Group Quotas Are Not In Danger

The recent Supreme Court decisions on affirmative action are unlikely to completely abolish affirmative action (group quotas), as elite opinion on the Right will not stomach the consequences of a strictly meritocratic system.

Editor’s note Conservatives, including the author of the book Amy Wax reviews, Richard Hanania, believe that by changing a few of the relevant civil rights laws, we can defeat affirmative action and return to a meritocratic society. If indeed we could, that would be the death of wokism, since the entire woke project rests on group outcome equality (group quotas). Not so fast, says Wax (and Lincoln before her). We won’t change the laws, she argues, until we first change the public sentiment that is undergirding those laws. Lincoln put it this way: “…public sentiment is everything. With it, nothing can fail; against it, nothing can succeed. Whoever molds public sentiment goes deeper than he who enacts statutes, or pronounces judicial decisions.”

The recent Supreme Court affirmative action decisions mark out the problem. Writes Jesse Merriam, “if Harvard admitted students according to a purely academic index, Harvard would be only 0.76% black.” As it is, with racial preferences, Harvard is more than 15% black.

Less than 1% black, however, is simply unacceptable. Elite opinion, Left and Right, cannot stomach such a low percentage. Merriam says that even those who challenged affirmative action in the Supreme Court cases would accept nothing less than 10% black. “The real fight,” Merriam says, “between the challengers and defenders of affirmative action was whether Harvard would have a 10% or 15% black quota. With challenges like this, affirmative action isn’t in much danger.”

Wax doesn’t know how we might change public sentiment, but she serves us well by reminding us that is naive to think we can change the relevant laws without first changing public sentiment.

This essay was originally published at The American Conservative on December 11, 2023.

The Founders knew that all men are not created equal. They worried over how to reconcile natural inequality with the liberties they cherished in a new nation formed to overthrow hierarchy. Alexis de Tocqueville confirmed their fears. Americans’ love of equality, he wrote, is “ardent, insatiable, incessant, invincible,” and the people’s “principal passion.” Americans, he said, “want equality in liberty, and if they cannot obtain that, they still want equality in slavery.” Tocqueville’s observations proved trenchant. Equality is now our official mania, motto, and obsession, increasingly pursued at the cost of freedoms we once enjoyed. That pursuit lies at the heart of what today is called “wokeness.”

Richard Hanania, a bold and prolific blogger and public intellectual, has written an important and carefully researched book on the phenomenon of wokeness. His main concern is how this ideology emerged and insinuated itself into all aspects of government, business, the media, and the educational system. His central thesis is that civil rights laws, and most importantly the federal Civil Rights Act of 1964 and the doctrines developed under its authority, are the principal source of woke’s ubiquity and strength. A key part of that story is that these laws have not been applied as enacted and intended. Rather, the government and institutions at every level have been complicit in the law’s wanton expansion far beyond the reach of its express language and original meaning. Hanania’s position is that these legal developments fostered woke ideology and paved the way for woke’s control over critical centers of power.  

Although solid and highly informative on the details of the law’s evolution, the book misses the mark on the all-important questions of why the law exceeded its limits, the wokeness train ran away, and no serious effort was made to arrest these trends. Why did conservatives and Republican politicians fail to yell “stop”? Why did they tolerate and at times even support the law’s overreach? Hanania devotes attention to what should be done to counter what he perceives as the civil rights laws’ outsize influence and the woke takeover it encouraged. But because he never adequately explains the source of woke’s power, neither his account of its rise nor his proposed antidotes hit the mark. Philosophers like to say, “It takes a theory to beat a theory.” Hanania offers no countertheory to break woke’s mesmerizing spell over all aspects of society.  

The core precept of wokeness is that all groups are equal and indistinguishable in their talents and potential, ergo equality of group outcomes is to be expected in a fair and unbiased world. That some groups fall behind is the fault of society, and it is incumbent on society to rectify that lag by adopting the necessary policies and interventions. Hanania fails to appreciate the hold of these equalitarian convictions, which are firmly entrenched in society’s main institutions and find support across the political spectrum, and which few dare to challenge openly. He underestimates what is needed to defeat them.  

