The Law that Banned Everything

https://richardhanania.substack.com/...everything?s=r

The Law that Banned Everything

Wokeness as arbitrary government power, and fixing it through policy

Richard Hanania
Apr 11

This week on the CSPI podcast, I talked to Gail Heriot, a law professor at the University of San Diego and a member of the US Commission on Civil Rights. Her past jobs include civil rights counsel to the US Senate Committee on the Judiciary and Associate Dean for Academic Affairs at George Mason University Law School.

Our discussion focuses mainly on two papers she’s written in recent years:

The Roots of Wokeness: Title VII Damage Remedies as Potential Drivers of Attitudes Toward Identity Politics and Free Expression (2022)

Title VII Disparate Impact Liability Makes Almost Everything Presumptively Illegal (2020)

A theme of my writing on these issues has been that there is not enough discourse between the policy world and the intellectual world on topics related to wokeness. Many are angry about what they see happening, while few have thought carefully enough about what policy can accomplish. Gail is part of a small minority of people in the public arena that knows the law and has considered its effects on the wider culture.

In her 2020 paper, she frames the issue of disparate impact in a way I hadn’t thought of before. Literally any practice you can think of has a disparate impact. Try to think of a way of hiring or promoting people that does not benefit one group at the expense of another. If everything is potentially illegal, and government does not have the resources to go after everything, then the government basically has arbitrary power to do whatever it wants under civil rights law. People who become civil rights lawyers or EEOC bureaucrats tend to be extremely woke, and it is their interpretations of the law that shape how institutions can behave. This is why I have called civil rights law the “skeleton key of the left.” In recent years, it’s been applied to try and force mask mandates, the use of left wing history books in schools, and now, transgender women competing against biological women in college and high school sports. As long as civil rights laws remain as they are, almost any idea coming out of universities, no matter how crazy, can potentially be forced onto local governments and private institutions without having to ever be sanctioned through the democratic process.

Imagine if in the 1960s, someone proposed a new law that explicitly authorized bureaucrats and the courts to simply do whatever they thought necessary to attack racism and sexism, and later other forms of discrimination, whether found in government or the private sector. Such a law would have widely been seen as heralding the end of the American system. This is Chris Caldwell’s idea of “two constitutions” that are inconsistent with one another. Maybe the new, woke constitution was destined to win, but so far we haven’t even had a conservative movement that has been willing to recognize what has happened, much less fight back against it.

The lesson I hope people take away from this conversation is that all is not hopeless. Opposition to wokeness can be more than sterile complaints from disillusioned academics and a way to bond conservative audiences to Republican politicians. There are things individuals can do as activists, donors, and voters, and much to be optimistic about given the extreme amounts of political and intellectual energy that are going towards anti-wokeness. Most of the battle is in convincing people that wokeness ultimately comes from civil rights law and civil rights law can be changed, which I don’t think are tough sells.

Gail may be the most qualified person alive to talk about these things. She understands civil rights law from the inside and out as a scholar, and has also been close to legislators and others who make policy. In this conversation, she explains the connections between civil rights law and wokeness; why the disparate impact standard criminalizes everything and leads to arbitrary government power; and the ways in which the laws get interpreted in the real world. I ask her why Republicans have been so useless on this topic and that leads to a discussion of whether they are scared of touching identity issues, the current Critical Race Theory controversy as a sign things are changing, and the importance of politicians being pressured by their base. Finally, Gail gives practical advice on what the most important components of an anti-woke agenda would look like.

The conversation is below, edited for clarity and divided by topic.

Watch the YouTube video here.

Civil Rights Laws Basics

Richard: Hi, everyone. Welcome to the CSPI podcast. I’m here today with Gail Heriot. Gail, how are you doing?

Gail: I’m just fine. How about you?

Richard: I’m doing great. Thanks for coming on. Can you describe sort of who you are and what you do to the audience?

Gail: I am a Professor of Law at the University of San Diego School of Law. I’m also a member of the US Commission on Civil Rights, that’s a part time job. But obviously I’m speaking here more in my capacity as Professor of Law because I don’t want to be speaking in my capacity as a government official here.

Richard: Okay. Yeah, of course. Duly noted. So could you explain to people, what is the Civil Rights Commission?

Gail: The Civil Rights Commission was established back in 1957, and basically, it is a commission that issues reports that… Back in 1957, that was the first civil rights legislation to come out of the federal government since Reconstruction. And what it did is it set up the Civil Rights Commission to sort of find facts. There was a lot more disagreement than you would think back in those days about what was actually happening on the ground.

And we’ve been around for quite some time now. It was reconfigured during the Reagan administration. And basically, it has eight members. They are all part time. Four of them are appointed by the president, four by Congress. I was appointed by the United States Senate on the recommendation of Senator McConnell. And about three or four, well, in a good year, we issue three or four reports. In a bad year, not so many.

Richard: And they’re like consensus reports? Both everyone… So it sounds like there’s political diversity. It’s usually Republicans and Democrats? Or if both parties control Congress, if one party controls both branches…

Gail: There will always be at least two dissenters. At least two people who are appointed by the party that is out of power. Right now we are 4-4. We’ve been 4-4 for just a little while. For a long time, we were 6-2, and my colleague Peter Kirsanow – who is a lawyer from Ohio, from Cleveland – he and I were the two conservatives. But now we have four conservatives. And the reports, well, the commissioners’ individual statements often say a lot more than the report itself. You get more of a diversity of viewpoint in the statements than you do in the staff-created part of the report.

Richard: So the reports that you are able to put together, something like a consensus document. And then you have, sort of like in a court case where you have concurrences and dissents, something like that?

Gail: Except for the report is not that. When the commission was 6-2, the report itself was not consensus. It was the left of center progressive view, and Pete and I would issue our dissents. And now that it’s 4-4, I wouldn’t say that the reports are quite consensus, but we come as close as we can. And if we dissent, we dissent.

Richard: Yeah. And so do people working in sort of the area of civil rights law, do they take the Civil Rights Commission very seriously? Because it sounds like it’s not just a group that provides information, it’s got a history of being taken seriously.

Gail: It has really gone into a lot of congressional legislation in the past, particularly in the 1960s though, because that’s when there was so much civil rights legislation. Some of the reports have been utterly crazy and I hope no one took them seriously [laughter]… Others at least have some useful information in them. There’s a lot of not so useful stuff out there as well.

Richard: Yeah, I can imagine. My understanding of civil rights law, you said in the 1960s, it’s been pretty, I mean, there hasn’t been a lot that’s happened legislatively, especially since say 1991, the Civil Rights Act. I mean, it’s been very minimal changes in the last 30 years, is that correct?

Gail: That’s right. But the 1991 Act was really important. It ended up causing some real problems.

Richard: Yeah, exactly. We’re going to get to that. Yeah, exactly, your articles. The reason I wanted you on, because you’re interested in the same things I’m interested in, which is the cultural phenomenon of wokeness and sort of how it can be traced and how it relates to law. You’ve written some very good law review articles on this. I’ve written on this too, but your recent articles I’ve read and I’ve actually learned a bit from.

You have one recent one that’s directly on this point, wokeness, called “The Roots of Wokeness.” I’d like to start though with one that was from two years ago because I think it sets the stage for the next one very nicely. And this article was in the New York University Journal of Law and Liberty. It’s called “Title VII Disparate Impact Liability Makes Almost Everything Presumptively Illegal.” I love that title. It’s an extreme case about the law. And I’ve written about disparate impact, I understood disparate impact. I think I could have put all that together in my head, but I never put it exactly like that: the law that makes everything illegal. And I think that’s just a perfect formulation.

