How Reagan Almost Crushed Wokeness
Reaganism didn't fail, we failed Ronald Reagan
In The Age of Entitlement, Chris Caldwell criticizes Republicans for having been unable to “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.” In an interview after the publication of his book, he acknowledged that the Civil Rights Act wasn’t going anywhere, but said he wasn’t sure what to do instead.
I say that we have a situation in which the Democrats only get the full rights they desire by withdrawing certain freedoms of choice from the American public. And for the Republicans to get the full unbridled democracy that they want would require the repeal of the Civil Rights Act. But I’m not wishing for that. Again, this book is a history, not a manifesto.
I simply wanted to describe the intractability of the partisan divide. I don’t think the Civil Rights Act is going anywhere either. So where does that leave us? Well, I’m not sure.
Fortunately, things aren’t nearly that hopeless. Since 1964, there have been a series of laws, court cases, and government regulations that have brought us to the point where wokeness dominates everything. Knowing a bit of the history here is worthwhile because it can show what is possible short of repealing the law that, as Caldwell writes, in effect replaced the old Constitution.
In fact, a previous generation of conservatives at the pinnacle of power, namely, the Burger Court and Ronald Reagan, had actually won a major battle in the war on wokeness in the 1980s. This contradicts the New Right narrative that critiques “Zombie Reaganism” and argues Republicans have erred in blindly following a policy agenda that was designed to deal with the problems of a completely different era (see here, here, here, and here).
Had Ronald Reagan gotten his way, in recent decades we wouldn’t have had the war on men’s college sports; mandatory affirmative action being imposed on government contractors; the federal government micromanaging the sex lives of college students; sexual assault kangaroo courts and expanding Title IX offices on university campuses; Department of Justice investigations that operate on the assumption that police are practicing discrimination if they arrest a disproportionate number of blacks; transgender sports and bathroom policies being made by the Department of Education; and local school districts being bullied by Washington for falling short of “equity” standards in areas like gifted programs and student discipline. Far from having nothing to offer conservatives today, the battles of Ronald Reagan remain relevant for understanding how everything became woke and what to do about it.
“Racist” Policing, “Racist” School Discipline, and Sports Equity
Before getting to Reagan and the contemporary relevance of the issues he faced, it is necessary to have some idea of how civil rights law works and what it does. While a full examination of the topic is beyond the scope of this essay, learning a few legal basics can go a long way in providing insight into the issues involved.
For our purposes, there are two important legal provisions to understand. First is Title VI of the Civil Rights Act of 1964. Here’s what it says.
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
Interestingly, there was no prohibition on sex discrimination in Title VI, as there was in Title VII, which dealt with employment. Title IX of the Education Amendments of 1972 made gender discrimination in schools and universities a federal issue. Modeled on Title VI, it reads as follows, with the parts different from its predecessor in italics.
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.
Under the Administrative Procedures Act (APA), Congress passes statutes, and agencies make “rules” interpreting them. This is done through a highly formalized process that involves a “notice and comment” period that gives the public an opportunity to submit feedback regarding the proposals of an agency. Of course, even rules don’t cover every possible ambiguity in interpretation, so agencies sometimes also make statements that clarify rules. Importantly, such clarifications are not supposed to be a way to make substantive changes to underlying law.
Today, Title VI and Title IX are two of the main tools used for forcing wokeness onto institutions, particularly schools and universities, and this is usually done well outside the rulemaking process.
Title VI is why the Obama administration could go after schools for disciplining white and black students at different rates. You see, elementary and high schools receive federal money, so they can’t discriminate. This means that if more black kids get detention, that’s something the feds need to look into. The same logic applies when Title VI is used to go after local police departments for supposedly racist practices, which to liberals means stopping and arresting blacks at higher rates than whites. The Department of Education has investigated programs for gifted students on similar grounds. In 1974, the Supreme Court deferred to the Department of Education in finding that not providing bilingual education to the children of immigrants was also a violation of Title VI, although later decisions made it difficult to enforce this invented right.