Hanania begins by providing a useful working definition of the concept of wokeness. Front and center is the axiom that “disparities equal discrimination.” It follows that “some combination of past and present discrimination” is both source and explanation for all racial disparities observed today. The second element is the enforcement of speech restrictions, especially on any challenges to the core precept that racism is the sole cause of present group inequalities. Finally, “a full time bureaucracy” is needed to “enforce correct thought and action.” That bureaucracy is charged with silencing and punishing anyone who dissents from woke dogma. Missing from Hanania’s list is another key component of the woke paradigm, which is what Yascha Mounk in The Identity Trap calls the “identity synthesis.” That is the commitment to dividing all groups and their members into victims and victimizers, oppressed and oppressors, advantaged and disadvantaged. In this universe, whites and white society are the despised culprits and non-white minorities the innocent victims who can do no wrong.

Because Hanania regards the law as the fons et origo of woke, he devotes detailed attention to tracing legal developments and especially the landmark Civil Rights Act of 1964. In the years after the statute’s enactment, an expanding executive bureaucracy and compliant judiciary imposed ever more detailed, sweeping rules and regulations aimed at fixing racial inequality and promoting racial parity in public and private life. Hanania persuasively shows that these developments worked a systematic departure from the original terms of the CRA and from the express understandings of the statute’s drafters and enactors. The actual language employed by the CRA bars actions “because of,” “based on,” and “on the grounds” of race. The drafters intended those words to enshrine a rule of colorblindness that would forbid steps to achieve “equality in fact” by employing race “quotas,” conferring benefits based on racial identity, or adopting other race-conscious measures to “achiev[e] equality between various groups.”

As Hanania shows, these prohibitions were systematically flouted. Among the developments that ran contrary to the enactors’ intentions were the adoption of affirmative action, the creation of liability for the disparate impacts of race-neutral policies, the acceptance of subjectively “hostile environments” and speech-based “harassment” as actionable discrimination, and the growth of diversity, equity and inclusion (DEI) bureaucracies, both public and private, to monitor behavior and engineer the demographics of social and economic life. In pursuit of the goal of racial parity, employers nationwide were forced to subject their workforce to “a detailed process of  identity-based classification and analysis.” Large human resources bureaucracies created to implement the legal rules morphed into self-serving power centers that relentlessly pushed “left wing beliefs about the ubiquity of discrimination and the role in group disparities.”

According to Hanania, the expansion of civil rights laws beyond their authorized bounds not only worked a serious incursion on the liberties of American businesses and citizens, but also promoted a risk-averse, stifling atmosphere that “kill[ed] experimentation at work.” As Hanania sees it, these legal efforts saddled our country “with stagnant institutions that micromanage thoughts, relationships, and personal conduct of hundreds of millions of Americans.” 

Hanania’s account demonstrates that the expansion of legal mandates under the civil rights laws has been going on for decades. The failure of Republicans and conservative leaders to stop or even effectively slow both trends is the most striking and sobering part of Hanania’s story. Hanania describes how the imperative of racial equity became more entrenched, pervasive, and accepted with each administration regardless of the party in power. He takes note of civil rights scholar Shep Melnick’s count of 28 separate expansions of the Civil Rights laws since 1964, including six instances where Congress reversed the Supreme Court’s language-based limits on the statute.

Despite controlling the presidency or Congress for much of this period, Republican lawmakers offered little effective resistance to these developments. The Reagan and Trump administrations took some steps to rein in the civil rights expansion, but their efforts were fitful, piecemeal, and largely ineffective. Reagan’s attorney general Ed Meese, for instance, never succeeded in his push to bar the use of statistical evidence in discrimination suits against federal contractors. Speaker of the House Newt Gingrich’s 1995 proposal to end affirmative action in government employment and contracting was never adopted.

Although Trump managed to enact some key reforms (such as reversing Obama’s mandate for racial balancing in school discipline and strengthening procedural protections for students accused of sexual harassment under Title IX), others were stymied (including a comprehensive “Muslim ban” on travel and immigration and an attempt to use an old “public charge” rule to tighten green card requirements). As a general matter, civil rights rollbacks received lukewarm or mixed support from Republican legislators while encountering ferocious opposition from entrenched, mostly left-leaning “deep state” operatives. The deep state routinely won.

