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Speech to the Yale Federalist Society
Reasons to be optimistic about the future of civil rights law
On April 3, I gave a talk at the Yale Federalist Society about my forthcoming book, The Origins of Woke (pre-order here).
As I told the audience, this was an ideal location to discuss civil rights law. Many of the students I talked to will soon be clerking for federal judges. The clerks are the ones who basically do the research and write the opinions. Others will become legislators or go on to staff Republican administrations. If there’s anyone in the world I need to reach, it’s the Yale Federalist Society, and I found them very receptive to the message. If you’re one of those liberals who writes articles about dangerous right-wing strands of thought, you should probably be paying attention to the fact that the most important conservatives in the country are listening to me on civil rights.
I wrote a speech beforehand, which I’m publishing here. This isn’t a verbatim transcript, but I used it to sketch out my thoughts, and so it gives you the basic idea of what I said.
I’m glad to be here talking about woke institutions and civil rights law. I have to say, I was ahead of the curve on this issue. It’s something I’ve been thinking about since I was in law school. I graduated from the University of Chicago in 2013, and my 1L summer I worked for an organization called the Center for Individual Rights, which argued the Gratz and Grutter cases.
And I learned a lot while working there about how government forces institutions to be conscious of race and sex. So, for the last decade, from 2011 on, as I was doing other things in life, I would talk to people about all these things government did to discriminate against whites and men, remove standards, get rid of standardized tests, etc. And one reason I was so passionate about this is that a lot of the fixes did not require legislation. Executive orders and judicial decisions are enough. But the Trump administration came and went, the Supreme Court got more conservative, and still nobody was listening to me.
So finally I started writing on this topic myself, and now that I’m writing for the public instead of just trying to convince people one-on-one, I’m getting a better return on my efforts. Another reason what I’ve been arguing has caught on is that we saw the transformation in how institutions talk about race- and sex-related issues over the last decade. A lot of people are looking for answers. Who are these diversity bureaucrats saying all these crazy things? How did we end up with so many of them and where did they come from? And all this stuff that was more latent, of interest to legal nerds only in 2011, became much more part of the culture.
This is why I’m glad to be here. It’s a sign that my work is getting attention, but also that it’s reaching the right people. There’s probably no place where my talk here today can have a greater impact.
So what are the basic arguments? Think of how we think about say payroll taxes. Every corporation in the country takes out a certain amount of money from workers’ paychecks for Social Security and Medicare. We don’t sit there and say, hey, what’s going on here? Why does every employer in the country do the exact same thing? We understand that this is because there is this thing called law, and it requires citizens to behave in a certain way. It’s the same thing when it comes to identity issues.
If you employ too many whites, or too many men, or you set standards that are too high or in some cases too objective, you can be legally penalized. Perhaps the most important policy in this area, and this isn’t even from the Civil Rights Act, is Executive Order 11246, which says that if you are a federal contractor, or a subcontractor, of a certain amount, you have to practice affirmative action. What does that mean? Well, the Department of Labor has very specific regulations here. They say for every institution you have, divide your employees by race and sex, and see how many members of each race and sex are in each job category. If you fall short, you’ll have to set “goals and timetables” to correct for this. Not quotas! Everyone agrees that’s illegal. But goals and timetables, as a condition for doing business with the government. That’s about 20 percent of the workforce, so you can see right there alone government is being heavy handed and just directly requiring a focus on equity. And if you look at the regulations, it has stuff like, well, reach out to ethnic organizations. This is part of the EEOC too, and what it recommends, involves getting the workforce to think about itself in terms of racial categories, and being able to assert group rights on that basis.
Then you have the disparate impact standard, already mentioned. Anything that leads to whites or men being hired or promoted or not fired at a higher rate than non-whites or women can potentially be the subject of a lawsuit. The employer can have an affirmative defense, but the presumption is that they’re discriminating. So what has a disparate impact? Literally everything. Paper and pencil tests, for example. EEOC has gone after criminal background checks, word-of-mouth hiring, basically whatever you can think of. Civil rights lawyers of course go after IQ tests for disparate impact, but not college degrees, and you can probably guess why.
