85, 140
intelligence testing, 41–42, 85, 124–130
school quality and future job opportunities, 130
sex discrimination, 15–16, 28–29, 46–49, 108–115
Title VII provisions, 30, 39–43
women in the labor force, 114–115
environmental, social, and governance (ESG) investing, 203, 209
Environmental Protection Agency, 125, 162
Epstein, Richard, 202
Equal Employment Opportunity Act (1972), 30, 77, 162, 172, 174
Equal Employment Opportunity Commission (EEOC), 11, 28, 29, 40, 57, 205–206
Christiansburg Garment Co. v. EEOC, 71
discrimination charges filed with, 75–78, 76–77
disparate impact standard, 41–43, 60
four-fifths/80 percent rule, 45, 59
harassment definition, 48–49
hostility towards merit-based standards, 125–128
lack of investigations on behalf of white males, 205
race- and gender-counting requirements, 96–97
Rogers v. Equal Employment Opportunity Commission, 45, 48
Thomas as chairman of, 164
Equal Employment Opportunity Coordinating Council, 125–126
equality
of results vs. equal opportunity, 124–125
workplace, 114–115
Equality Act (2021), 174, 175
equal opportunity
American belief in, 38–39
employers positing themselves as, 37
vs. equality of results, 124–125, 146
executive orders on, 33–35, 146
Equal Opportunity Act (1995), 169
Equal Protection Clause, 57, 184, 193, 200
Equal Rights Amendment, 125, 177
Eskridge, William, Jr., 167
establishment Republicans, 154–158
ethnicity
government classification of, 94–95, 99–101
and minority recognition, 104–105
white ethnics, 103–104
executive orders
authority to mandate affirmative action, 34–35, 162, 191, 195
defined, 33
on equal opportunity, 33–35, 146
outlawing discrimination in contracting, 96
repealing or amending EO 11246, 164, 166, 169, 189, 191–192
Fair Housing Act (1968), 74, 196
Faragher v. City of Boca Raton, 47
Farhang, Sean, 208
Farron, Steven, 122
FBI, 95
Federal Service Entrance Examination, 126
feminist activists, 16, 28–29, 56, 94, 109, 113–114, 118
Fifth Amendment, 194
Fifth Circuit Court of Appeals, 45
First Amendment, 183, 199
First Circuit Court of Appeals, 50, 198
“Flight 93 Election, The” (Anton), 3
Floyd, George, 15
Forbes (periodical), 74
Ford administration, 86
Ford Foundation, 103
Foucault, Michel, 8
Foundation for Individual Rights and Expression (FIRE), 3
Fourteenth Amendment, 57, 184, 193, 194, 200
Fourth Circuit Court of Appeals, 110, 199
Fox News, 178, 180
France, resistance to wokeness in, 219–220
Frankfurt School, 9
Franks, Gary, 168
Frederick the Great, 88
freedom of association, 139, 141–143, 202
freedom of speech, 63, 183, 219
French, David, 154
Gallup, 157
game theory, 79
Garfield, James, 123
gender ideology, 16–17, 54, 93, 115
generational turnover, 27
Gersen, Jacob, 53, 54
G. G. v. Gloucester County School Board, 199
al-Gharbi, Musa, 81
Gingrich, Newt, 168
Ginsburg, Ruth Bader, 13, 198
Glazer, Nathan, 32
Goldberg, Irving L., 45
Goldberg, Zach, 19
Goldwater, Barry, 125, 156, 159
Google, 7, 48–49, 61, 95, 129
Gottfried, Paul, 9
government
absurd attempts at social engineerining by, 137–138
employee hiring criteria, 122–124, 125–128
eras of, 127
ethnicity classification by, 94–95, 99–101
race classification by, 90–91, 93–97, 101–105, 211
Republican control of, 151
state, role of in fighting wokeness, 208–209
strong vs. weak states, 70
wokeness as a policy of, 155–156