Before we get into that, can you explain to people just what Title VI is and what Title VII is of the Civil Rights Act, because I think that’s going to be important for the rest of the discussion.

Gail: Absolutely. The Civil Rights Act of 1964 is probably the single most important civil rights statute passed by Congress. And the two areas of it that are most important to us today, Title VII – a lot of people have heard that, Title VII, Title VII, Title VII – that’s the part of the federal law that prohibits discrimination on the basis of race, color, sex, religion, or national origin, so it applies to all employers of a certain size. It is an extremely important piece of legislation.

Title VI prohibits discrimination, not just in employment, but basically in anything by a federally funded entity. So for example, universities almost always get some sort of federal funding. And they can’t discriminate on the basis of race, color, or national origin on account of Title VI.

Richard: Yeah. And so it’s schools, it’s basically, I mean, locales. I mean it’s almost everything, isn’t it? Because everything gets federal funding at some level. I mean, policing does, schooling does, so I think there’s very...

Gail: A lot of private employers wouldn’t be covered by Title VI. Now and then, you run across a university like Hillsdale…

Richard: Yeah, which refuses to take money.

Gail: …that avoids getting federal funding because there’s so many laws out there and so much red tape and so much bureaucracy that a university that is free to do what they think is best is kind of, it’s a rarity, of course. And it’s pretty cool actually.

Richard: Yeah. So just so people know when they’re reading the news, there was just a story in The Washington Post the other day. When they’re doing stuff like, when the federal government is coming in on the trans women in sports debate, they’re actually using Title IX, which is something different, from the 1972 bill.

Gail: Yeah. That’s actually a little bit later.

Richard: But Title VI is sort of the superstructure, Title IX is just elaborating on Title VI. So the fact that it...

Gail: Yeah. Title IX applies to sex. It applies to education institutions in particular and not to everybody that receives federal funding. And it’s got some exceptions that are appropriate for sex rather than race, but they’re very similar, very similar.

Richard: Yeah. Okay. So your article, as you say, Title VII – this is the one related to employment – makes presumptively everything illegal. So if you just look at the… You wouldn’t get that from the text of Title VII itself, which basically is just something that sounds very innocent and anodyne, probably would get 90% support if you just showed it to people, right? It’s something like, you can’t discriminate just based on race, sex, color, national origin, right? Those are the categories.

Gail: I would say more than 90%. I bet you get 95%. [laughter]

Richard: You might have some libertarians who might say you have a right to discriminate.

Gail: Yeah, but libertarians are not as common as you might think.

Title VII as Arbitrary Government Power

Richard: Yeah. No. Yeah. I think you’re right. So the vast majority of people would say it’s okay. And then the people who voted for it in Congress obviously got a majority of Congress. And so how did this get twisted into something that presumptively makes everything illegal?

Gail: Oh, my. [laughs] It didn’t take long, it really didn’t. It happened fast. And what’s funny is that members of Congress in 1964, they were aware of this possibility and they bent over backwards to make sure that it wouldn’t happen. Everett Dirksen, who was the Minority Leader in the Senate, wanted to make sure that the statute would say that you have to intentionally discriminate. And yet only a few years after Title VII passed, the EEOC was telling employers, no, no, no, no; it’s not just intentional discrimination, but if you have a job qualification that tends to screen out more persons of one race than another, and you don’t have a rock solid business necessity for this, then that itself is a violation of Title VII.

And yeah, like sort of knock yourself out. Look at the statute’s wording. Where does it say that job qualifications cannot have what they call a disparate impact or an adverse impact? And it doesn’t say that anywhere. In fact, in many places, it says just the opposite.

Richard: Yeah. I mean, this is the amazing thing about reading your summary of the legislative history, because it’s not like people didn’t foresee that this could happen. There was a case in Illinois. Illinois had its own version of an anti-discrimination law. And basically, it was Motorola, they tried to give a test and the test screened out somebody. A black man sued and said this is racist, because basically the test screens out black people more than white people. And so the exact situation that would come up later. And what was the reaction to that in Congress?

Gail: Oh, my. I mean, they went crazy to say, oh, that won’t apply to Title VII. That won’t apply. That won’t apply. And the newspapers picked this up. Back in those days, The New York Times was running in the opposite direction. And they had a pundit who was saying this is outrageous that the Illinois Fair Employment Practices Commission, or rather just a lowly hearing officer, had held that either.

It’s interesting because it’s entirely possible that in the actual case against Motorola, Myart v. Illinois Fair Employment Commission, that they really were race-discriminating. That they had lied and said that he flunked the test when actually he passed because he took the test in his lawyer’s office later and did fine on it, so we’ll never know. And Motorola said, we lost the test, so we can’t show it to you.

Richard: The lawyer’s office, I don’t know if that’s most neutral to take it there. [laughs]

Gail: Conceded, conceded. However, there was some evidence that he’d actually passed the test. And the fact that Motorola had lost the test was not, that didn’t cover them in glory. But all of that aside, the hearing officer then says, “Well, either he passed the test or even if he didn’t, the test is illegal because more whites pass it than African Americans pass it.” And so that’s when he starts going down this disparate impact road. And The New York Times says, “This is terrible. This is terrible.” And members of Congress get going on the floor of Congress and say, “This wouldn’t happen under Title VII,” and “Title VII doesn’t have that effect.”

And yet, just a few years later, the EEOC is saying, oh yes, it does. And the Supreme Court – to its everlasting discredit as far as I’m concerned – in the case of Griggs v. Duke Power Company, which is in the early ‘70s, they say, we defer to the EEOC. We’ll go with their interpretation because they’re so much smarter than we are. At least on these matters, so much more expert. It’s just stunning. It’s absolutely stunning.

Richard: Yeah. And it’s even more than that. It’s not that just Congress went crazy. They put a clause in the bill that just sounds like it was written for the Griggs case, doesn’t it? It basically says that...

Gail: It was. It was written for the Myart case. Senator Tower from Texas, who ended up actually opposing Title VII – I mean he was with the southern segregationists on this – but he was worried enough about the Myart case that he puts the clause in that basically says, hey, you can use tests.

But even more important, Dirksen puts in something that says discrimination has to be intentional in order to be remedied. Hubert Humphrey, who was the Majority Leader at the time, says, “that’s fine, I’m okay with that amendment. But I just want to point out that it’s unnecessary because that’s already implicit in the notion of discriminating because of race, color, sex, religion, or national origin.” I mean, that’s what it means to discriminate because of that, rather than because of how well someone did on the exam.

Richard: Yeah. I mean, and so what do people say? What do people who like the disparate impact standard say about the legislative history when they acknowledge legislative history matters? What’s the argument against, if there is any argument?

Gail: You know, I have never heard anyone who supports disparate impact actually do anything even remotely like a deep dive into the legislative history, or for that matter into the text of the statute. It’s just that their argument is we have to be able to do this or else we won’t be able to fulfill the ultimate goal of Title VII. So they take what you call a purposivist approach to the statute. They say the purpose of this was to get rid of all the obstacles to African American employment success. And the way to do that is to defer to the EEOC’s decision to go after disparate impact.

Richard: Yeah. So yeah, people who haven’t been to law school or people who aren’t lawyers might not know there’s different schools of interpreting text and interpreting the constitution. And so some people will say, look at the plain words. And some people will say, look at what was originally intended by the legislators. And I think for a lot of people that sounds like common sense. I mean, what else would you use, right? If we’re under the rule of law.