Through Title IX, the federal government has been able to claim jurisdiction over sports and sex at schools and on university campuses. The provision is administered and enforced through a section of the Department of Education called the Office of Civil Rights (OCR). Of course, nothing in Title IX mentions athletics at all, and college sports do not get federal funding anyway. Nonetheless, in 1975 OCR promulgated a rule that said schools needed to “effectively accommodate the interests and abilities of both sexes.” At the time, this arguably meant that colleges and universities needed to provide men and women similar opportunities in ways that take into account the differences between them.
As political scientist R. Shep Melnick writes, 1975 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 the law and its 1975 rules ever since.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 that required that the demographics of any varsity athlete population resemble that of a university as a whole, or for institutions to at least work towards that goal. Thus, if women made up 55% of a student body, they should also make up 55% of varsity athletes. Other circuits followed, and in 1996 OCR issued another “clarification” endorsing the Cohen standard. Melnick calls this “leapfrogging,” which involves a process of “courts and agencies each taking a step beyond the other, expanding regulation without seeming to innovate.”
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, generally frowning on ones that don’t provide girls with enough masculine competition. Thus, when Quinnipiac University was sued in 2010, 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.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 official efforts to make men and women more psychologically similar. Go back to the text of Title IX, and imagine the kind of sophistry necessary to read into it a war on “stereotypes.” Nevertheless, the idea that female athletics need to be more masculine is why social engineers have shown a distinct hostility towards counting cheerleading as a sport, as well as refusing to countenance less competitive and all-consuming models of female athletic involvement. Needless to say, women outnumbering men in student government, music, and other kinds of extracurricular activities has never bothered OCR or the federal judiciary.
Colleges and universities have dealt with the hard fact that men are more interested in athletics by cutting popular male sports and padding their numbers of female “athletes.” This involves methods such as including those who never attend practices or games on their lists and double- or triple-counting participants. One common loophole even allows schools to categorize male practice players on women’s teams as female athletes (see this thread). Title IX has been particularly good for women’s rowing. Although there is little demand for the sport, it has the advantage that its rules can be manipulated in order to artificially inflate the number of participants. Women’s rowing was at the center of the 2019 USC admissions scandal that led to the indictment and eventual jailing of two actresses. Amidst the outrage directed at these mothers, few noticed the absurdity of being able to get into college by pretending to play a sport that would practically cease to exist if not for a half-century old federal law.
One appellate court once went as far as allowing a Title IX lawsuit to go forward on the grounds that a high school was arguably discriminating against female athletes by being more likely to schedule boys basketball games on weekends (thread). The court dismissed the idea that higher demand for watching boys basketball could justify this, arguing that as a matter of federal law making decisions based on such “stereotypes” was a civil rights violation.
The Regulation of College Sex, and the Rise of Trans
Title IX being used to achieve “sports equity” is strange enough. Even worse, the same law has become a way to impose radical feminist theories onto schools and universities by managing the personal lives of students.
There is of course nothing in the plain text of the provision that mandates that universities become involved with private matters having to do with relationships, dating, and sex. This was understood for decades after the law was passed. Until the Clinton administration, Title IX did not even address peer-to-peer conduct. Rather, it simply required schools to create grievance procedures to determine whether institutions themselves were discriminating.This changed when OCR in 1997 put out guidance that created an affirmative duty to stop sexual harassment.
It elaborated on this new obligation in a document that was released on Clinton’s last day in office, seemingly in the hopes that it could force the hand of his successor. The Bush administration felt free to ignore these guidelines, as they had not gone through APA rulemaking. The new standards therefore went unenforced for years, before coming back with a vengeance after Democrats regained the White House.