Government Accounting Office, 126
Graham, Hugh Davis, 14
Gramsci, Antonio, 11
grants for black farmers, 188
Gratz v. Bollinter, 13, 57, 169, 200
“Great Awokening,” 19–20
“great replacement theory,” 104–105
Great Society, 6, 19, 158–163
Greer, Tanner, 27
Griggs v. Duke Power Co., 41–42, 43–44, 193, 196
Griswold v. Connecticut, 134
Grove City College v. Bell, 165–166
Grutter v. Bollinger, 13, 57, 169, 196, 197, 200
Guiteau, Charles J., 123
Hammerman, Herbert, 97
Hanson, Robin, 153
happiness, 132
harassment
affirmative defense to, 79
EEOC definition, 48
EEOC prosecutions, 60
law, 45–49, 199
sexual, 46–47, 52–56, 69, 113–114, 117–118
as a vague concept, 69
Harvard Business Review (periodical), 142
Harvard University, 8, 58, 87, 92, 95
Havel, Vaclav, 16–17, 39
Hayek, Friedrich von, ix
Hayes, Rutherford B., 32
Heriot, Gail, 44–45, 204–205, 207
Hillsdale College, 56
Hispanics category, 98–102, 105–106, 106, 117
Hitler, Adolf, 122, 217
Hochman, Nate, 210
Hoover, Herbert, 116
“hostile work environment” doctrine, 6, 47–48
housing discrimination, 61
human resources (HR) bureaucracy
“best practices” doctrine, 65–66, 79–82
and bureaucratic bloat, 85–87
as an extension of the state, 23
and moral panics, 229–230
as a pillar of wokeness, 5
rise of, 6, 65–68, 66–67
Humphrey, Hubert, 30, 40
Hyde Amendment (1976), 212
IBM, 61
ideas
intellectuals and faith in the importance of, 8–9
marketplace of, viii, 7–18, 214
removing the influence of harmful, 10
identity
ethnic, 99–101
gender, 93, 115, 117
LGBT, 115–116, 117–118
racial, 90–91, 93–97, 101–105
state legitimization of, 23, 93–94, 136–137
ideology, vs. religion, 217–218
I Love Lucy (TV show), 90, 116
immigration, 104–105
individualism, 4
intellectuals
Democrat, 154, 172
economic debates, 120
faith in the importance of ideas, 8–9
and the marketplace of ideas, viii, 7–18
political rhetoric, 3
Republican, 154, 171–172
intelligence tests, 41–42, 85, 124–130
Inter-Agency Committee on Mexican-American Affairs (IMAA), 18, 98
Jackson, Andrew, 127
Jenson v. Eveleth Taconite Co., 47
Jewish Americans, 103–104, 117
Jim Crow, 144, 148, 156, 161, 202, 231
Johnson, Lyndon, 2, 6, 29, 32, 34, 98, 144, 148, 160
Johnson administration, 97, 144
Julian, 22
Kavanaugh, Brett, 197–198
Kemp, Jack, 169
Kendi, Ibram X., 17, 238n21
Kennedy, Anthony, 196, 197–198, 203
Kennedy, John F., 2, 34
Kennedy administration, 96, 97, 101
“Latinx,” 100
law. see civil rights law
Lawrence v. Texas, 134
lawsuits
“American Rule,” 71
attorney’s fees awards, 71
class action, 72, 74
punitive damages awards, 65, 72–78, 114, 167–168, 243n12
“leapfrogging,” 51
Leiter, Brian, 135
LGBT identity and rights, 115–116, 117–118, 175
liberals. see Democratic party
libertarianism, 3, 134, 154, 155–156, 179, 202–203
lies, 145–150
Lilly Ledbetter Fair Pay Act (2009), 172, 174
Lind, Michael, 9
Lindsay, James, 9
Lorance v. At&T Technologies, Inc., 167
Loving v. Virginia, 90, 134
Luévano v. Campbell, 127
Luther, Martin, 8
MacKinnon, Catharine, 46
Macron, Emmanuel, 219
managerial class, 31, 201
Managerial Revolution, The (Burnham), 67
Marcuse, Herbert, 8, 11
market economy, 139–141
marketplace of ideas, viii, 7–18, 214
Marx, Karl, 8
mask mandates, 59–60
“Mau-Mauing the Flak Catcher” (Wolfe), 14
McCain, John, 171
McGill, William J., 64–65
media bias, 159–161, 181
Meese, Ed, 164–165
Melnick, R. Shep, 50–51, 53, 172, 194
