The summer of 2020 was a watershed in American life. After George Floyd’s death in police custody and the ensuing season of rioting, major institutions—from federal agencies to Fortune 100 companies—hastily pledged themselves to the narrative of critical race theory, which holds that America is a fundamentally racist nation and that public and private entities should practice “antiracist discrimination” to equalize group outcomes—a state of affairs that its advocates call “racial equity.”
This ideology stands in direct opposition to the principles of the Constitution, which provides for color-blind equality under law. Yet many American institutions quickly adopted “diversity, equity, and inclusion” policies, such as discriminatory hiring practices and racially segregated employee groups, that are, correctly interpreted, illegal.
We have convened a symposium with six of the nation’s leading domestic-policy experts and asked them to consider how future policymakers might restore the principle of color-blind equality in government. Their recommendations are not comprehensive. But they would start the process—already begun, perhaps, by the Supreme Court’s ruling that race-based college admissions policies are unconstitutional—of restraining the forces of left-wing racialism and moving the country back toward a regime of individual merit and fair treatment under law.
Defund the Left
The fight against a woke and weaponized federal government has begun, though it remains in its early stages. Wokeness in the federal government is best understood as a method of decision-making by activist bureaucrats. They determine how taxpayer money gets spent, who benefits, who loses, and which social-justice cause gets prioritized in government programming. Dismantling their taxpayer-funded supply lines is a critical element in defeating their efforts.
How to do this? For starters, Congress should continue to reduce nondefense discretionary spending and budget authority to pre-Covid levels—not just to curb inflation and bend the curve of the national debt but to reduce the power of the federal agencies and departments that have pursued agendas that stoke racial division.
A key component in the next budget fight should be ending competitive grant programs, most of which fund far-left organizations that use public money to advance their causes. The Appropriations Committee should turn off the competitive grant spigot altogether, or, at a minimum, include legislative and limitation riders that prohibit such funding from promoting divisive racialist theories.
The Rules Committee, meantime, should adopt new standards as part of the budget and appropriations process to forbid floor amendments that fund programs, agencies, or nongovernmental entities practicing diversity, equity, and inclusion (DEI). In tandem, lawmakers should consider more aggressive use of the Holman Rule, which lets House members cut specific programs and fire specific employees. This tool can be deployed to defund DEI departments and hold activist bureaucrats accountable to Congress.
Lastly, every House committee chairman should hold hearings that scrutinize the woke bureaucracies under their respective purviews. These congressional efforts will help build a public case against DEI and lay the groundwork for executive actions in a new administration.
Mobilize the Department of Justice Against Racialist Discrimination
An equality-friendly administration will need to prioritize its options for reversing the spread of racialist ideology across American institutions. Two initiatives should head the list.
First, the Department of Justice (DOJ) and other enforcement agencies should once again take seriously their obligation to ensure that our public and private institutions comply with Title VI of the Civil Rights Act and cease racial discrimination—including so-called antiracist discrimination based on critical race theory, which rewards or punishes individuals according to their racial identity.
To this end, the next administration should swiftly instruct all agencies to initiate investigations nationwide against entities that discriminate based on race and pursue cutting off federal funding for institutions that refuse to comply. Targets should include schools and universities and local and state governments. The Equal Employment Opportunity Commission should investigate corporations. The DOJ and EEOC should stand ready to follow through with litigation.
In education, this would mean probing many of the large school systems, including those in San Francisco, Boston, New York, and Northern Virginia, that have altered admissions policies to reduce the number of Asian Americans in magnet schools. Additionally, it would mean investigating many universities for discriminatory admissions policies (which the Supreme Court recently deemed unconstitutional) and racially segregated scholarships. University of Michigan professor emeritus Mark Perry has identified hundreds of these programs; all should be shut down.
Second, in partnership with the Securities and Exchange Commission and the Federal Trade Commission, the DOJ should investigate the three largest passive-investment firms—BlackRock, Vanguard, and State Street—for antitrust violations. These firms have aggressively promoted environmental, social, and governance (ESG) initiatives, which often encourage discriminatory racial quotas or segregated employee groups. Federal investigators should look for collusion in these firms’ mutual participation in ESG activist initiatives and examine their lockstep adoption and advancement of parallel ESG goals.