Jacob Gersen and Jeannie Suk – Harvard Law professors and husband and wife – have written about the regulation and bureaucratization of sex on college campuses that took place under the Obama administration. Universities now not only had an affirmative duty to stop sexual harassment and assault. They were also to implement grievance procedures to address complaints students could make against their peers and create bureaucracies to meet their new obligations. In 2011, OCR released a Dear Colleague letter that famously required a “preponderance of the evidence” standard to adjudicate sexual assault claims. Much of the activity of the Obama administration showed the hallmarks of the ideas that at the time were becoming popularized through the Great Awokening. For example, a White House Task Force created a model survey universities were encouraged to use that defined “sexual violence” to include unwanted remarks about a person’s physical appearance. Obama-era regulations were also responsible for the Title IX sexual assault kangaroo courts that were widely ridiculed and went too far even for much of the mainstream press and the faculty of Harvard Law School.
The rules and guidelines created under civil rights law are given effect through the practically mandatory creation of new bureaucracies. As with the area of college athletics, we see an emphasis placed on social engineering and correcting supposedly problematic behavior and thought in the dating lives of individuals. Melnick notes that no word was repeated more frequently in OCR guidance documents of the time than ‘training.’”In a 46-page letter released by OCR in 2014, the string of letters “train” appears 80 times. OCR during the Obama administration would investigate schools and reach settlements with them that included provisions requiring the adoption of expansive definitions of sexual harassment and assault, and sometimes indoctrinating students and staff with feminist theories of systematic gender oppression.
A specialized bureaucracy has been needed to enforce sex regulations, so the Obama administration recommended that schools have a full-time Title IX coordinator. The person in this position was supposed to be able to act independently of the rest of the university administration and report directly to the leadership of the institution. Coordinators were to be “appropriately trained,” with a recommendation that schools see OCR regional offices for technical assistance in the process.
According to what has been called “administrative clone theory,” every new form of federal spending comes with a new federal office to administer the money. This requires “clones” of those federal offices within universities themselves.In 2016, The New York Times reported on the expanding bureaucracy hired to keep up with the Obama regulations.
At Yale, nearly 30 faculty and staff members work part time or full time in support of Title IX efforts, and twice as many faculty and staff members and students volunteer as advisers and committee members. In addition, Yale has trained 48 students who are paid to listen to students and intercede when they seem to be in distress.
Occidental College in Los Angeles hired a law firm, Pepper Hamilton, to conduct what was essentially a Title IX compliance audit.
Harvard has 50 full-time and part-time Title IX coordinators across 13 schools. Ms. Karvonides, a civil rights and education lawyer, was hired in March 2013. Under her leadership, the university adopted the new sexual misconduct policy and created a bureau of trained investigators.
Gersen and Suk note the strange turns taken by these new regulatory efforts. The Department of Education came to require that schools 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.”In subsequent years, universities in some cases would start to require “affirmative,” if not “enthusiastic,” consent for sexual acts. They would define assault to include sex acts performed while students were under the influence of drugs or alcohol, and even suggest jokes they could use to make sure that their partners were sufficiently ready to consent.
Under Obama, Title IX was also used for the first time to force primary and secondary schools to allow students to use the bathrooms consistent with their “gender identity,” thus beginning the legal battles over trans issues that have become so familiar today.
The Trump administration tried to reverse all of this. Secretary of Education Betsy DeVos declared in her first year that “the era of ‘rule by letter’ is over.” The OCR website now lists 9 letters that were released by the Obama administration but withdrawn under Trump. Nonetheless, even after the new president took office, schools were still operating under settlement agreements they had negotiated with OCR, investigations continued, and Title IX offices within universities that were created and strengthened during the Obama years retained their institutional power.
It has proved easier to grant power to social engineers than to take it away. This is particularly true on college campuses, where many administrators and bureaucrats are sympathetic to feminist causes, and the Obama administration helped create more of them. In June, the Biden administration announced that it would effectively seek to institute many of the Obama policies withdrawn under Trump and this time it would use the Administrative Procedures Act. This will end up making it more time consuming and difficult for future Republican presidents to undo the damages wrought by this Democratic administration.