merit
concept of, 20
Pendleton Act, 123, 125, 127
vs. representation, 125, 126
war on, 122–130
Meritor Savings Bank v. Vinson, 47
Merit Systems Protection Board, 126
Mexican Americans, 97–98, 105–106
Microsoft, 25
minorities
“minority rights revolution,” 159
official classifications of, 116–118
recognition of, 104–105
sexual, 115–116
Mitchell, John, 34
Mora, G. Christina, 97–98
moral panics, 229–230
Morgan Stanley, 72
Motorola, 40
Musk, Elon, 3, 136
Muslims, 18, 91, 117, 217
NAACP, 42
NASA, 20
National Center for Education Statistics, 95
National Council of La Raza, 99
nationalism, 218
National Labor Relations Board, 49
National Organization for Women, 109
National Review (periodical), 159, 210
National Rifle Association, 224
National Right to Life Committee, 224
National Science Foundation, 20
Native Americans, 57, 95–97, 102–103
Native Hawaiians, 95, 101, 102–103
Nazi Party, 122, 217
neoconservatives, 19
nepotism, 122–123
new right, 154–158
New Yorker (periodical), 88
New York Times (periodical), 20, 29, 84, 92, 99, 142
Ninth Circuit Court of Appeals, 71, 111
Nixon, Richard, 6, 11, 34, 37, 49, 98, 148, 160, 161–162, 168, 178, 191
Nixon administration, 86, 104, 127, 151, 159, 162
nondiscrimination, 39, 57, 109–110
non-retaliation principle, 80–81, 84
Novartis, 72
Obama, Barack, 34, 177
Obama administration, 44, 53–54, 74, 87, 104, 113, 178, 194, 211
Obergefell v. Hodges, 118, 134
O’Connor, Sandra Day, 196–197, 203
OCR. see Office for Civil Rights (OCR)
OFCCP. see Office of Federal Contract Compliance Programs (OFCCP)
Office, The (TV show), 142
Office for Civil Rights (OCR), 44, 165, 175, 187, 194
limiting power of via courts, 198–199
Title IX guidance, 49–56
Office of Federal Contract Compliance Programs (OFCCP), 34, 37, 57, 60, 63, 74, 80,
118, 162, 164, 205–206, 209
Office of Management and Budget (OMB), 94–95, 99, 102–103
Office of Personnel Management (OPM), 126, 127
Office of the Director of National Intelligence, 95
Office Space (film), 142
Ohio State University, 64
OPM. see Office of Personnel Management (OPM)
Oracle, 61
“Oriental” category, 96, 97, 101
Our Lady of Guadalupe School v. Morrissey-Berru, 141
patronage, 122–123
Pendleton Civil Service Reform Act, 123, 125, 127
Perlstein, Rick, 32
Philadelphia Plan, 162
Planned Parenthood of Southeastern Pennsylvania v. Casey, 134
Pluckrose, Helen, 9
pluralism, 121, 135, 215
polarization, 143–149, 171, 177, 181–182, 186. see also education polarization
policymaking, 185–186
political biases, 145
political correctness
“PC wars,” 6
rise of, 23
as secular theocracy, 9
political salience, 184–189, 186
politics
affective polarization in, 143–149
false dichotomy of culture vs., 21–23
as a phenomenon of wokeness, 15–17, 19–21
and voting behavior, 1–2
Ponnuru, Ramesh, 2
populism, 154–155, 179, 220
postmodernism, social justice ideology and, 9
“post-truth world,” 145–149
Powell, Jerome, 104
Powell, Lewis F., Jr., 13
Pregnancy Discrimination Act (1978), 174
President’s Committee on Equal Employment Opportunity, 34
Price Waterhouse v. Hopkins, 109
Professional and Administrative Career Examination (PACE), 127
Project on Fair Representation, 204
protected classes, 6, 16–17, 28, 37, 42, 57, 63, 80–81, 133, 147, 155, 175
public health and safety, wokeness in, 21
public opinion, generational turnover and, 27