Hanania makes a half-hearted attempt to explain Republican officials’ go-along attitude towards CRA expansions despite their dubious legal foundations and growing evidence of Republican voters’ disgruntlement. He attributes legislative complicity to “elite attitudes” of contempt for public opinion that have become fashionable on both sides of the aisle. He cites “the centralized nature of the media” and the “immaturity of the conservative movement and its grip on the Republican party.” Although not wholly inaccurate, these disjointed observations fail to get to the heart of the matter.  

Hanania misses the most likely reason that the civil rights laws evolved into a push for equal results instead of sticking with their original mandate of outlawing intentional discrimination and enshrining colorblindness. That is that most people, including politicians and voters unhappy with particular CRA intrusions, are both reluctant and intellectually unable to challenge the fundamental, feel-good equalitarian precept: that all groups are equally well-equipped to succeed in all dimensions of American life and, if racism and discrimination are banished, parity will prevail.  

But that is the core axiom of wokism. At the heart of that ideology, as Hanania recognizes, is a single-minded focus on inequality between groups and, especially, an obsession with correcting present disparities between blacks and whites. For the woke, the conviction that a fair, non-discriminatory system will yield equal group outcomes across society, including between different racial and ethnic groups, is an item of faith. Woke’s chief goal of racial equity—that is, similar status for all groups in all dimensions of existence—is central. Hanania’s narrative shows that the decades-long expansion of civil rights laws has the same aim: to achieve racial parity throughout society. Especially as applied to the economy and employment, that project rests on a familiar “central premise,” as stated in a CRA regulation Hanania quotes: “absent discrimination, over time a . . . workforce will, generally, reflect the gender, racial, and ethnic profile of the labor pools from which [an employer] recruits and selects.”  

This is where Hanania’s causal story goes awry. He asserts that the woke takeover can be traced back to legal overreach. A more plausible explanation is that both our legal regime and woke’s hegemony originate in a common source: the equalitarian ideology that regards racial parity as the default state of society and group inequality as the product of injustice. The widespread adoption of this viewpoint helps explain both the relentless march of the CRA’s expansion as well as the remarkable rise and influence of progressive demands for equity. 

What Hanania does not fully confront, and does not emphasize nearly enough, is that many ordinary people who would reject the woke label are discomfited and puzzled by the persistence of racial disparities and would like to see them disappear. Although not fully understanding the consequences of their beliefs, they are inclined to accept that racial inequality is a problem that calls out to be solved and that it is morally incumbent on society to somehow solve it. The “ought implies can” stance is both familiar and tempting: because society must, society can.

However fallacious, that idea’s appeal makes it hard to resist the conclusion that eliminating discrimination and racism by adopting the right social policies can and will achieve parity between blacks and whites. More widely shared than conservatives would like to think, this belief slides inexorably into the woke demand for equal outcomes and the pressure to adopt legal rules and regulations designed to achieve those results.   

Nor does it help matters that decades of elaborate and expensive government programs, policy initiatives, and results-oriented extensions of the CRA have failed to produce the expected social, economic, or occupational parity. Among the black population, violence and crime are rife, educational achievement lags, and families are more fragmented than ever. Black urban neighborhoods are often squalid and disorderly, and segregated housing and schools remain common. That these problems persist despite a decades-long commitment to tackling them makes it ever harder to resist the dogma that society is to blame, that the only fix is to get rid of every last vestige of racism, and that all disparities will disappear once it is banished. The notion that the evil effects of discrimination can be reversed by eliminating discrimination (which I have elsewhere termed “the myth of reverse causation”) is widely accepted. The slim evidence in its support has not undermined its appeal.

The rise and spread of woke ideology, which reached its full flowering after many of the CRA extensions described in this book, could well reflect frustrated expectations and widespread impatience with how little racial equality the civil rights laws have achieved. Hanania repeatedly cites the evidence of voter ambivalence towards color-conscious programs, the spread of DEI mandates, and anti-harassment rules. But he fails to appreciate the difficulties of mounting effective public resistance to these measures and to woke ideology generally in light of the continuing absence of racial equity despite persistent efforts to bring it about. The problem is not just the growing progressive tendency to seize the moral high ground by tarring opponents with the familiar, dreaded accusatory labels—racist, far-right extremist, white supremacist. Rather it is the absence of a coherent, easily understood, widely acceptable alternative to the totalitarian logic of wokeness, which inevitably devolves into the demand to achieve racial equality by any means necessary.