The Civil Rights Restoration Act of 1988
None of this had to happen. In 1984, the Supreme Court decided the case of Grove City College v. Bell. Almost all education establishments receive some funding from the federal government, if not in research dollars then in student grants and loans. Recall that Title IX bans discrimination in “any education program or activity receiving Federal financial assistance.” Did that mean that the federal government could enforce its “non-discrimination” standards across an entire institution as long as something having to do with that institution got money from Washington?
The Supreme Court ruled that it could not. The Department of Education had argued that Title IX covered practically everything at Grove City College, a small liberal arts school in Pennsylvania, from faculty hiring and promotions to how it treated its female students. The Supreme Court disagreed. Under its decision, giving grants to students meant that the federal government could make sure a university wasn’t “discriminating” in its financial aid office. But the Supreme Court found “no persuasive evidence suggesting that Congress intended that the Department’s regulatory authority follow federally aided students from classroom to classroom, building to building, or activity to activity.” Financial aid for students could not be a backdoor to regulate an entire school or university.
In response to this ruling, the Reagan administration largely shut down investigations of athletic programs, and scaled back enforcement of anti-discrimination claims on college campuses more generally on the grounds that it lacked jurisdiction. Had Grove City stayed in place, all the Title IX innovations of later decades in the areas of sports, sexuality, and trans issues would have been impossible, or at least much more difficult.
Unfortunately, four years after that decision, Congress overruled the Supreme Court when it passed the Civil Rights Restoration Act of 1988. This statute clarified that Title VI and Title IX meant that any institution receiving federal money must comply with civil rights law in all areas of operation. The bill had nearly unanimous support among Democrats in the House (242-4), with only a slight majority of Republicans voting against it (73-94). Senate Republicans were even worse, with a majority voting in favor (27-14). These totals 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.
Ronald Reagan vetoed the bill, and in doing so cited the threat to religious liberty that it posed and his opposition to expanding government power.
The bill presented to me would diminish substantially the freedom and independence of religious institutions in our society…
Businesses participating in Federal programs, such as job training programs, would be subject to comprehensive Federal regulation. While some proponents of S. 557 have claimed that it would not apply to farmers who receive Federal crop subsidies or food suppliers who accept food stamps, the ambiguity in the statute and its legislative history indicates that these exemptions should be made explicit.
A significant portion of the private sector – entities principally engaged in the business of providing education, health care, housing, social services, or parks and recreation – would for the first time be covered nationwide in all of their activities, including those wholly unrelated activities of their subsidiaries or other divisions, even if those subsidiaries or divisions receive no Federal aid. Again, there was no demonstrated need for such sweeping coverage.
In the end, Congress had the votes to overrule the veto. Title IX enforcement would not only go back to what it was but ramp up and become ever more intrusive, as the mainstream Left turned more radical in its ideas about gender, which it would force onto higher education and even local school districts. Had Republicans united to uphold 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 micromanaging athletics programs and the sex lives of college students. The implications of Grove City for Title VI were less clear than for Title IX, but given the similarity in language between the two provisions, the ruling almost certainly would have had the same effect in that area.
Presidents don’t veto a lot of bills. Not including pocket vetoes, Ronald Reagan vetoed 39 in his eight years in office, of which nine were overturned. His fight against the Civil Rights Restoration Act was therefore one of only a handful of cases in which Reagan disagreed so strongly with Congress that he was willing to take a stand in what turned out to be an embarrassing loss for his administration.
Liberals are of course never finished in trying to expand civil rights law, and Title IX is no exception. Recently, a district court ruled that Title IX even applies to private schools that don’t take any federal money because they get tax free status, which is in effect a subsidy (see thread). Although this ruling only applies to schools in Maryland, if other courts follow the decision it could threaten Hillsdale and the University of Austin – which do not even take financial aid for their students so that they can avoid federal compliance issues – as well as practically every private primary and secondary school in the country. Such an understanding of the law would mean that parents no longer have an “escape hatch” through which to at their own expense get their kids out of the clutches of civil rights activists and bureaucrats. Conservatives currently holding the Supreme Court probably means there are limits to how much traction this idea can get. Nonetheless, the Maryland decision stands as a reminder of what liberals would be doing if they controlled a larger share of the judiciary. None of this would even be possible without the Civil Rights Restoration Act.