Puerto Ricans, 18, 97–98, 105–106
Quillette (online publication), 19, 201
Quinnipiac University, 51
quotas
“critical mass” as indistinguishable from, 57–58
explicit, 59, 127–128
as forbidden, 37, 57
lack of Republican conversation on, 158
racial, 12–15
soft, 125, 146
unofficial, 58
race
-consciousness, 125
discrimination, 57, 62
government classification of, 90–91, 93–97, 101–105, 211
harassment, 45–46
-norming in exams, 127–128
quotas, 12–15
strict scrutiny test, 193, 196
Reagan, Ronald, 152, 154, 156, 163–167, 174, 179
Reagan administration, 76, 99, 127, 164, 170, 181
Reconstruction, 32
Reeves v. C. H. Robinson Worldwide, Inc., 47
referendums, 188, 250n53
Rehnquist, William, 13, 57
religion, vs. ideology, 217–218
religious discrimination, 95–96
religious freedom, 134–135, 141
Reno, Janet, 86
Reorganization Act (1978), 126
Republican National Convention, 180
Republican party
approaches to civil rights law, 151–154, 158, 177–178, 212–213
Bipartisan Cartel era, 153, 158–163, 174
Conservative Neglect era, 153, 170–178
government control by, 151
importance of a unified, 179–182
intellectuals in, 154, 172
percentage in Congress voting for civil rights bills since 1972, 173
representation in the judiciary, x, 162, 189
Republicans Divided era, 153, 163–170, 174
and “Secret Congress” theory, 153
uniting the new right and the establishment, 154–158
voting behavior, 1, 171
Republicans Divided era, 153, 163–170, 174
reverse discrimination, 30, 37, 40–43, 81, 83, 202–206
Ricci v. DeStefano, 193, 195, 196
riots, 14–15, 84, 148, 160
Road to Serfdom, The (Hayek), ix
Roe v. Wade, 134
Rogan, Joe, 3
Rogers v. Equal Employment Opportunity Commission, 45, 48
Romney, Mitt, 171
Roosevelt, Franklin D., 33, 96
Roosevelt, Theodore, 123
Roybal, Edward, 98
Rozado, David, 19
Rufo, Chris, 178, 181
Russian Orthodox Church, 10
Sacks, David, 9
Sailer, Steve, 116
Sanders, Bernie, 3
San Francisco State University, Asian American Studies Department, 92
Scalia, Antonin, 62, 118, 193, 195–196
schools. see also colleges and universities
athletics programs, 110–111
bureaucratization of, 86
Covid-19 pandemic closures, 59–60
dress codes as violating the Equal Protection Clause, 110
mask mandates, 59–60
Title VI provisions, 44
Schultz, Vicki, 113
Schumpeter, Joseph, 139
Second Amendment, 212
Second Circuit Court of Appeals, 110
“Secret Congress” theory, 153
Section 1981, 62, 199–200
Securities and Exchange Commission (SEC), 206
Seventh Circuit Court of Appeals, 110–111
Severance (TV show), 142
sex discrimination
ban on, 28–29, 108–110
gender stereotypes as a form of, 109, 137
harassment law, 46–49
philosophical inconsistencies, 15–16
Title IX and, 49–56
Title VII provisions, 112
sex segregation, 108
sexual harassment, 46–47, 52–56, 69, 79, 113–114, 117–118
Sexual Harassment of Working Women (MacKinnon), 46
sexual orientation, 5–6, 93, 117–118
sexual violence guidelines, 52–56
Shelby County v. Holder, 176
Six Circuit Court of Appeals, 136
Skaff v. Meridien North Am. Beverly Hills, LLC, 71
Skrentny, John, 14, 96–97, 159, 180
slavery, 32, 148
Small Business Act (SBA), 102
Smith, Howard, 28
social engineering, 7, 11
absurdity of government attempts at, 137–138
civil rights law as a tool of, 12, 75
as preventing organic cultural development, 140
of the private sector, 135
Title IX as a form of, 111