Hanania’s chief recommendation is to reform civil rights law and its emanations by returning to the statute’s original meaning. We must outlaw race-conscious action, enshrine colorblindness as a universal principle, and reestablish a meritocracy that is indifferent to race or identity. That requires getting rid of affirmative action both public and private, repealing liability for disparate impact, and dismantling color-conscious DEI initiatives and the bloated bureaucracies in charge of them. 

Given the civil rights statutes’ language and history, it is hard to quarrel with these recommendations, and Hanania draws on surveys to show that many voters would welcome these reforms. But, as already noted, this support is fragile and vulnerable to left-wing pressure that taps into equalitarian priorities. Hanania never confronts how the public would deal with the inevitable results on the ground from the rollbacks he recommends. The cessation of the relentless pressure to achieve racial parity in jobs, wealth, influence, incarceration, and other aspects of social and economic life will almost certainly widen the considerable racial inequalities that continue to exist. Indeed, as Charles Murray has shown in Facing Reality, reverting to the original meaning of the civil rights laws, which means returning to a colorblind meritocracy, will drastically reduce and in some cases virtually eliminate the presence of some minorities, and especially blacks, in many of society’s most demanding, rewarding, and influential positions.

Hanania doesn’t openly quarrel with any of this. He takes as given that there are real-world tradeoffs between selecting employees for ability and achieving workplace diversity. He several times concedes that pronounced group differences will make parity impossible in the colorblind meritocratic system that he envisions. But he never really develops an account of why these disparities exist and persist. He doesn’t explain why people should expect and accept those disparities rather than trying to change them through law or policy. Likewise, he clearly rejects as fallacious woke’s fundamental premise that racism and discrimination are at the root of all group inequalities, but he never provides an answer to the question that obviously occurs to inquiring minds: If racism and discrimination are not responsible for racial inequalities, then what is?  

For Hanania’s project to succeed, he needs to advance a countertheory to beat the core theory behind wokeness, which is that it is racism, structural and otherwise, that prevents all groups from being equally successful. He must loosen the grip of the equalitarian mindset that is the chief engine behind woke hegemony. He must offer an alternative explanation for the persistence of group inequalities that is capable of persuading the public that the absence of racial parity is an ineluctable part of social life.

That Hanania seems unwilling or unprepared to do this is a signal weakness of his anti-woke project. He is doubtless aware of woke detractors who assert that the only effective antidote to woke is some form of race realism. A “soft” form of realism, such as that advanced by scholars Thomas Sowell and Wilfred Reilly, attributes persistent racial disparities chiefly to differences in culture and patterns of behavior as well as to various demographic variables (like age structure). Other commentators, like Nathan Cofnas and Bo Winegard, embrace a “hard” realism that looks to evidence from genomics and other sources that some racial differences, including in cognitive ability, are at least partly innate.  Some hard realists argue that acknowledging innate differences is the only effective way to defeat unceasing demands to close racial gaps.

Hanania steers well clear of these ideas. Although gingerly gesturing towards versions of soft realism, he goes nowhere near hard realism or the topic of innate differences. This is understandable. As Cofnas notes, “Wokism is protected by a taboo on recognizing the genetic basis of race differences.” That taboo is today aggressively enforced across the political spectrum.  

Indeed, selling any form of these ideas in the current climate, even to right-of-center audiences, is an uphill battle. Conservatives who purport to deplore wokeness are nonetheless reluctant openly to discuss alternative theories of racial gaps, including the “soft” culturalist versions, as applied to sensitive areas such as intellectual ability, crime, and family breakdown. There are many precincts of polite society, including the education system at all levels, where disclosing unflattering demographic facts about racial differences is frowned upon and any revelations must be accompanied by a ritualistic acknowledgment of and mea culpa for their racist roots. The mainstream media is likewise averse to realist arguments, which it routinely labels racist and extreme. 

