Thoughts on Trump Ending Affirmative Action in Contracting

It is possible to have a positive impact on policy

I’ve recently done a few appearances on Destiny’s livestream where he interrogated me on voting Republican. Honestly, when supporting a party is only a 60/40 decision for you, it’s hard to debate someone who is completely convinced in the other direction. When I wrote about why I was voting for Trump before the election, I had to tell the truth about the things that make me uncomfortable about the conservative movement, and its leader in particular.

But yesterday I realized that there’s an obvious answer to the question of why I should be a Republican. They’re the only ones who might listen to me! My vote is insignificant, and won’t determine an election. The only way I can hope to have influence is through my ideas. So I could start identifying with the left today and encourage everyone to vote Democrat, and my influence over policy will slide towards zero. If Destiny thinks I have sensible ideas, he himself should want me to be in a position to make a difference.

All of that was made clear to me when Trump last night repealed and replaced Executive Order 11246. This is a big deal. I wrote about how this little known EO changed American society in The Origins of Woke:

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...

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. Today, about a quarter of the American workforce is employed by a government contractor. It is important to note that, pursuant to EO 11478 of 1969, affirmative action also exists within the federal government itself, which employs another 2 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.” If a contractor falls short in any particular area, it must take “practical steps” to make up for its deficiency.

One of the most sinister aspects of all this is that it forced managers at businesses who might want nothing to do with leftist ideas to become foot soldiers in the project of identity-based governance.

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. 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…

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.

In my chapter on policy suggestions, I wrote that repealing EO 11246 was low-hanging fruit, but a more aggressive approach would involve banning government contractors from engaging in DEI policies.

I promoted my ideas to conservatives, including on Vivek’s podcast in early 2023, not long after telling him about EO 11246 for the first time. As Vox noted, he soon started promising to repeal the order on his first day in office if elected. Here’s a clip of me suggesting to him that a Republican president go further than that and use a new EO to ban DEI among contractors.

With Trump, it took two days. But we’ve gotten to the same place. Yesterday, the president signed a new executive order with the title “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” Section 3 repeals Executive Order 11246, giving contractors only 90 days before they must stop acting in accordance with previous rules. It then lays out new requirements.

(ii) The Office of Federal Contract Compliance Programs within the Department of Labor shall immediately cease:

(A) Promoting “diversity”;

(B) Holding Federal contractors and subcontractors responsible for taking “affirmative action”; and

(C) Allowing or encouraging Federal contractors and subcontractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin.

As I suggested Trump do, it then goes on to mandate color blindness.

(iii) In accordance with Executive Order 13279 of December 12, 2002 (Equal Protection of the Laws for Faith-Based and Community Organizations), the employment, procurement, and contracting practices of Federal contractors and subcontractors shall not consider race, color, sex, sexual preference, religion, or national origin in ways that violate the Nation's civil rights laws.

(iv) The head of each agency shall include in every contract or grant award:

(A) A term requiring the contractual counterparty or grant recipient to agree that its compliance in all respects with all applicable Federal anti-discrimination laws is material to the government's payment decisions for purposes of section 3729(b)(4) of title 31, United States Code; and

(B) A term requiring such counterparty or recipient to certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.

(c) The Director of the Office of Management and Budget (OMB), with the assistance of the Attorney General as requested, shall:

(i) Review and revise, as appropriate, all Government-wide processes, directives, and guidance;

(ii) Excise references to DEI and DEIA principles, under whatever name they may appear, from Federal acquisition, contracting, grants, and financial assistance procedures to streamline those procedures, improve speed and efficiency, lower costs, and comply with civil-rights laws; and

(iii) Terminate all “diversity,” “equity,” “equitable decision-making,” “equitable deployment of financial and technical assistance,” “advancing equity,” and like mandates, requirements, programs, or activities, as appropriate.

Section 4 directs agencies to start looking for instances of violations of non-discrimination laws, as interpreted by the Trump administration of course, among private firms, non-profits, colleges and universities, and accreditation agencies.