via Title VI, 86
social justice ideology, postmodernism and, 9
social peace theory, 148
Sonmez, Felicia, 84
Southwest Airlines, 111–112
Soviet Union, collapse of, 120
Sowell, Thomas, 148
Spanish-speaking, as a minority, 98–99
speech
contributing to a hostile work environment, 47–48
free, 63, 183, 219
purging “offensive,” 136
restricting, as a pillar of wokeness, 5, 18, 63
workplace, 12, 69
sports, 49–52, 110–111, 165–166, 240n42
Stamped from the Beginning (Kendi), 238n21
standardized testing, 41–42, 85, 124–130
Stanford University, 9, 95
states
role of in fighting wokeness, 208–209
strong vs. weak, 70
Statistical Policy Directive, 15, 94, 99, 102
Stevens, John Paul, 166
stopaapihate hashtag campaign, 92
“Strength of a Weak State, The” (Dobbin & Sutton), 70
strict scrutiny test, 193, 196
strong states, 70
Students for Fair Admissions v. Harvard, 58, 198
Students for Fair Admissions v. University of North Carolina, 58
Substack, 25
Suk, Jeannie, 53, 54
Supreme Court, 13, 20, 31, 56–57, 162, 165–167, 169–170, 184, 193–194, 195–201,
224–225. see also specific cases
Sutton, John, 70
Sutton v. United Air Lines, 169, 170
Sylvester, Edward C., 37
Taleb, Nassim Nicholas, 217
Tea Party movement, 171, 174
Teles, Steven, 188–189
Tesla, 73
Texas Department of Housing and Community Affairs v. Inclusive Communities
Project, 196
Thiel, Peter, 3, 9
Thomas, Clarence, 164, 196
Title IX, 6–7, 33
applied to private schools, 56
athletics programs, 49–52, 110–111, 165–166
gender ideology, 54
rise in bureaucratization to address, 65, 87
rolling back of by Trump, 55–56, 87, 152, 175, 178, 194
sexual violence guidelines, 52–56
Title VII provisions, 30
disparate impact standard, 39–45, 189, 192–194
harassment law, 45–49
non-retaliation principle, 80–81, 84
punitive damages awards, 65, 72–78
social engineering via, 86
Title VI provisions, 49, 57
disparate impact standard, 44, 189, 192
harassment law, 69
Tower, John, 40
Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 169
Truman, Harry, 96
Truman administration, 103
Trump, Donald, 1, 3, 145, 147, 152, 157, 176–178, 180, 182, 197, 211
Trump administration, 55–56, 87, 104, 152, 175, 192, 194
Twitter, 84
UN disability treaty, 174, 177
United Steelworkers v. Weber, 43
universities. see colleges and universities
University of California system, 20
UC Berkeley, 10, 87
UC Davis, 13
University of California v. Bakke, 13, 15
University of Michigan, 13, 57–58, 169
unprotected classes, 57, 63, 81, 156, 223
urban violence, 14–15, 84, 148, 159–160
US Army, 128
US Commission on Civil Rights (USCCR), 44, 103, 125, 126
validity-diversity trade-off, 124, 127, 129
Violence Against Women Reauthorization Act (2013), 54
Volokh, Eugene, 47–48, 199
voting
behavior, drivers of, 1–2, 171
rights, 60–61, 163, 175–176
Voting Rights Act, 163, 174, 175
Wallace, George, 160
Wards Cove Packing Co. v. Antonio, 166–167
Washington Post (periodical), 84, 127, 168, 178
Watts, J. C., 168
“white resentment,” 144
Williams, Harrison A., 41
Wisconsin v. Yoder, 134
“woke capital,” 82, 87, 188
“Woke Institutions Is Just Civil Rights Law” (Hanania), viii–ix
wokeness
anti-wokeness agenda, 190–191
characteristics of the main doctrines of, as law, 26
contradictions of, 16–17
as a cultural phenomenon, vii–ix, 17–18, 89, 221
entities blamed for, 89
as government policy, 155–156