And then the alternative case, it’s sort of, it’s hard to describe without… I find it hard to describe without sort of mocking it. [laughs] I mean, it’s basically, I’m trying to describe it fairly. So they call it the living constitution, right? Which basically, norms evolve and things change and the world is not what it was in 1964. So maybe you apply something that, where you say sort of… I guess what I’ve seen them say is, and what courts have said, is basically the 1964 Civil Rights Act was meant to help black people. And that’s what it was concerned with. So therefore, how are you going to sit there and stop us from helping black people if we want to tell a company you have to have some balance or something?

But Congress could have written a law that just said “help black people” or “do what you think is right.” And that’s not what they did. They had debates over what helping black people meant and what the law should be in order to do that. And then that’s what was debated in the public forum and that was what was passed and signed by the president. So what am I missing here? What are their responses to that?

Gail: I’m with you. The whole thing just sounds crazy. The idea that you should continually go to a more abstract level of what Congress did instead of what they actually said. We should look at what they, what they sort of, in some cosmic sense, wanted to accomplish. And what was their purpose? Help black people. Well, you can take any statute. You can take the Patriot Act. The idea is to further national security. And therefore, we should be able to interpret that act to do whatever it is that the president, or whoever the bureaucrat is in charge of this, thinks is good for national security. That would be crazy, just crazy.

Richard: Yeah. That’s amazing. So you have this law, so that’s the disparate impact standard of Title VII. Basically anything you do, and it’s not just employment, it’s every step of the process. It’s promotions, it’s whatever, how you assign office space. Potentially anything is covered by the language. And so to sort of make the final connection there, how does that make everything illegal?

Gail: Basically, everything that’s done through employment, in a relationship between an employer and employee, they all have a disparate impact on some group. You’ve got to remember that lots of groups are covered by Title VII. So you can have a disparate impact on men, disparate impact on women. Think of how many religions are out there and how they differ from each other, not just in the doctrine of their religion. For example, Unitarians have very high levels of college degrees, whereas Baptists have lower levels of college degrees. So if you require a college degree for a particular job, then it’s going to have a disparate impact on Baptists relative to Unitarians. And this goes on absolutely forever.

If you, for example, wanted someone with experience in the donut industry, let’s say that you are running a donut shop. A little known fact – that is not something that is equal across all national origin groups. Cambodian Americans have more experience in the donut industry, so you’re giving an advantage to Cambodian Americans over other groups. Everything has a disparate impact, you’d just be shocked. If you look into it, you will find that just, if it’s not everything, it is so close to everything. There’s always a group that will be better off or worse off because of whatever the job qualification is.

Richard: Yeah. And...

Gail: I used...

Richard: Yeah. Go ahead.

Gail: I used to offer $10,000 to be given to the favorite charity of whoever could come up with a job qualification that has actually been used in the world that doesn’t have a disparate impact on some group. I thought maybe left-handedness, right-handedness would count. Because I can imagine to operate certain machinery, you need somebody who’s either left-handed or right-handed, so I can imagine that being used as a job qualification. But it turns out that since left-handedness is thought to be a negative quality in some ethnic groups, they train their children out of it at a young age, so that group is disproportionately right-handed. So I mean, just try to think of a job qualification that doesn’t have a disparate impact on some group. Jockeys are disproportionately Hispanic.

Richard: Yeah. So I mean, you could imagine you could do a lottery. And I guess, that wouldn’t, that’s not a qualification, that’s just a lottery. But then even how you recruited people for the lottery would probably have a disparate impact unless you’re just taking the census data. [laughs] That’s basically, that’s the only theoretical way not to have a disparate impact.

Gail: And that, there are actually lots of arguments about how advertising for a job on the internet has a disparate impact because certain ethnic groups, certain national origin groups or races, may have less access to the internet. So that would be taken very seriously.

Richard: So I think, so what this does, I mean, it makes everything presumptively illegal, but obviously the government doesn’t go after everything, right? It could. So what’s the process that you see, the patterns in what they go after and what they don’t?

Gail: Well, there are two different routes here. There are sometimes private lawsuits, so an individual can make whatever argument they want to make. But most of this, most of the action goes on at the EEOC, and they get to pick out the disparate impacts that they don’t like. And that gives them tremendous authority.

Now, it’s true that there are lots of agencies that have a lot of authority, and they can prohibit things. Congress over-delegates to administrative agencies all the time. But it’s particularly problematic at the EEOC because they don’t have the power to issue notice and comment regulations. So they don’t have the procedures for going, for saying, we’re thinking about prohibiting x. We’d like to hear your comments on whether or not this is a good idea.

Richard: I think we should explain to the audience. So for a normal government agency, basically you go through a process where you say, we’re proposing rule x. Give us your comments on rule x. And then, there’s some procedure. But the EEOC has a special status in law where it’s an independent agency, right?

Gail: No, but that’s not… What’s weird is that Congress was actually trying to deprive them of that ability to issue substantive regulations. They’re allowed to promulgate procedural regulations. They can say we’re thinking about requiring complaints to be on yellow paper, and then blah, blah, blah. Certain procedural stuff. They can do that. But they actually were deprived of the power to issue ordinary substantive regulations under the notice and comment procedure that you were just referring to. And that was an effort to make the EEOC less powerful and weirdly, weirdly, it’s done the opposite. It’s made them more powerful because after the Supreme Court agreed with them about disparate impact, that meant, well, somebody’s got to be the one to say which disparate impacts are we going to take seriously? And which ones are we not going to take seriously?

And so they can just do it by issuing what’s often called a guidance. Instead of going through the long procedure and listening to other people – particularly employers, unions, and such, about a particular proposal – they can just issue it off the top of their heads if that’s what they want to do. And they can go after it retroactively. They can look to see what employers are doing, and they can say to themselves, well, we don’t like that particular job qualification. Does it have a disparate impact? Well, surely it will, against some group and they can go after that one without any kind of procedure.

Richard: Yeah. So I mean, so in concrete terms. For example, one of the things they do go after, and they have gone after this and it’s been the subject of lawsuits, is criminal background checks. So the idea is that blacks, I don’t know if they think about Hispanics, but blacks, at least when you check for a criminal background, you do criminal background checks, that screens out a disproportionate number of blacks. Now, this same procedure obviously has a disparate impact on men too, but it’s never about that.

So basically, the law is supposed to be colorblind. And this is what they said in 1964. There’s quotes from senators, things like “it makes discrimination against a black person just as illegal as discrimination against a white person,” right? And especially in the context of quotas. So technically it’s supposed to be race-, sex-blind, discrimination is wrong. But in practicality, I think you said at one point in the article, you’re not sure if the EEOC has ever done a disparate impact case on behalf of whites or males. Is that right?

Gail: I think that’s still true. Yeah. It was certainly true when I wrote it.

Richard: Yeah. Do you even know, or are there even intentional discrimination cases against whites or males that they’ve gone after?

Gail: I mean, there have been cases that have been brought privately. I am not aware of one that has been brought by the EEOC. The EEOC at first in 1964, they didn’t have any power to bring any lawsuit against anybody. It wasn’t until 1972 that the authority to bring lawsuits against employers that have a pattern or practice of discriminating was transferred from the Department of Justice to the EEOC. They had put it at the Department of Justice precisely because they were worried the EEOC, because it’s an independent agency, is just not that answerable politically.

The president can’t be punished for what the EEOC does, but the president can tell the attorney general, and have some control over what sort of cases the Department of Justice brings. In 1972, they take the power away from the Department of Justice, give it to the EEOC. And that, that was hugely important, because now it meant that if the EEOC issues a guidance saying the following job qualification that has a disparate impact, we’re going to go after it, they could follow through and do it now. They can actually enforce what they’re saying. So that was an important moment. And I don’t think anybody was really thinking clearly about what effect that would have.