They’re not done with Title VI either. The Biden administration has started talking about “environmental justice,” which in future years could mean bringing the disparate impact standard to things like federally funded public works projects. You can see civil rights law as the pipeline that takes ideas out of academia and activism we would otherwise be able to ignore and transforms them into public policy.
Reagan Also Tried to End Affirmative Action in Government Contracting
If that’s not enough for you, Ronald Reagan also tried to end race and sex preferences in government contracting. In 1965, President Johnson signed Executive Order 11246, which mandated contractors “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin.” Of course, in the Orwellian world of civil rights, “equal treatment without regard to some protected category” always means the opposite of what it says, and this would prove no exception.
Relying on the Johnson Executive Order, it was the Nixon Labor Department that started forcing affirmative action onto construction projects, first in Philadelphia, and then nationwide. Hilariously, this was some kind of plot to split the Democratic Party by pitting organized labor against civil rights organizations.A few years later, seemingly without Nixon knowing what was going on, the Philadelphia Plan was followed up in 1971 by Revised Order No. 4, which expanded regulations beyond the construction industry to all contractors and subcontractors doing business with the government beyond a minimum threshold. This forced such businesses to adopt goals and timetables whenever women or minorities were shown to be “underutilized” relative to the relevant labor pool.
If you’re a contractor of sufficient size now, the Labor Department provides detailed requirements regarding how you must classify your employees by race and sex, make sure designated minorities don’t face “harassment,” report to the government where you fall short in achieving demographic balance, and provide a plan to do something about it. As a result, businesses now exist that specialize in “affirmative action compliance.” Refuse to go along – say because you believe in color-blindness – and you can be fined or barred from government contracting. This has no small effect, as affirmative action regulations end up reaching about a quarter of the private sector workforce.
In 1985, Attorney General Ed Meese drafted an executive order that would have prohibited the Department of Labor from using statistical evidence to charge contractors with discrimination. This would have all but eliminated the “goals and timetables” requirements. Conservatives saw that “with the stroke of a pen...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.”The administration was internally divided over the issue, with Secretary of Labor Bill Brock arguing for a small revision to EO 11246 that would emphasize the color-blind language of the Civil Rights Act.
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. Faced with such overwhelming political pressure, Reagan punted on the issue, and the status quo has remained in place ever since. Despite most Americans opposing racial quotas, a bipartisan cartel made sure that affirmative action in government contracting survived its most serious threat since it was created by the Nixon administration.
Why History Matters
The story of Ronald Reagan and his political battles is valuable today because it suggests intermediate steps between “doing nothing” and “repealing the Civil Rights Act.” It’s great that Chris Caldwell has gotten conservatives to understand the connection between our legal system and wokeness as a cultural phenomenon. However, if you think everything bad that has happened since 1964 naturally came from the Civil Rights Act, and everyone agrees that you can’t repeal that law, then there’s really nothing that can be done.
As it turns out, there have been other major legal and political battles over the last half century, some of which if they had gone differently could have struck a blow against wokeness. What’s frustrating about the Civil Rights Restoration Act is that you had conservative justices on the Supreme Court willing to push back against some of the extreme policy choices of the 1960s and 1970s, and a president who was on the same page. Unfortunately, he was betrayed by moderates in the party. The triumph of wokeness as law is ultimately their fault, not Ronald Reagan’s.
Of course, Reagan wasn’t the only Republican who saw the danger of “civil rights.” Here is Barry Goldwater, sounding like a prophet in his speech explaining why he was voting against the Civil Rights Act.
To give genuine effect to the prohibitions of this bill will require the creation of a Federal police force of mammoth proportions. It also bids fair to result in the development of 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. These, the Federal police force and an “informer” psychology, are the hallmarks of the police state and landmarks in the destruction of a free society.