“Great Awokening,” 19–20
imagining a world without, 221–234
as law, 63, 186, 186
as a paper tiger, 216–221
as a philosophical phenomenon, 8–10, 19
pillars of, 4–5, 18, 63, 195
as a political phenomenon, 15–17, 19–21
Republican obsession with, 179–180
role of Congress in fighting, 206–208
role of state governments in fighting, 208–209
Wolfe, Tom, 14
Wolters, Raymond, 164
women
athletics programs and Title IX, 49–52, 110–111, 165–166
civil rights law and ideas of womanhood, 113–114
differences between men and, 111, 132–133
government’s vision of, 93–94
in the labor force, 114–115
sex discrimination, 15–16, 28–29, 46–49, 108–115, 137
sexual harassment, 46–47
workplace. see also employers and employment; human resources (HR) bureaucracy
as a community, 131–132
cultural portrayals of corporate life, 142–143
environment, cultural diversity and, 130–138
equality, 114–115
“hostile work environment” doctrine, 6, 47–48
sexual harassment, 46–47
speech and civil rights law, 12, 69
Yale University, 64, 87
About the Author
RICHARD HANANIA is a research fellow at the University of Texas and
the president and founder of the Center for the Study of Partisanship and
Ideology. He was previously a research fellow at the Saltzman Institute of
War and Peace Studies at Columbia University. He is also the author of
Public Choice Theory and the Illusion of Grand Strategy. Hanania earned
his PhD in political science from UCLA and is a graduate of the University
of Chicago Law School.
Discover great authors, exclusive offers, and more at hc.com.
Copyright
THE ORIGINS OF WOKE. Copyright © 2023 by Richard Hanania. All rights reserved under
International and Pan-American Copyright Conventions. By payment of the required fees,
you have been granted the nonexclusive, nontransferable right to access and read the text
of this e-book on-screen. No part of this text may be reproduced, transmitted, downloaded,
decompiled, reverse-engineered, or stored in or introduced into any information storage
and retrieval system, in any form or by any means, whether electronic or mechanical, now
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Broadside Books™ and the Broadside logo are trademarks of HarperCollins Publishers.
FIRST EDITION
Cover photograph © Getty Images
Library of Congress Cataloging-in-Publication Data
Names: Hanania, Richard, author.
Title: The origins of Woke : civil rights law, corporate America, and the triumph of identity
politics / Richard Hanania.
Description: New York : HarperCollins Publishers, 2023. | Includes index. Identifiers:
LCCN 2023013172 (print) | LCCN 2023013173 (ebook) | ISBN 9780063237216
(hardcover) | ISBN 9780063237230 (ebook)
Subjects: LCSH: Civil rights—United States. | Corporate governance—Law and legislation
—United States. | Corporations—Political aspects—United States. | Social engineering
—United States. | Identity politics—United States. | Business and politics. | Republican
Party (U.S. : 1854– )
Classification: LCC KF4749 .H345 2023 (print) | LCC KF4749 (ebook) | DDC 342.7308/5
—dc23/eng/20230608
LC record available at https://lccn.loc.gov/2023013172
LC ebook record available at https://lccn.loc.gov/2023013173
Digital Edition SEPTEMBER 2023 ISBN: 978-0-06-323723-0
Version 08022023
Print ISBN: 978-0-06-323721-6
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