Richard: Yeah, yeah. Personnel is so important. The fact that they’re not a regular administrative agency, it means the appointment process and the hiring and firing work differently, right? So like, it’s not a normal government department like the State Department or something. The president comes in, he appoints the secretary of state, undersecretary of whatever, has all these political appointees. And so they tend to follow sort of the program or the policies of the president – State, Defense, Department of Justice. The EEOC, it’s a different setup. Can you explain the difference?

Gail: Well, the trouble is, it’s not so clear what the difference is these days. In general, the EEOC commissioners are appointed for a term. But actually, I can’t remember exactly how Biden did it, but Biden ended up firing some people in the EEOC that had been put there during the Trump administration. And I think some of that might be in litigation right now, I’m not sure. But at any rate, in general, the EEOC has been thought to be somewhat independent of the presidency. The president cannot issue a demand that the EEOC behave in a particular way. They get to do what they want.

Richard: Yeah. So a president cannot come in and say, I’m going to fire the EEOC? I’m just going to appoint new people? There’s legal hurdles to doing that?

Gail: There are definitely legal hurdles. And right now, they’re a little bit more in doubt than they have been in the past.

Richard: How about, can an executive order bind the EEOC? It’s part of the Executive Branch. Can the executive order say, “this should be the standard,” or something like that?

Gail: I don’t think so. No, I don’t think that would work. So it’s sort of an interesting question. Could we come up with something that a president can do that would affect the EEOC? That’s a question we’re going to have to reserve for another day. But I think it’s generally correct that the president has a lot more effect on what happens at the Department of Justice and can affect policy there in a way that they would have a very difficult time affecting at the EEOC.

Richard: Yeah. And so what this sounds like is basically, it’s a law, it makes literally everything illegal. And then what that means is, government doesn’t have unlimited resources. And so it’s basically, I mean, this is the definition of arbitrary government power. Everything is illegal. You choose what you like and what you dislike, and then you make the law that way.

Gail: Yeah, exactly. I mean, that’s how it works. And I think that the criminal background check example is a good one. I think there are probably many people who would like to see laws that promote the employment of people who’ve been let out of prison recently. Actually, we have such laws. There are government subsidies, tax subsidies that allow for that. But the EEOC decides they’re going to somehow force that out of the law that simply says you can’t discriminate on the basis of race or sex or national origin.

That’s not the way to do it, but that’s what they’ve done. And they’ve done it in a way that basically allows them to control policy over this issue. I would much rather policy on this issue be controlled by Congress, and yet, that’s not what’s happening. This is a very ham-fisted way to try to promote employment by ex-felons. We’d be much better off with the other policy that we’ve had, and that is a tax subsidy, because that allows employers who are in a good position, have the right jobs, can supervise employees who’ve recently been allowed out of prison, and made the decision that with this tax subsidy, they can do this. That works pretty well. Forcing employers to hire ex-felons, that doesn’t work nearly as well.

And the EEOC claims, and I think this is like, this just drives me crazy. Even if there’s a state law that tells employers you cannot hire someone who has just committed a felony and been convicted of a felony – you cannot hire them for this very sensitive job – the EEOC says, no, it doesn’t matter what state law is. This federal law trumps state law and we can make you hire ex-felons.

Richard: [laughs] Yeah. So on the, yeah, what’s legal and what’s illegal. So the prototypical case of disparate impact, I mean, it’s Griggs, and that’s where this doctrine starts within the courts. And so yeah, I mean, cognitive tests do have a disparate impact, but then college degrees also have a disparate impact, right? So it’s a strange thing that cognitive tests are pretty much presumptively illegal. I mean, technically yes, you could show business necessity, but in practicality it’s expensive and hard. People tend not to want to do it. But then the college degree is the same thing. So is there an explanation in law or legislative history or anything we could point to that could say why IQ tests are presumptively illegal or can be problematic, but not college degrees?

Gail: Yeah. It’s not just IQ tests, any kind of written test is very, very hard to get past the EEOC. The rules make it so that you have to spend very substantial sums of money and time trying to show them this test is a good test, and it doesn’t have a disparate impact. The only explanation that comes to mind is that the EEOC likes colleges and universities. That’s a Democratic constituency, a very progressive constituency. Because otherwise, it is just baffling because it is, particularly for Latinos, there is a very substantial disparate impact. There’s a disparate impact based on religion that’s again very strong. And why do they prefer colleges and universities? They like them. What you mean by saying this is very arbitrary.

Richard: Yeah. Somebody could presumably bring a Title VII suit based on a college degree as a requirement for employment. But I think these things, I think the courts, they’re presumably independent but they look to the EEOC. It seems like the EEOC sort of sets the cultural sort of norms in this area. So you could try some novel legal theory or a novel thing, but it will probably get ignored, right?

Gail: That makes sense to me. Occasionally there are novel cases and usually you don’t get a decision out of that at all. It’s just that employers want to avoid these lawsuits, so they will try to deal with it and try to settle such lawsuits. Mostly the law comes out of the EEOC.

How the Law Made Everything Woke

Richard: Yeah. So that sort of sets the background of Title VII and what’s happened to it. And then, so your other article, this just came out last month and is called “The Roots of Wokeness: Title VII Damage Remedies as Potential Drivers of Attitudes Toward Identity Politics and Free Expression.” That’s a mouthful. Mine was just “Woke Institutions is Just Civil Rights Law,” so I’m going, there’s a difference between a legal, a law review article and then just a blog. [laughs] But I think we touch on many of the same ideas. There was still a lot in here that I didn’t think of, and the way you put it, I think is great.

Can you explain what’s the general case for how you… First of all, how do you define wokeness? Because I have my own definition. Other people have their own. I don’t remember if you actually defined it in the paper. Just sort of one of those…

Gail: In the article, I just picked up a dictionary definition of wokeness that I pulled off the internet because I wanted to be able to say, look, I’m not going to give you my spin on this. And I think the dictionary definition was just something like, “highly attuned to issues of race and sex.” Something along those lines. I’m willing to go with that definition. I mean, highly attuned to the point of being silly, I think is accurate. But when I talk about roots of wokeness, I’m talking about how the country seems to have gone off the deep end now in trying to define everything in our history, in our culture, in terms of an effort to somehow disadvantage racial minorities or women. And I think it’s become, it’s gotten out of hand here, gotten way out of hand.

Richard: Yeah. That’s a funny definition because you say highly attuned to race and gender. I mean, that would pertain to the Ku Klux Klan, right? They’re highly attuned to issues of race, aren’t they? [laughter] So I think there has to be, so it’s more of in a certain way. I think the definition needs a little bit more. But I think it’s one of those things where sort of you know it when you see it, right?

Gail: Yeah.

Richard: So how do you connect it to policy? What are sort of the... I think, there’s regular law, but then there’s the way that the law works in most cases. And I think that civil rights law just has, why... It had the potential, I think what you’re saying in your piece, to have an outsized cultural impact in a way that other laws don’t.

So for example, we give money to farmers and it’s not like we became a country that ever had the potential to make us obsessed with farms. Maybe it does subsidize rural lifestyles and maybe there’s some downstream cultural effects. Maybe country music exists because of subsidies. You have the US Department of Agriculture. You could make some kind of argument like that. But I don’t think, I think most things in law are not like that and I think civil rights law is special. So can you talk about that and what you see the connection as between law and the culture?

Gail: I think that the fateful moment was in 1991, when Congress passed the Civil Rights Act of 1991, which amended Title VII. Back in 1964, the remedies that were available if you could prove a Title VII case were very limited. And by remedies I mean, what happens when you win a lawsuit? What does the court order? Does it order money? Does it order an injunction?