The Republican nominee went down in flames in 1964. Soon, however, the American public could see the fruits of the Great Society. Under Johnson, liberals got a series of major bills enacted meant to address racism and poverty, and the results of this included the destruction of our great inner cities and rates of crime, drug abuse, and illegitimacy that would have been unthinkable in Eisenhower’s America. Voters then elected Nixon, gave Democrats a single term in office after Watergate, and then turned to Reagan, who had been considered a radical figure only a decade earlier. Nixon and Reagan appointees on the Supreme Court began undoing some of the damage of civil rights law, and to limit the reach of Title IX and Title VI all Republicans had to do was stick together and not let Democrats in Congress return things back to the status quo.
I think a lot of the Reagan-bashing we see today is the result of intellectual laziness. Young conservatives know that Ronald Reagan was president, boomers worship him, and everything is woke and terrible today, so they assume there must have been something very wrong in Reagan’s worldview that led us to this point. Thus, we need “new ideas” that are relevant for today’s challenges. This instinct is behind the turn to the idea of “Common Good jurisprudence” among some conservatives, a doctrine I critiqued in a letter published in First Things a few months ago. On the other side of the movement, conservatives who still praise Reagan tend to be more politically correct and likely don’t want to remember him as an “opponent of civil rights,” so he doesn’t get defended on that basis.
In reality, leaders like Goldwater and Reagan saw what was happening, warned about it, and did their best to stop it. They understood the role of civil rights law in transforming the culture better than conservatives today. These battles were lost because Democrats could count on moderates such as Nixon, Ford, Dole, and the Bushes – the father more than the son – to actively assist them in expanding the reach and scope of social regulation by the federal government.
The conservative movement is also at fault here. It failed to create the activist groups, non-profits, and networks necessary to challenge the excesses of civil rights law. Bob Dole not only helped save affirmative action in government contracting, but also defended the Civil Rights Restoration Act. He nonetheless remained in good enough standing among conservatives to end up being the Republican nominee for president in 1996. Later, the conservative movement got behind George W. Bush, who made a few noises about the “soft bigotry of low expectations” while promising to do little about civil rights law and delivering even less.
In the decades after Reagan, conservatives have found themselves captivated by causes as worthy as making sure Bill Clinton didn’t have too much fun with his interns, the need to democratize Iraq and Afghanistan for some reason, “Benghazi,” and now flying to Taiwan. Meanwhile, they have ignored civil rights law, not even remembering Ronald Reagan for trying to prevent many of the problems we see today.
There has been a learning process though, and the conservative movement has been getting better at purging those who are liberal on issues the party thinks are of fundamental importance from its ranks. Unlike in the 1980s, today when civil rights bills come before Congress, Republicans are practically unanimous in opposition. We’re all Ronald Reagan now. Unfortunately, moderate Republicans of a previous generation let things get so bad that holding the line is no longer enough.
It’s too much to ask politicians to repeal the Civil Rights Act. But conservatives can work to exhort at least two promises from their politicians: trying to repeal the Civil Rights Restoration Act of 1988, and support for amending Executive Order 11246 to prohibit affirmative action in government contracting instead of requiring it. Instead of burying Reagan, the establishment and the New Right should come together under the banner of continuing his legacy.
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Zombie Reaganism often refers to Reagan’s economic policies too, which are said to be flawed or no longer relevant. Critics of Reagan are wrong on this point too, but explaining why will have to wait for another day.
Melnick, R. Shep. 2018. The Transformation of Title IX: Regulating Gender Equality in Education. Brookings Institution Press, pp. 87-89.
Ibid., pp. 15-16.
Ibid., pp. 7-12.
The discussion of sex regulations on college campuses comes mostly from Gersen, Jacob and Jeannie Suk. 2016. “The Sex Bureaucracy.” California Law Review 104: 881-948.
Melnick, Transformation of Title IX, pp. 206-10.