Finally, let’s talk a bit about free speech and civil rights law. The idea of free speech on college campuses gets a lot of attention. But what’s weird about this is that we already don’t have free speech in most major workplaces. If you create an environment that is deemed hostile to women or minorities, you can be sued and out of a lot of money. And not just money, because often there will be an injunction, a requirement that you change whatever it was you were doing before. And so the EEOC, they put out guidance, and they say things like no insensitive jokes, if in doubt, keep it out of the workplace. If you guys remember, there was this case a few years ago where this Google engineer said there might be differences between men and women that explain career choices, and he was fired. He tried to file a complaint that he was being discriminated against based on political ideology, which is illegal in California, but the Labor Relations Board said, no, he was creating a hostile workplace for women. He was violating civil rights law, he couldn’t invoke civil rights law. If you don’t believe that law makes a big difference here, there was something called the Civil Rights Act of 1991, which created punitive damages for civil rights violations, and you can see the number of complaints and lawsuits based on gender discrimination goes through the roof in its aftermath.
All of this is not a small thing. In the last two decades, 99% of Fortune 500 companies have made a payout to a plaintiff in a harassment suit.
So many of you are going to work as government officials, clerks, and judges. The most important thing I think that can come out of the judiciary is getting rid of the disparate impact standard, overruling Griggs. It was such a badly decided case, and if you look at the original intent behind the Civil Rights Act, the bill was written specifically to avoid an outcome like this. For those working in a future Republican administration, the first thing you can do on day one is get rid of affirmative action in contracting, in addition to affirmative action in the federal workforce. There is no statutory basis for these things.
At all levels of government though, the opportunities are endless. Senator Bob Dole was able to commission a report from the Congressional Research Service in 1995 on federal programs that used racial or ethnic standards. It turned out there were 160 at the time. Imagine in 2023 how many there are! In the mid-1990s, institutions had some kind of shame about these things, they at least felt a need to feign color-blindness. It’s everywhere, and there’s a long list of things to be done.
Let me close with a few words on SFFA v. Harvard. There’s been a tendency in Supreme Court decisions for halfway measures on these things to be counterproductive and worse than doing nothing. So in Bakke, the question was whether you could have quotas, and thanks to Justice Powell, the state of the law became no quotas, no rigid standards, no points system, but you can consider diversity. What that means is that a quota is honest and you can just set that and then move on and continue as before. When you have this kind of charade around “holistic admissions” you have to change everything about your institution, you have to hire diversity bureaucrats, etc. Same thing with disparate impact, if government could just mandate hiring goals, it would be one thing. Instead, the government forces you to sort of rig your hiring system and that leads to much more extensive changes.
Now what is concerning about SFFA is that the debate goes like this. The defendants in these cases say we need to consider race to have diversity. And then the conservative justices say, well, you can just do something else, like give preferences based on socioeconomic status, or whatever. And then Justice Sotomayor, and the lawyers for Harvard and UNC, they go yes, but our data shows that this would reduce the average SAT score. So basically, we could end up with a decision saying you can’t directly consider race, but you can have a goal of diversity that you seek in other ways.
If that happens, you could imagine the universities becoming more political, more biased in their admissions and hiring. These institutions become less meritocratic. They’ll say well we want diversity, so we’re going to rely on soft or subjective criteria, whatever gets us our required number of black or Hispanic students. You could imagine saying people have to show a commitment to social justice instead of a commitment to diversity.
Now, I would argue that this is still prohibited under Title VI and the Equal Protection Clause. The government, or government-funded institutions, are trying to achieve some kind of balance, which involves discriminating against people. Who cares if they do it when you submit the application, or when they send out recruitment letters? What they’re fundamentally doing is the same. So I think the Court should make clear, and maybe this can be in a future case if not this one, that indirectly trying to achieve racial balance is forbidden. That’s what I hope to see, but either way, it’s good that people are thinking about these issues more, and the decision this summer won’t be the end of the debate.
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