And back in 1964, you could get lost wages if you could prove discrimination. And you could get an injunction, you could get a court to order that a particular employer hire you or promote you or get a certain amount of salary in the future. But what you couldn’t get, you couldn’t get emotional distress damages. You couldn’t get that, and you couldn’t get punitive damages.

In 1991, they changed that. And what they essentially did is they put Title VII on steroids. Instead of it just being an ordinary cause of action where you had to be able to show lost wages in order to get money, you could get attorney’s fees, but that was unusual, so it was already generous in that respect. But now, not only can you get lost wages, an injunction, attorney’s fees, but now emotional distress damages and possibly punitive damages. And that especially affected the harassment side of Title VII.

Richard: Well, wasn’t... I’m sorry. Wasn’t it before 1991, couldn’t you get punitive damages for just race and not sex or am I remembering that wrong in the 1991 Act?

Gail: I don’t know about punitives for anything, but you could get, you possibly could get punitives at the hiring stage under Section 1981, which is a different statute.

Richard: Okay. But the sex thing is what actually took off, so 1991, we know. Go ahead.

Gail: Okay, so in 1991, things change, especially for harassment causes of action. So racial harassment, but especially sexual harassment because that was what was on everybody’s mind in 1991.

Richard: Yeah. This was a few months after the Clarence Thomas hearings.

Gail: Yeah, and it’s funny. The newspapers all reported that because of the Clarence Thomas hearings that suddenly the number of sexual harassment cases skyrocketed. [laughter] But that wasn’t it. It was this act, and the act had already been drafted and it already said everything it was going to say about this. And it may be that a few people were paying attention to the Clarence Thomas hearings and thought sexual harassment, I think I’ll file a complaint. But basically, it was suddenly you could get money for emotional distress.

And for most cases of harassment, whether it’s racial or sexual, there won’t be any lost wages. And so prior to 1991, it was really only very serious cases that tended to be litigated. But after 1991, anybody who was upset with their employer, particularly if they’d left their employer for a different reason. Maybe they’d been fired for something that had nothing to do with race or sex, and they wouldn’t have been able to prove that it did. Maybe they left because they wanted to leave. But now they can turn and say, and by the way, I was harassed. And they could get substantial damages. And to some degree you could say, well, Congress authorized it, that’s what they wanted. But I bet they weren’t quite thinking about all of the different ramifications here.

Harassment. What is harassment? What constitutes enough harassment to where you ought to be able to bring a lawsuit? Back when it required lost wages, it just wasn’t going to, it didn’t matter that the definition was vague, because it had to be bad enough to have caused the person to lose wages. Either they had to be fired because they weren’t cooperating with the harasser or the harassment had to be so terrible that it was just, they had to leave before getting another job. That’s going to require some kind of harassment.

Now, after 1991, the fact that the definition was so vague, you never know what a jury is going to do. And that mattered lot. What mattered I think even more, prior to 1991 the Supreme Court had defined harassment in a way that allowed it to be proven by cumulative incidents. So you could have 20 different colleagues and one of them said, gosh, you look nice today, Miss Snodgrass. And it’s a perfectly nice person, isn’t trying to harass anybody, just wants to say you look nice. Well, that could be added to the next person in the office who said something that was, told a little off-color joke that wasn’t even directed at this particular employee, but she overheard it. And the next person might have posted a picture of his wife in a bikini and it potentially turned off…

Richard: Yeah. These are all real cases. You’re not making these up. I mean, these are things that have been cited in some kind of…

Gail: All these things have been, at least they have been the subject of litigation. I made up the name Miss Snodgrass. But all of these things have been thought of as possible contributing factors to a harassment cause of action. So because it’s cumulative, every employer is suddenly thinking, whoa, we’re going to avoid this kind of litigation. We’ve got to not just tell people not to act outrageously. We’ve got to start telling them that every little thing that might contribute, we’ve got to put the brakes on all of it, because we can never tell when you’ve reached the point where the Supreme Court would have agreed this is serious enough to where you can collect damages.

So that cumulative aspect of it is just hugely important. So immediately employers want to start gathering their employees together and giving them a nice course on what not to do. It would be, don’t do a lot of things that previously would have been thought of as completely innocuous.

Richard: Yeah. So Eugene Volokh has a great paper on this. So he basically says it can be cumulative. You don’t even know what the lines are. So basically, what do you do if you’re an employer? You say, don’t talk about sex. Don’t make any kind of joke that could be interpreted the wrong way, because it’s cumulative. It’s not like, okay, here’s this one person, 40% of you can make a joke or say something about their looks or something like that. [laughs] That’s not a workable standard. So yeah.

Gail: From that standpoint, you have to expect employers are going to do what they have to do. And prior to 1991, when they weren’t thinking money damages, you’d get people, particularly on college campuses. I mean, colleges are employers just like everybody else. But there were more people who were ideologically oriented towards stopping harassment prior to 1991. And they really got the upper hand on campuses after 1991. And they just went crazy.

Richard: Yeah. I mean, I think people don’t realize this. I mean, we could talk about the way the laws are written and you could say, oh, it has an exception. It has this, it has that. But most people who are running a business, they’re not lawyers and they have a thousand laws and regulations to think about. And so what are they going to fall back on? They’re going to fall back on hard, easy rules that are going to make their lives as easy as possible, right?

So this thing like, oh, can I do this test? But business necessity, but standard of proof this, or cumulative harassment, what’s okay, what’s not. They’re likely, they’re not going to think about all that. And so you could say, well, the law technically could give you a lot of wiggle room and this and that. You just have to think sort of pragmatically how it’s interpreted in the real world. And most people are going to, are just going to…

Gail: It’s not just lawyers, even the most...

Richard: Even lawyers don’t know, yes.

Gail: …saying, well, technically it’s not harassment unless it gets to a pretty bad level. But what can I tell my employees other than don’t do anything that can contribute to this? It’s a perfectly rational response, and the employees then sit through a training program that says no, don’t do this. Don’t do anything that might be interpreted as a contributing factor to a harassment cause of action.

And not only do the employees take that to heart and say, okay, I’m not going to tell Miss Snodgrass that she looks nice today. But employees who might see themselves as potentially a target of harassment are now going to be especially sensitized to, gosh, if so and so tells me that I look nice, maybe that’s really not very nice. I used to think of that as something that was nice when someone complimented me. And now, I think of it as maybe I should… Maybe I was being silly in the past for thinking the person was nice. Maybe down deep they’re really just trying to harass me.

Richard: Yeah. I mean, you do create a financial incentive to look at it one way and not another way.

Gail: Absolutely.

Richard: Yeah, so one thing I really liked about this article is that when I wrote my article, I put the blame on the innovations in civil rights law after the 1964 Act. So disparate impact, the affirmative action executive orders which we haven’t gotten to. And a lot of people said, okay, well, wokeness seems more recent than that. And I sort of didn’t really have a good response to that. And I knew of the existence of the 1991 Civil Rights Act, but I think what I learned from your article was just how important it was.

And so if you look back at sort of a timeline of when this stuff started. Yeah, I mean, wokeness in 1991 is not the same thing as wokeness in 2010. I mean, it’s definitely got a different flavor to it and there’s new stuff like trans issues and stuff like that. But when you look back, when sort of people started talking about PC as a big enough issue to get people’s attention, it was the 1990s, right? So the timeline does match up.

You mentioned about the universities, how after 1991, they got the upper hand. The people who wanted to censor speech and basically, the wokes started to move into power. Can you talk about that a little bit? Do you connect that to the 1991 law? Do you think there’s a case to be made that there’s a connection there?