As part of this investigation, the agencies should question the Clayton Antitrust Act’s impact on these giant firms’ joint control over vast swaths of the economy. Two of the “Big Three” are publicly traded—and the two largest owners of each are the other two, leaving the firms in apparent control of each other. The Big Three, jointly, are the largest shareholders in almost the entire S&P 500 stock-market index. They appear to hold joint control of 14 of America’s 15 largest banks. If they are in violation of the Clayton Act, the government could force them to divest themselves from one another and bar them from colluding to promote adoption of discriminatory ESG policies. Good antitrust policy would be good civil rights policy.
These two initiatives would represent a starting point for reestablishing the government’s commitment to equality for all.
Force Open Debate on Campus
Higher education is in crisis. Students and faculty are uncomfortable speaking their minds, lest they find themselves canceled; tuition costs are skyrocketing, far in excess of inflation; taxpayers are asking why they’re paying for radical indoctrination.
This crisis is the result of an exploding university bureaucracy that subverts faculty governance in favor of an illiberal identitarianism. What began as administrative bloat has become a full-blown commissariat that stifles intellectual diversity, undermines equal opportunity, and excludes dissenting voices. The average four-year university now has more DEI officials than history professors. DEI offices have broadened the meaning of terms like “harassment” and “discrimination” not to promote a welcoming campus environment but to enforce progressive ideology.
How do we fix this mess? Appeals for internal reform aren’t enough. The problem necessitates external controls from federal agencies, civil rights regulators, and congressional oversight, tied to federal funding.
Fortunately, Congress has already given the Department of Education (DOE) some tools to address these issues. The next administration should instruct the department to compel institutions to certify their compliance with federal requirements on the protection of student speech and association rights and with Supreme Court rulings that outlaw loyalty oaths. Just as all recipients of federal higher-education funds must certify compliance on everything from accounting standards to antidiscrimination practices, conservatives can mandate that they discontinue programs that undermine free speech and due process, as well as those that constitute compelled speech in the form of diversity statements.
Next, the Office of Civil Rights (OCR) should investigate any institution that admits to engaging in “systemic” or “structural” racism, as was claimed in so many self-flagellating statements three summers ago. In addition, to ensure that colleges and universities don’t resist the Supreme Court’s recent ruling that bans racial preferences in admissions, the OCR should require them to show that their admissions processes are indeed color-blind—whether by disclosing GPA and standardized test data, or by another method that prevents racial discrimination by proxy.
Finally, the DOE must overhaul accreditation metrics to focus on fraud prevention and academic rigor and must remove accreditation monopolies, such as the one that the American Bar Association enjoys over law schools, when institutions abandon (as the ABA has) their mission of neutral, merit-based judgment.
There’s still a long way to go before higher education returns to its mission of seeking truth, but the next Department of Education has a vital role to play in advancing that process.
Roll Back Racial Classifications
In 1977, the federal government issued Statistical Directive No. 15, establishing America’s official racial and ethnic classifications: black, white, Hispanic, Asian, and Native American. The purpose was to create uniform classifications, so that data for endeavors like civil rights enforcement and educational achievement could be shared and compared across government agencies. Nevertheless, the classifications quickly spread through American law and society and are now used for everything from college admissions to scientific research.
The problem: Directive 15 classifications are arbitrary and inconsistent, both in how they are defined and how they are enforced. The government developed its classifications through a combination of amateur sociology, interest-group lobbying, incompetence, inertia, and happenstance. The classifications never made much sense beyond the historical black–white divide. Now, given the country’s dramatic demographic changes since 1977, they border on incoherence. It’s time to reconsider them.
First, the next administration should review every instance in which the government uses, or requires private parties to use, racial classifications. These identity-group categories are inherently illiberal and divisive. Consistent with Supreme Court precedent, the government should get out of the racial-classification business entirely, unless a “compelling interest” exists for using such classifications.
Second, the administration should abolish the regulations that force biomedical researchers to classify their subjects and report data based on the Directive 15 classifications. These classifications have no plausible scientific justification; they absorb resources better spent on scientific advances; and they have stunted the development of therapies based on genetics.
Third, the next administration should reverse the Biden administration’s plans to turn the Hispanic ethnic classification into a racial one and to add new Middle Eastern and North African classifications. If implemented, both proposals would make our already-incoherent, arbitrary classification system even worse.
Fourth, to the extent that racial classifications do serve a compelling government interest, their use should be narrowly tailored to that purpose. One model to look at is the FBI’s hate-crime statistics. The agency tabulates such crimes against 29 identifiable groups, among them Mormons and gender-nonconforming people.