It’s easy to say that a Trump administration would have done this even if I had never written my book. Maybe that’s true. The second administration is more serious about policy across the board. In 2016, Trump took over the GOP practically out of nowhere, nobody thought he would win the general election, and conservatives weren’t really prepared to do much of anything other than give him judges to confirm. The right has since then spent the last eight years thinking about how to make full use of the executive branch for when a Republican returns back to office.

But one thing this whole experience has taught me is that knowledge is fragmented and so much of politics, like life more generally, is about drawing attention. The Origins of Woke relies on the work of several scholars who are lesser known and have been hammering on some of the points I made in the book for decades, including Gail Heriot and Eugene Volokh, and many attorneys like Dan Morenoff and Alison Somin have done important work far from the public spotlight. And I think I probably originally learned about disparate impact from Steve Sailer. So there’s a kind of pipeline here, which in this case went Heriot et al-Hanania-Vivek-Trumpverse, from the most scholarly towards the most famous and attention grabbing. It’s been instructive to play a part in this process. One maybe can place Rufo in between Vivek and Trumpverse, or as part of an independent branch between Hanania and Trumpverse.

It’s possible no single person actually made the marginal difference here. If Trump hadn’t won the election, DeSantis certainly would’ve gone just as far. Vivek would have too, and even Nikki Haley opened her campaign with a video talking about wokeness as a threat to America, although in her case we can have doubts as to whether she would have taken decisive action on the issue. And maybe if Rufo and I didn’t exist, someone else would have filled our niches.

Yet for a long time, conservatives were completely asleep on the question of federal contracting. Consider that Trump’s first term head of the Office of Federal Contract Compliance Programs was on a Federalist Society podcast in early 2023 where he bragged about expanding affirmative action and even bringing “intersectionality” into the analysis. This was well after Trump lost the 2020 election, conservatives started realizing that they would need a new approach to effect change, and DeSantis had begun selling himself as the policy guy who could actually provide real victories. If I didn’t bring this issue to the attention of conservatives, who would have?

Note also that the original Trump EO banning diversity training in the first term was a direct result of the president seeing Rufo talk about the topic on Tucker. It’s not like Tucker had another guest lined up who would have said the exact same thing. If Rufo hadn’t been doing TV appearances, Tucker probably would’ve invited in his place a guy who claims to have made love to Bigfoot, or whatever other nonsense grabbed his attention that particular week. Trump’s DEI training ban was revoked after Biden came into office, but it set the stage for the executive orders we’ve seen over the last few days.

All of this makes me think that politicians are in a sense less important than intellectuals and activists. It’s actually difficult for me to imagine all this happening without me or Rufo, but easy to imagine it happening without Trump.

As I discuss in the introduction to The Origins of Woke, I started thinking about the relationship between wokeness and civil rights law around 2011 while I was in law school. I then spent about a decade trying to convince people how important this topic was. Finally, I just wrote about it myself, and things started to change.

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…

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.

Another lesson people can potentially draw from this experience is that it is possible to influence policy even if you’re starting out without much in the way of fame, connections, or money. Furthermore, my messaging hasn’t exactly been optimized to win over Republicans. Yet by making a compelling case in emphasizing the issue and bringing it to public attention, I was able to contribute towards changing the conversation on civil rights law. For anyone else who wants to influence policy, here’s a demonstration that it can be done.

Timing also matters. This could be the peak of my influence, at least in terms of directly changing laws and regulations. I was pushing anti-wokeness at a time when conservatives were obsessed with the topic and looking for answers. Now, I want to convince them to be pro-immigration, less nationalistic, and overall act like higher human capital, where the trends are in the opposite direction, so maybe nobody will listen to me anymore.

Whatever the case may be, Trump’s executive orders on diversity serve as a nice bookend to my work on wokeness. There are still other suggestions in my book, particularly eliminating disparate impact, that are yet to be implemented, but with Trump in office and conservatives in control of the courts I think it’s only a matter of time. Most political struggles end in failure or some kind of ambiguous outcome. But sometimes you advocate for an idea, and it just wins. I wanted conservatives to go to war against wokeness as a matter of policy, and the outcome has surpassed my most optimistic hopes. It’s a very satisfying feeling.