Gail: Oh, yeah. I think there is. I mean, on every campus during the late 1980s, we started to get these hate speech codes. The courts basically struck back, and a lot of these hate speech codes did not turn out to be that much of a problem in the early ‘90s. But as time goes on… If you figure there are people on every campus, and usually the general counsel who will take academic freedom seriously, who will take the need for free expression seriously, they know they’re a university. But their job is to keep the university out of trouble.

And so they kind of switch sides if they’re practical and thinking, what I’ve got to do as general counsel or as associate general counsel at the university is keep the school from getting sued. Then they start leaning in the direction of the folks with the strong politically correct ideology, because they know, hey, otherwise, there’s going to be a lawsuit and we will lose some of these lawsuits. So they kind of switch sides over to the… Practical minded administrators start becoming sympathizers with the progressives who want strong controls on speech. And I think for that reason, because the progressives with that ideology were already on campus and they’re already pressing for this, universities, I think, have gotten it worse than anywhere else.

Meanwhile, the federal government started demanding more Title IX officers on campus. So you get people whose whole job is about this. And you have to add to that, there’s another aspect of the law that I think made this worse than it otherwise would be, and it’s an aspect that is understandable. There was already law that an employer cannot retaliate against someone who makes a complaint. And you can see why that would be true. You don’t want to say, so and so is complaining that they were discriminated against on the basis of sex or race and that wasn’t true, but we fired them because they made a complaint. That was what we did.

And they developed this notion in the law, starting in the 1960s and ‘70s that you can’t retaliate against someone who makes a complaint. Well, fast forward to the 1990s and the early 2000s, every time someone on campus makes a complaint, the university officials have in mind that they’re not supposed to tell this person you’re an idiot, that’s ridiculous. It’s sort of like, oh, we’ll take this very seriously. We’ll investigate. And that just enters the culture in itself, where people are used to the notion of if you make a complaint, suddenly everybody will sit up straight and take you very seriously. And that’s not been a good thing.

Richard: Yeah. It’s fascinating because it’s just such a different way of seeing the woke phenomenon than I think what most people imagine when they’re critics of it, right? So I think most people imagine just sort of the ideas they’re having are just like operating sort of in a free marketplace of ideas. They’re having a force of their own. So somebody complains to the university administrator, the university administrator is either sympathetic to free speech or sympathetic towards multiculturalism and diversity and this stuff.

And I guess what’s happened in the last 20, 30 years, they’d say is, well, the administrator has become, believes less in free speech, and now believes in, whatever. The same thing with everything else. Oh, the corporation, woke capital, right? Oh, MasterCard must have just become very interested in sexual orientation and gender identity lately without any connection to anything else going on in the world.

I think your view of the world and my view of the world is most people are not ideologues, right? Most people are not like me or you or the wokes. They’re not sitting around, they don’t have a strong opinion on free speech is better or diversity and inclusion are better. They’re just trying to do their day job and they’re trying to not get in trouble and not cost their company or their institution a lot of money. And they’re trying to get along with people. And in that case, the law can have a huge effect because the law is just sitting there, and it’s just sort of putting its thumb on the scale. And if people are just going along to get along, cumulatively it becomes a really, really big deal. And eventually you see every institution taken over by these ideas.

Gail: Yeah, exactly. These major corporations, at some point they started hiring people into offices who could deal with the problem. And they got colonized in that way. And the average person working for these corporations wants to make sure that things run smoothly. That they don’t get sued, that they don’t get protesters. And after 30 years of this, it affects the culture. People start thinking along those lines.

It’s always important to recognize not only does culture affect law – that we pass the laws that we believe in presumably or that members of Congress, members of state legislatures, city councils, administrative agencies believe in – but the law affects the culture as well. We’re all trying to navigate successfully through this maze of laws. And that has an effect, a very powerful effect, particularly over long stretches of time.

Republicans and Civil Rights Law

Richard: Yeah. I’ve always thought the idea that basically culture is the main force here and law is like, there’s a limit to what you can do, I always thought that was very sort of convenient for Republican politicians. I don’t know if they invented that idea, but it’s very sort of convenient for them. Politicians, what can we do? [laughs] It’s like, it’s just the culture. It’s just there’s nothing there for a government to do in an open society because we’re not an authoritarian regime. It’s just culture, you can’t change the culture.

But you’re right, I’m convinced that absolutely… Actually the other thing about the 1991 law that you see, and why the timing works, is because you see the explosion in Title VII lawsuits in the 1990s. So you see a couple of things happen in the 1990s. You see the explosion of Title VII, they go up for a while but then they go really up in the 1990s. And then you have sort of the wokeness wars on college campuses.

And basically, we’ve been living with wokeness. It’s ebbed and flowed a little bit, but basically we’ve been living with it ever since. And they’ve really, really picked up in the last 10 years. I think that’s when everyone became like, you couldn’t avoid it. But the universities were there for 20 years, and they were sort of the canary in the coal mine. And then progressively other things fell under its sway.

So yeah, so I mean, this is all fascinating. You’ve been in sort of the policy space, I don’t know if the Civil Rights Commission is a policy space, but you’re in sort of the political realm a little bit. So it’s sort of a little bit confusing to me. Because, so in 1964, there was this consensus that discrimination has to be intentional. This was everyone in the Senate from the right to the left. In 1991, the law is passed, and I think it gets something like 90 Senate votes, right? And so it’s all Democrats and then almost all Republicans too.

I know it’s a compromise, Bush Senior vetoed the original Civil Rights Act of 1990, but then he signs it in 1991. So this is a compromise that the Republicans were willing to live with in 1991. This was after the Reagan Revolution, so you think, conservatives are supposed to be more conservative now. And so this question is not just about the 1991 Act, but basically, what have the Republicans been doing all this time?

Gail: They’re terrified of these, deer in the headlights. They don’t like issues of civil rights. They don’t like issues of race or sex. And it’s interesting, back during the first Bush administration when this was passed, it started out that the White House Counsel’s office during the Bush administration was very strong and was doing, I thought, a great job in pointing out what’s wrong with the act and was fighting it. And the word finally came down from the political people in the White House – this has got to go through. There’s got to be an act, so do what you can right now. But there’s… The president is going to sign an act.

And so it was driven by the political people, not by the lawyers. The lawyers generally did understand that this law was going to be a problem. They focused more on the disparate impact side of it. And I think ultimately, the emotional distress damages and the punitive damages side of it was actually more important than the disparate impact side of it. But the disparate…

Richard: Because that was muddled anyway, nobody really knew what the disparate impact…

Gail: Well what happened, it was because money damages are only available for intentional discrimination now. That part of it didn’t apply to disparate impact. So when it comes to private lawsuits, everybody wants to allege intentional discrimination. And the EEOC is left in the space to play with disparate impact. And as we said, it is very arbitrary about how they do it.

Richard: And hostile environment is intentional discrimination? It doesn’t have to be like, I want to discriminate against you for being a woman. It’s basically like, we make sexist jokes, we do that intentionally. But that technically, of course, you get punitive damages for that?

Gail: Yeah. It’s sort of, you intentionally told a dirty joke.

Richard: [laughs] You intentionally discriminated. You intentionally told a dirty joke, which is okay, yeah, a kind of harassment. Yeah. That’s amazing. But I mean, so is that the explanation, that they’re just afraid? So they’re afraid of race issues. The biggest conservative sort of issue in the country, or one of the biggest right now, is Critical Race Theory. So they seem like they’re not completely allergic to talking or thinking about race or running on it, right? There do seem to be some kind of…

Gail: It’s a really good sign that finally people are standing up. But note that this is grassroots level. It is not Republican politicians, conservative politicians, who have brought this to people’s attention. This is being brought to the country’s attention by parents. And they’re seeing what their children are bringing home and it’s like, whoa, this has really gotten out of hand. And I think like at the end of May 2020 when George Floyd is killed, and suddenly wokeness is like front and center of everything. And for a moment, it seemed the world was changing while we were all locked in our living rooms.