These vigilantly enforced norms ensure that a surprising number of supposedly educated people are oblivious to the basic racial patterns of crime, academic achievement, and out-of-wedlock childbearing, and become incredulous, uncomfortable, or offended when confronted with them. Most acquiesce under even slight pressure in the equalitarian notion that all groups are the same in their potential and that parity will reign in an ideal colorblind world. If versions of soft realism are a tough sell, the harder realism—the possibility that innate factors partly account for racial differences in behavior or traits—hits a brick wall. People are told repeatedly that this is untrue, that empirical evidence for this possibility is fallacious, pernicious, and untrustworthy “pseudo-science,” and that no respectable person would adopt these views. Openly embracing hard realism invites opprobrium, cancellation, and banishment from respectable society, which few have the desire or gumption to endure.

By dodging any serious engagement with soft or hard realism, Hanania offers no theory to beat the equalitarian theory that has so many in its thrall. Without taking on the delusions about group equality that sustain wokism, Hanania has little hope of vanquishing it. Conservative commentator Steve Sailer puts the point bluntly: “If you ban ‘Bell Curve’ type explanations for group differences (both Nature and Nurture matter), then there really aren’t many explanations for group differences left besides sheer [Ibram] Kendi-ism: white people are at fault and THEY MUST PAY.”   

Hanania’s ploy for avoiding that conclusion is to capitalize on the discontents of the anti-woke silent majority. Unfortunately, the opposition to woke is fragile because people and politicians are reluctant to confront its premises or to analyze the inevitable consequences of abolishing it. What this means is that even if, as the author has it, the wanton extension of the civil rights laws has played an important role in fomenting the woke takeover, changing the law will likely prove insufficient to reverse the damage.

Hanania underestimates the profound cultural transformation that has coincided with these legal changes and the deep infiltration of woke attitudes and practices as guiding principles in institutions at all levels. Color-consciousness, the cult of diversity, the relentless emphasis on personal identity, and the imperative for racial balancing are now ubiquitous in the daily life of schools, businesses, the military, and the media. Within our major institutions, even the mildest questioning of these priorities is routinely met with stony silence, hostility, and exclusion from organizational influence. The law’s ability to reach in and extirpate these practices, even if illegal or made illegal, is minimal at best.    

In hoping to capitalize on popular opposition, Hanania is also overly complacent towards looming generational differences. He neglects a crucial source of woke’s present stranglehold:  the education system. From K-12 through college, graduate, and professional levels, it now operates as an unrelenting indoctrination machine that conscripts impressionable young people into far-left, progressive ideas on race, gender, victimology, the sins of white society, and the evils of Western civilization. Hanania says too little about woke’s pervasive influence on education, its pernicious effects, and possible strategies for reform.

Although there are limits to what legal change can accomplish in this arena, there are nonetheless some steps worth taking. Title VI of the Civil Rights Act, which forbids recipients of federal funds from discriminating on the basis of race, sex, and other categories, could be extended to impose additional requirements on educational institutions, including the protection of the free speech and expressive rights of university faculty and students, the abolition of DEI offices and officers, and the elimination of identity-based criteria for admissions, hiring, and programmatic funding. Congress could add robust mechanisms for private and public enforcement and provide incentives for dissenters to use them.  

Beyond changing the law (which would require enormous political determination), education reform will still be a tough sell. The parental rights movement, which initially gained some influence over local school boards, has never been more than sporadic and feeble, and it lost significant ground in recent midterm elections. The mainstream media relentlessly paints parents and parental groups such as Moms for Liberty, which seek greater control over what their children are taught, as dangerous “extremists,” censors, and hate-filled oppressors of sexual minorities. Hanania offers no strategy to counter these shameless propaganda ploys or to resist the siren calls of diversity, equity, and inclusion that provide cover for the one-sided, politically infused instruction that dominates K-12 schools.  

Legal reform will do little to fight the rhetorical war, the culture war, and the war of ideas in which woke factions have made steady gains and are still consolidating their power. Reversing those victories will require capturing hearts and minds by promoting alternative ideas that tell people what they don’t want to hear and have been taught to reject out of hand. None of that appears to be happening on anywhere near the scale needed. It’s unclear whether the author is willing to join the fray let alone go to the ramparts to fight these battles. For Hanania, the solution to wokeness is both obvious (change the law) and within reach (ride the people’s rebellion). His optimism is refreshing, but this book doesn’t justify it.  For now, pessimism is in order.

Amy L. Wax is the Robert Mundheim Professor of Law at the University of Pennsylvania Law School.