In considering the outcome of the recent elections in the United States, the question arises as to whether we can now expect to see the end of diversity, equity, and inclusion schemes which were beloved of the Biden administration. As we await the new administration, it is timely to evaluate the challenges facing those seeking to uproot the DEI industry. A key point to highlight is that the roots of this industry run too deep to be supplanted simply by closing down federal DEI programs. We can certainly celebrate the end of Mr. Biden’s Executive Orders on DEI, such as the “Executive Order on Diversity, Equity, Inclusion, and Accessibility in the Federal Workforce,” but the wider culture of what is often called “wokery” which now abounds will be much more difficult to displace.
A good example of the culture of “wokery” comes from universities. On the eve of President Donald Trump winning his historic second term of office, the website Campus Reform reported that, “Students at Georgetown University’s McCourt School of Public Policy will be offered ‘self-care suites’ Tuesday, where they can play with Legos, use coloring books, and drink milk and cookies.” Campus Reform also highlighted its previous report that, “the University of Oregon’s University Health Services is providing therapy goats, dogs, and even ‘Quacktavious the Therapy Duck.’”
The response of many people to such excesses of “wokery” is simply to laugh. It is easy to be amused by the outrageous antics of the fragile adherents of the woke culture. However, laughter must not distract us from the more sinister elements of the DEI industry. As DEI is now banned in several states, many presume that the threat to liberty posed by DEI is over. In fact, DEI has simply evolved.
DEI continues to evolve
The terminology of DEI is constantly being reconfigured, and vigilance is therefore required in keeping up with its new forms. It must also be noted that DEI bans are limited in scope. For example, when Utah banned DEI it was noted that “the guidance does not advise colleges to close their cultural centers—spaces on campus dedicated to supporting minority students with specialized resources and opportunities to socialize.” If a former DEI office is repurposed as a “cultural center” to support minority students with “specialized resources” (for example, resources on African American history) that would fall outside the scope of a DEI ban. It would, in any case, be viewed as churlish to complain about cultural events, and unconstitutional to attempt to ban them.
For similar reasons, care has been taken in DEI bans to avoid violating the First Amendment protection of free speech. To avoid the fate of Florida’s DEI ban which was struck down on free speech grounds, it is necessary to emphasize that talking about diversity and other concepts derived from Critical Race Theory in seminars or classes is not, in itself, banned. Free speech remains the paramount principle. This is why a teacher who canceled class on Wednesday after the election, as she felt she needed to “grieve” about the results, made a point of adding to her message a rider specifying that “no matter your political beliefs, you are welcome in my class and won’t be discriminated against in any way.”
The hegemony of diversity
Many people who oppose DEI are primarily concerned about affirmative action in university admissions. Quotas are illegal, but unofficial quota systems are difficult to police if they are framed as “promoting diversity.” Christopher Caldwell discusses the historical roots of this problem in his 2020 book, The Age of Entitlement: America Since the Sixties, which was described by David Gordon as an outstanding book. Dr. Gordon highlights in particular Caldwell’s argument that, “By forbidding private discrimination on grounds of race, the Civil Rights Act of 1964 took the first step toward the destruction of what Caldwell calls the ‘old constitution’ by which America had been governed.” In discussing the roots of this problem, Caldwell emphasizes the role played by diversity in providing cover for the civil rights revolution. Thus arose the hegemony of diversity, which was later reinforced by the concepts of inclusiveness and equity. Discrimination against white people is now seen as nothing more than “promoting diversity,” and endorsed by the courts as a “justified” means of achieving what many egalitarians describe as “true equality.”
These examples show that as long as “true equality” is treated as the putative goal, DEI may change its appellation but will not die. In thinking about how to defend liberty from the DEI onslaught it is therefore important to be aware of the overhanging shadow of civil rights. As Thomas Sowell puts it,
…the civil rights premise [is] that statistical disparities are moral inequities and are caused by social institutions, with group characteristics being derivative from the surrounding society [so] it follows that the solutions are basically political—changing laws and public perceptions.
This method—seeking political solutions to problems of inequality—is doomed to fail. It relies on designating special groups by reference to their race, sex, or religion, and conferring rights on the group. Mises makes the point in his book Liberalism that, “Historically, liberalism was the first political movement that aimed at promoting the welfare of all, not that of special groups.” In Misesian liberalism, “every kind of special privilege for particular groups and classes of the population is detrimental to the common good and must be eliminated.”
Yet this is the approach adopted by civil rights. Due to the priority accorded to civil rights, constitutional challenges have limited impact. As illustrated by the Supreme Court affirmative action cases listed on the EEOC website, the interpretation of the civil rights act claims that racial preferences favoring blacks are constitutional because far from undermining equal treatment, they ensure equal treatment by creating conditions where blacks are at the same starting point as whites—thus, they argue that the concept of “diversity” is not unconstitutional.
Caldwell also highlights a deeper problem—declaring civil rights enforcement to be “unconstitutional,” far from resolving the dispute, merely restates the problem in different words. The deeper problem is the contestation between the old de jure Constitution and the new de facto Civil Rights “constitution.” Constitutional lawfare is, therefore, not able to resolve the essential danger. Ron Paul takes a similar view of the threat to liberty posed by civil rights law, arguing that:
The Civil Rights Act of 1964 gave the federal government unprecedented power over the hiring, employee relations, and customer service practices of every business in the country. The result was a massive violation of the rights of private property and contract, which are the bedrocks of free society. The federal government has no legitimate authority to infringe on the rights of private property owners to use their property as they please and to form (or not form) contracts with terms mutually agreeable to all parties.
In that light of the threat posed by civil rights laws to liberty, the only correct response to this unconstitutional and unwise law is to repeal it, and replace it with nothing.