And I think that so many parents understood at that time, this is going off the deep end on race. And so they’re more alert to this than they otherwise would have been. But I think we’re still not getting as much response from actual politicians, actual representatives of the people, with a few exceptions who I’m happy about.

Richard: Yeah. I saw Youngkin, I mean, early when he won the race in Virginia. He did something. He disbanded the diversity office of the state or something like that or he got rid of, he fired them or something and did a critical race theory executive order. So I know they did one, either they had a law or an executive order in Florida too. So at least politicians, I don’t know how effective these things are, the politicians seem at least to want the photo ops and they want the headlines that they’re doing something on this stuff, right?

Gail: Yeah, I think it’s a good sign. My suspicion is that some of the statutes, if there are statutes or executive orders, will not be drafted perfectly, but right now I’m figuring the best thing to do is to start making as much noise as possible. Because this is serious. We’re teaching a generation of kids a history of their country that is incredibly biased, it does not bode well for our future. We need to have something that is along the lines of the truth here.

On the progressive side they say, well, why shouldn’t students learn about slavery? Why shouldn’t they learn about Jim Crow? For goodness’ sake, we’re all for that. But we’re also for making sure that they understand a balanced notion, that slavery has been around the world and a lot of people fought and died to stop slavery in this country. That the history of this country has its ups and downs, and they should learn about both, not only about the downs.

Working towards Policy Change

Richard: Yeah. So I guess my question is, staying in that sort of policy realm, if someone is listening to this and they read your articles and they hear this podcast and they’re concerned with wokeness. They think you’re right; it’s connected to civil rights law and they’re convinced by your articles. What would you advise them as far as what they should look for in politicians? Or this could be advice for politicians too, or leaders. What would you want, from like a Republican administration? Obviously, we can always think of legislation Congress could pass. I think that’s probably unrealistic. But as far as, what would you want, say, in the next couple of years out of the courts and out of the executive branch, assuming a Republican is in office to push back against the stuff?

Gail: I think most of what needs to be done needs to be done in the courts right now because we need to undo some of this stuff. And right now, we’ve got pending before the Supreme Court a case against Harvard University and a case against the University of North Carolina about race preferential admissions. And I think another root of wokeness comes simply from these programs, where students who happen to be from an underrepresented race but are often members of the upper middle class themselves, they are admitted to a school where their entering academic credentials put them towards the bottom of the class.

Some students are going to outperform their entering credentials. Other students are going to underperform their entering credentials. But most students are going to perform right about what their entering credentials say. They’re going to do the same level of work they were doing in high school or shown by standardized tests or whatever. And that has been part of the ugly stew of identity politics in wokeness, where you’ve got students who would have done splendidly at a school that’s one rung down or two rungs down but end up towards the bottom of the class and are resentful on account of it.

Richard: Yeah. And they put them, I mean, they often, they have these programs that these “studies” courses that aren’t, they’re less challenging subjects and they’re very ideologically driven. You can see how that would compound the problem.

Gail: We’d have more African American STEM majors going on to medical school, going on to a job in the sciences and engineering. And instead we get more that are in these programs that are highly ideological, and that’s got to stop. We’ve got to come up with a way to stop that. And that will affect the culture. It will take another 30 years to have more successful African American adults in STEM areas and in other areas. But that’s the first thing on the list.

Disparate impact, we need to be able to make the argument. Now again, it’s got to be made to courts that disparate impact is in fact unconstitutional because the 1991 Act, alas, enshrined or at least arguably enshrined disparate impact into the statute. And that’s been a big problem. And the easiest way out of that now, and it’s not an easy way, is to be able to argue that that is basically a form of discrimination itself. And so that’s another thing. One more thing…

Richard: So just, you talk about it in the paper a little bit. So the argument for disparate impact to be unconstitutional, can you just explain that real quick?

Gail: Well for one thing, basically it has always been held that it only applies to women and racial minorities. So that’s the way it’s always been applied, in which case, we protect women, we don’t protect men. We protect African Americans and Latinos, we don’t protect whites and usually we don’t protect Asians, although sometimes that works the other way. That’s got to be, that’s got to survive strict scrutiny all by itself there. And I don’t think it has a prayer of doing that.

And what progressives have argued is, well, we’ll apply it to everybody. Well, that’s utterly incoherent. That means that nothing can ever, ever be good. But it still discriminates because certain kinds of industries and certain kinds of job qualifications will protect whites in certain areas and will protect blacks in other areas. That’s still, that’s just more discrimination.

Richard: So basically, the basic argument is that Title VII, by saying you have to worry about disparate impact as an employer, you’re basically forcing explicit discrimination, right? You’re basically, you have this one evil and then you fix it by an evil that’s more suspect. You can’t force someone to discriminate. You can’t do this explicitly, you can’t say you have to discriminate against white men. But you can say nothing that has a disparate impact against blacks, which ends up just being discrimination against whites, right?

Gail: Pick the job qualifications that are good for African Americans and therefore are not as good for other groups, even if they’re not as useful at locating the right employee. You’re protecting African Americans at the expense of non-African Americans or you’re protecting Latinos at the expense of non-Latinos. And that’s discrimination in itself. It would have to survive strict scrutiny. I don’t think it can.

And I don’t think saying, well, sometimes we’ll protect whites and men against disparate impact, that doesn’t help because it just means you’ve ghettoized everything. So in areas where whites don’t do particularly well, but African Americans do, you’re going to have to then choose job qualifications that disadvantage African Americans, and they’re being discriminated against.

If you did it for sports and said you have to change the qualifications for getting a job in the NFL so that more Asians can get in, or more whites can get in, or more women could get in, then you’re basically harming people on the basis of their race or sex.

Richard: So yeah, affirmative action, you wanted the courts to do something on affirmative action. The best thing to do would be to say disparate impact is unconstitutional. Anything else you’re looking for out of the courts or any other branch of government?

Gail: Oh boy, there’s so many things. I mean, when it comes to education and all this CRT stuff, I don’t really want the federal government to get involved there. I think part of the problem in the world is that we’ve centralized too many decisions and I am much more interested in having education issues become more local. And in part that means making it possible for more charter schools, making it possible for more private schools, and I want education to be more decentralized. And I think that will generally help.

So I’m looking for a president, I’m looking for a senator, I’m looking for state legislators who see that and know that decentralizing education is important. Education is one of those things where it’s hard to measure and it’s hard to know what’s a good education and what’s a bad education. So the best defense we have is always going to be let’s make sure that we’re going to let a lot of different approaches reign.

Richard: Yeah. I mean, it’s hard to know. You see this woke stuff in schools, we have no idea how prevalent it is. We have anecdotes, we don’t know if it’s 100% of schools now or 10%, it’s really impossible to tell. You’re right. I think our ability to even know how well the government is doing is difficult. So I think, yeah, you’ve got to decentralize it. You might as well give people choices.

What do you think about, I mean, I’ve always thought an obvious place to start… Executive Order 11246 basically said you have to have affirmative action among federal contractors. I looked it up, this covers something like 30% of the American workforce. I mean, government contractors and their subcontractors too. This seems like low hanging fruit, right? It’s just an executive order, you repeal it or you circumscribe it. Is there any legal problem or political problem with doing that?

Gail: There’s a political problem. There’s a political problem with all of this, because of...

Richard: Of course, yeah.

