It is useless, for now, to predict where the six-justice conservative majority on the Supreme Court may be heading. But one possibility is worth noting: If the majority holds firm on just a handful of constitutional questions, it can decisively defeat what I call the coercive equity regime. The Court has an opportunity not only to halt the rise of wokeness but to dismantle its legal foundation. America’s traditional constitutional order can then be restored to vitality.
The Court can perform this rescue operation without any rethinking of constitutional theory and even without a reliable majority on most questions of constitutional law. I leave aside the stimulating debates over whether to abandon or modify originalism. My aim in this essay is narrow. I wish only to show that a conventional right-wing jurisprudence—whether described as “originalist” or not—on a select number of questions is a mortal threat to the regime. The only question is whether the conservative majority will act decisively before it is too late.
To describe Americans as living under a “regime”—like Eastern Europeans living under communism during the Cold War—is to court dismay and disbelief. After all, the constitutional order that Americans founded in the eighteenth century remains recognizable. The forms of government—the periodic elections, the divided branches, the flag and seal—persist. The institutions of civil society—churches, schools, businesses, and associations—remain nominally independent of the state. No one event—an invasion, a coup, or victory in a civil war—marks the ascendancy of a new system of rule (although the late toppling of the old order’s monuments makes one wonder). For these reasons, a powerful faction of American conservatives dismisses critics of the regime as dangerous catastrophists.
At the same time, Americans endure affronts to their heritage that not long ago would scarcely have been imaginable. Mobs desecrate statues of Christopher Columbus, George Washington, Thomas Jefferson, and Abraham Lincoln. Hospital systems propose to withhold life-saving medicines based on race. The vice president celebrates political violence (and her administration’s Department of Justice seeks leniency for homicidal arsonists). Scholars submit professions of loyalty as a condition of hiring or advancement. Public school teachers urge children to sterilize themselves and mutilate their sex organs. Virtually every institution in American life boasts a permanent “diversity, equity, and inclusion” bureaucracy. The United States government flies the rainbow and Black Lives Matter flags and funds the advance of woke ideology abroad.
These developments follow from the embrace of a new moral principle unknown to generations before the 1960s. In its most benign form, the principle is as follows: Any disparity in outcome between groups, whether defined by race, ethnicity, religion, or sex (or more recently, sexual practices and gender identification), is evidence of injustice. But that formulation turns out to be inadequate. The overrepresentation of black people in the National Basketball Association or of Indian Brahmins in medicine attracts neither comment nor criticism. Instead, the evil that the principle demands to be corrected is any over-representation of the characteristics of any historically European population—heterosexual, white, and Christian. The demand for reduction in the power, status, and representation of such Americans we may call the “principle of equity.”
The principle of equity has not just advanced as an idea but become institutionalized. Public schools teach critical race theory. Universities boast multiple grievance studies departments and pledge tens of millions to increase faculty diversity, while their administrators—many of them answerable to student demands for adherence to the principle of equity—outnumber faculty. On his first day in office, President Biden ordered equity audits of every federal agency. The principle of equity, in short, is not just a moral aspiration. It is the fountainhead of a sprawling network of power. That network we may call the equity regime.
Mercifully, the equity regime is relatively mild. It will not soon be constructing a gulag to house dissidents. Nevertheless, like communism, which sought equality of material wealth, equity, which seeks equality of outcomes for those in protected classes, can be achieved only through coercion. Indeed, socialism is far less utopian than the doctrine of equity. Zealous intentional communities, from the Benedictines to the Shakers, can achieve common ownership of property. But no society has ever eliminated disparities among racial and ethnic groups or between the sexes. As Thomas Sowell has documented, set patterns of achievement and social capital persist among different populations in an extraordinary variety of political and social circumstances. Whatever the causes, which are probably deep and intractable, disparities among different groups have outlasted all the policies—from affirmative action and social handicaps to expulsion, dispossession, and massacre—ever adopted to erase them.