Leslie, Larry L. and Gary Rhoades. 1995. “Rising Administrative Costs: Seeking Explanations.” The Journal of Higher Education 66(2): 187-212, p. 194.
Gersen and Suk, “The Sex Bureaucracy,” p. 912.
For the story behind the Grove City controversy, see Graham, Hugh Davis. 1998. “The Storm over Grove City College: Civil Rights Regulation, Higher Education, and the Reagan Administration.” History of Education Quarterly 38(4): 407–29.
Skrentny, John David. 1996. The Ironies of Affirmative Action: Politics, Culture, and Justice in America. University of Chicago Press, ch. 7.
Wolters, Raymond. 1996 Right Turn: William Bradford Reynolds, the Reagan Administration, and Black Civil Rights. Routledge, ch. 13.
How does the "wokeness depends on the CRA" thesis account for things like Canada or UK rapidly becoming even worse than us on these things? Or the fact that D's were unanimous and R's were willing to join to overturn a veto in an environment which was so out rightly and openly hostile to affirmative action policies?
Even accepting that the CRA and its implementation are the core of the problem, short of the Supreme Court using one of these affirmative action discriminations cases to go full Dobbs on the topic, I don't see any kind of small whittling rule changes, or law changes for that matter, putting a dint in how these things operate in practice.
The judges and bureaucrats will just interpret and ignore what they need to to maintain and promote the woke. If they get overruled by the supreme court in a way that lacks real teeth, they'll just reformulate a functionally identical policy and send it right back through the cycle.
Until the courts address the idea that "disparate impact" is proof of de facto discrimination, you have your problem. Even if, as Reagan attempted, you limit the scope of Civil Rights Laws, the scope can always be subsequently expanded. From a functionalist perspective, once you build the bureaucracy, it will continue to carry out its mission even if the original targets have disappeared. The goal is to invent new forms of discrimination, as we have seen, to support an ever expanding mission. Reagan's failed tactical efforts were ultimately futile even if he had succeeded. After all, H.W. Bush gave us the ADA under his administration, so now any time you try and sack an incompetent white person you get an ADA suit. Reagan was a failure here, seeking tactical victories while his enemies scored strategic victories, and "Zombie Reaganism" is, of course, the Con Inc. take on Reagan distilled and refracted to please the Kochs Brothers and the Paul Singers of the world.
Further, given the halo surrounding civil rights (and the manifest evils of segregationists in the South), there is a cultural dimension in that civil rights occupies the place of social legitimacy, and opposition to civil rights immediately places one in the demonic category. Conservatives support for civil rights is largely based on what they see as "racism" on the grounds of merit, and so pro-white affirmative action is as bad as pro-black affirmative action, because they are both forms of nepotism, so conservatives are unwilling to reject anti-racist norms, and you get the motte and bailey effect. You don't see anyone on the mainstream right defending freedom of association, even the Libertarian presidential candidates say how they support CRA. Nothing can change until there is a shift on the moral scale of legitimacy.
Further, public opinion largely opposes affirmative action, but the public probably doesn't understand the actual degree of group disparities which would be exposed if affirmative action were ended. So you have a political problem in that if efforts succeed, they will probably both energize opponents and reduce public support.
Reagan's tactical failure was largely motivated by giving some red meat to the base, there was no strategy and there has never been any real strategy on the right as these policies are frankly bipartisan (maybe moderate Republicans are "traitors" but the GOP has a lot of traitors, and it needs them to win elections).
Civil Rights has social legitimacy, it has a large bureaucracy for enforcement, it is largely supported by major corporations and donors, Hollywood and the MSM unanimously push content supporting its narrative, and Reaganism offers, at best, tactical and temporary pyrrhic victories. Yes, public opinion disfavors its excesses, but never to the point of questioning the major assumptions. It would take 30 years of cultural movement, and the right surrendered all cultural output to the left for over a generation. Good luck taking that back. The real mistake of Nixon and Reagan was the idea that controlling the courts was more important than controlling the culture, that legality was more important than legitimacy. Yet, that mistake continues today.