Gail: …those that benefit from preferences of this sort, they’ll fight to the death to keep it. Whereas people who are generally on the conservative side of this, this is not their number one issue. It’s like it’s number 10. And so you get the usual problem of the most vociferous people are going to be those who are saying, no, we want to keep racial preferences, we want to keep sex preferences.

Should it be repealed? Yes. And if you look back into the 1970s, there was a case under Title VII. And it was the Supreme Court case, a 5-4 decision, the Weber case, that said that even though Title VII says on its face you can’t discriminate on the basis of race, they did the same thing they did in Griggs. They say, well, the purpose of all this is to help African Americans, so you can discriminate in favor of African Americans and have that sort of discrimination.

They limited it to a case where the employer had discriminated in the past as Kaiser Aluminum and the Steelworkers Union had done prior to the passage of the Civil Rights Act. And that has been taken ever since as permission to discriminate. And one of the interesting things about the case is that the court says, well, why shouldn’t the steelworkers in Kaiser Aluminum, the employer, be able to voluntarily give preferential treatment? And the whole decision is, oh, this is voluntary.

And I thought, for goodness’ sake, the segregation in the past was voluntary too, but it was bad. It was bad. But the funny thing is it wasn’t really voluntary. It was being pressured by the executive branch pursuant to Executive Order 11246 that called upon anybody that does business with the government to have, essentially, quotas. I mean, they denied that it’s a quota, but come on, you tell employers, we really, really want you to aim to have a large number of minorities. They’re being told they have to do this. Say “jump,” and they’re going to answer, “how high?” And that’s what’s happened.

Richard: Yeah. So the thing we can look forward to, I think in the medium term, is what’s going to happen with the Harvard case and the North Carolina case. Do you have a feeling? Would you make a prognosis on that? What’s your sort of intuition telling you about how that’s going to go?

Gail: Well, I will tell you that my prediction is not worth two cents, because I was really sure, back in 2003, that we would get at least some movement towards winding down racial preferences in the University of Michigan cases, that is Grutter v. Bollinger and Gratz v. Bollinger. And the newspapers spun that one as, yeah, the two cases came out two different ways, so it’s kind of splitting the baby, but it wasn’t. It was easy to get around the Gratz case. And the Grutter case was just, it basically told universities as long as you do it the way we described it here, we’ll let you do whatever you want. And so I predicted that it would go the other way and I was wrong.

Nevertheless, nevertheless, you heard it here first. I predict that finally, the Supreme Court will at least move us further in the direction of racial preferences in admissions at colleges and universities violating Title VI, as well as with a state university, the Constitution’s Equal Protection Clause.

Richard: Yeah. I hope you’re right. Forecasting this stuff is hard because in the end, you’re guessing about the psychologies of a few people. So you have a majority, you know how Alito and Clarence Thomas are going to rule and how the three liberals are going to rule. And then the other ones, I think people feel good about Gorsuch, but it’s like, who knows? They could do something creative or strange. Yes…

Gail: Gorsuch…Actually in the Bostock case, even though he went off in a direction that’s thought of as the progressive direction by saying that Title VII forbids discrimination against transgender. The way he decided it and…

Richard: Yeah, a very literal reading, yeah.

Gail: Yeah. It’s just sort of like, a woman in dress would’ve been hired. So a man in dress has to be hired too. [laughter] That’s sort of like, it’s being really, really textualist instead of going off in the direction we were talking about before, where you look at the purpose of the act. He said, I don’t care about the purpose of the act. If he applies that same logic to the Harvard and University of North Carolina case, then he will be extremely strong against race preferences.

Richard: Yeah, of course, you’re right. And I guess the question is, when you’re forecasting this stuff, is that just sort of a psychological way to sort of give in to the left, or is it a principled dedication to textualism? So a lot of people think it’s the latter with Gorsuch. And so if you had him, Alito, and Thomas, yeah, you got three and then, Kavanaugh, Barrett, Roberts. So we’ll see. I mean, it’s just what these people decide to do.

Gail: Yeah. Well, it will be kind of fun to watch this.

Richard: Absolutely.

Gail: If it comes out badly, I’m going to get a day to have a good cry, because I think these racial references have really been destructive. They have harmed the people that they are supposed to be helping. We’d actually have more African American scientists, physicians, lawyers, college professors, if students were going to the school where their entering academic credentials made them competitive.

Richard: Yeah. I think that, going back to what you said about conservatives, this not being their main issue. I think when we connect the civil rights stuff to wokeness… Wokeness, I think, is pretty much the main issue. I mean, you look at what’s driving people, I mean, what’s driving conservative media, it’s really over the top. And so I think if you put it as executive orders on affirmative action or the disparate impact standard in Title VII, no, that’s not going to make the top 100. If you say, this is wokeness, that thing you really, really hate and you keep talking about, it’s literally this, it gets close to number one. I mean, it’s...

Gail: Yeah. We go back to your point earlier, and that is, the average person on the street sort of thinks this is the marketplace of ideas, and they can’t understand why these things are where they are. And I want to say, look, you have a law that allows schools, or you have an interpretation of a law, that allows schools to discriminate, and it’s contributing to the problem of woke. It’s part of what causes people to think in those terms. And by then, they’re often thinking about something else, like what they’re going to have for dinner or how they have to deal with their computer. [laughter] And I don’t blame them. We’ve all got to deal with our lives and not everybody’s going to read Gail Heriot’s law review articles.

Richard: Yeah. The thing about law review articles, somebody asked me when I posted it on Twitter, somebody said, is it normal for law review articles, for the footnotes to take up two-thirds of the page? And I said, yeah, in law reviews, yes. Maybe not other places. So people are, yeah, feel free to skip the footnotes. It’s a great article, but lawyers, they tend to like a lot of words in there. It’s just a different style.

Gail: I used to have a dean that would like, that’s all he wanted to know about your article, how many footnotes were there. [laughter]

Richard: It’s a lot of that, isn’t it?

Gail: When it came time to decide on people’s salaries, how many footnotes? [laughter]

Richard: Oh my goodness. [laughs] Okay. Well, it’s been great, Gail. Before I let you go, are you working on anything you want to talk about related to wokeness or civil rights law or anything close to it?

Gail: What I’m hoping to do is to write a book that includes some of the things that I’ve written recently in law review articles. And you’re right. You look at a law review article and the average non-lawyer that isn’t used to law review articles is thinking, what are all these footnotes?

I want to write something in language that’s more approachable to the average reader. And I am now working on getting funded so that I can put all of this in a book where I get to say those same things but say them in a very different style. Say them in a way that somebody can actually take to bed and read a chapter a night as opposed to falling asleep on page 1 when they look at all the footnotes.

Richard: Okay great. Yes, I always wondered about that. I said this stuff would be great in a book form. I’m glad you’re thinking about doing that. Great. Well, Gail, it’s been a pleasure. Hopefully, this conversation will get out there and let people think about these issues more in sort of a policy direction and practical terms of what they can do. Thanks a lot. This has been really great.

Gail: Thank you. Bye-bye.

Links:

Gail Heriot, “The Roots of Wokeness: Title VII Damage Remedies as Potential Drivers of Attitudes Toward Identity Politics and Free Expression.”

Gail Heriot, “Title VII Disparate Impact Liability Makes Almost Everything Presumptively Illegal.”

Gail Heriot, “The Department of Education's Obama-Era Initiative on Racial Disparities in School Discipline: Wrong For Students and Teachers, Wrong on the Law.”

Richard Hanania, “Woke Institutions is Just Civil Rights Law.”

Eugene Volokh, “Harassment Law and Free Speech Doctrine.”

Myart v. Ill. Fair Employment Com.

Griggs v. Duke Power Co.

Gratz v. Bollinger

Grutter v. Bollinger

Bostock v. Clayton County