Finally, to the extent that the Directive 15 classifications continue to be used, it makes sense, in many instances, to break up the broad, crude classifications into ethnic and national-origin subcategories. The “white” classification, for example, includes people with descent anywhere from Iceland to Yemen. “Asian” includes Bangladeshis and Filipinos. Limiting the data to the broad classifications, rather than digging deeper into their constituent parts, can obscure more than it illuminates.
Balance the Federal Workforce—Intellectually
Some argue that civil rights laws can protect Americans from woke discrimination. That will not happen without significantly more viewpoint diversity in the federal bureaucracy. The federal workforce leans well to the left. Democrats outnumber Republicans about two-to-one. Headquarters employees live in an even more liberal environment: in Washington, D.C., Joe Biden took 93 percent of the vote.
This is especially true in civil rights agencies. They naturally appeal to progressive activists who, once hired, systematically hire like-minded colleagues. During President Obama’s first term, one DOJ Civil Rights Division (CRD) section almost exclusively hired left-wing activists into career positions.
This imbalance makes evenhanded enforcement of civil rights protections challenging. The woke employees who dominate the bureaucracy have no interest in combating woke discrimination.
For example, a DOJ investigation found that Yale University was discriminating against Asian and Caucasian applicants. Trump administration officials wanted to sue, but CRD career staff refused to participate in the litigation. The DOJ could bring charges only by using political appointees and detailing staff from other divisions. Career staff then dropped the case when President Biden took office.
Agencies have few political appointees; they rely on career employees for routine enforcement. Progressive domination of the career bureaucracy makes systematically enforcing protections against woke discrimination impossible.
The only solution is to increase intellectual diversity in the federal bureaucracy. Instead of focusing diversity initiatives on race or other protected characteristics, federal agencies should seek an intellectually balanced workforce. To achieve this, they should actively try to hire career employees whose worldviews differ from those of current staff.
In some departments, this might mean hiring more progressive employees. But in most, including the civil rights agencies, fostering intellectual diversity would mean recruiting and hiring more moderates and conservatives.
This can be done in several ways. The agencies could recruit new career staff from public-interest law firms like the Pacific Legal Foundation, Alliance Defending Freedom, and the Center for Individual Rights, or from red-state attorneys general offices. Similarly, they could proactively recruit graduates of conservative-leaning schools.
Federal agencies don’t need a majority of their workforce to be conservative. They do need a critical mass of career employees who will enforce laws that activists on either side might oppose.
American society contains an enormous range of views. To a large extent, the career federal workforce—especially in civil rights agencies—does not. Until that changes, civil rights enforcement will not protect all Americans from discrimination.
End Minority Contracting
The practice of favoring minority-owned firms in government contracts, though it does not get the headlines of affirmative-action plans in schools or workplaces, may have an even bigger impact. (See “Welcome to the World of Minority Contracting,” Spring 2023.)
Federal, state, and local governments use “set asides” and no-bid deals to ensure that anywhere from 5 percent to 30 percent of their contracts go to minority businesses. Since nearly one-tenth of the American economy runs through government contracts, the consequences of these programs are significant. However, instead of righting historical wrongs, minority contracting has produced corruption and fraud, worsened racial tensions, and cost taxpayers billions of dollars.
We have lots of evidence that these programs encourage fraud. A 2016 Department of Transportation presentation stated that more than one-third of its contracting-fraud cases involved minority contracting. Whether it’s construction at Chicago O’Hare airport, snow-removal deals in Atlanta, or casino projects in New York, minority-owned front companies often take a small cut and pass the work on to a white contractor, making a mockery of attempts to help the truly disadvantaged.
The result is significantly higher costs for taxpayers. Economist Justin Marion examined contracts on California highway projects before and after state voters banned racial preferences. Costs on the California projects dropped 5.6 percent compared with federally funded projects in which racial preferences remained in place. Studies of minority contracting show little or no positive effects on minority entrepreneurship.
How are these programs justified? In two cases, the Supreme Court said that governments could use racial contracting preferences only to remedy actual government discrimination. Instead of restraining such efforts, however, these cases spawned an industry for bogus “disparity studies” that legitimate them.
The solution is simple: Congress should end minority-contracting programs and ban the consideration of race (or sex) in all business decisions. As government continues to grow, Americans of all races don’t want to spare ever more funds for ever worse service. They don’t want their infrastructure projects sabotaged by costly requirements about the race of their contractors. And they don’t want the government to enrich a small group of politically connected businesses that somehow get to claim the mantle of discrimination.
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