Only the equity regime’s hypocrisy prevents the principle of equity from taking more extreme forms. By the principle of equity, for example, colleges and professional schools should suspend the admission of whites for at least a generation, businesses should declare a moratorium on white male advancement, judges should favor the party who has more “intersectional” credit, and a special racial tax should be imposed to fund reparations. So far, the regime has yet to go to those extremes, but it is hard to identify a principled reason why not. (Ibram X. Kendi proposes a constitutional amendment that would indeed impose antiracist totalitarianism.) The doctrine of equity is perhaps silently held in check only by the many powerful white people—such as the Bush, Biden, Clinton, and Sulzberger clans—who, even as they profess support for the equity regime, would lose their own power and privileges if the regime consistently sought to achieve its goals.
Inevitably, however, the failure of the regime to realize the principle of equity gets noticed. It takes but one event to catalyze the next lurch toward the obliteration of the old American order. In 2020, after George Floyd died while in police custody, a nationwide orgy of arson, murder, and looting ensued. The ruling class did not condemn the violence or aid its victims. On the contrary, corporations and universities pledged billions more dollars for the cause of equity. A year later, their candidate for president announced that he would appoint a black woman to the Supreme Court—a wonderfully explicit commitment to discrimination on the basis of race and sex.
One cannot predict what, exactly, the coercive equity regime will target next. A decade ago, few imagined that biological males would find glory in humiliating girls in sports. After all, just a generation earlier, the principle of equity had forced the cancellation of male athletic programs (such as wrestling) on the theory that girls and boys are equally interested in sports and therefore should be able to join the same number of sports teams. Now it’s the turn of women’s sports to be the victim of the principle of equity. Likewise, ten years ago, it seemed unlikely that uttering a moral sentiment as old as the Axial Age—“all lives matter”—would be met with demands for struggle sessions and groveling apologies. The next manifestation of the principle of equity is arbitrary, as parents of transgender children are discovering. But that the next one is coming is certain.
Vast and inexorable as the coercive equity regime may appear, it is vulnerable. As can occasionally be seen, a willingness to exert political power can halt its progress. Thus parents can confront school boards that support shaming students for their whiteness, and voters can demand that prosecutors and politicians incarcerate criminals (regardless of race) and keep streets and neighborhoods safe. Americans can and should resist this or that extension of the principle of equity where they can.
Meanwhile, one institution—the Supreme Court—has the power to defeat the regime altogether. To do so, the Court need only follow through on a small number of constitutional reappraisals of civil rights doctrine that it developed in the decade and a half after the passage of the Civil Rights Act in 1964, reappraisals that already enjoy wide acceptance in the conservative legal establishment. In other words, no radical overhaul is needed. The Court, aided by the work of activists who can bring the necessary cases and controversies, need only do what conservatives for decades have hoped their pipeline of favored nominees would accomplish.
Hostile work environment. Under the theory of hostile work environment discrimination, an employer can be held liable merely for tolerating what anyone in a protected class might deem offensive. To be sure, a plaintiff can prevail only if the offensive conduct is severe and pervasive. But those standards are vague. A prudent corporate executive seeks to avoid liability, and this means adopting a zero-tolerance policy that prohibits any speech or conduct that could offend. Further, to bolster their bona fides should they be sued, employers make sure to adopt the latest ideological fashions. These business imperatives in turn require human resource departments that formulate and enforce diversity, equity, and inclusion guidelines. The result is that it is all but illegal to permit discussion of, say, the latest book by Charles Murray, and all but mandatory to endorse, say, the Black Lives Matter movement.
In short, hostile work environment law both promotes woke ideology and proscribes dissent. The Supreme Court can eliminate this systematic bias by holding that hostile work environment doctrine violates the constitutional right to free speech. Such a holding would not be especially radical. In the public school and university settings, two circuit court cases have held that anti-harassment guidelines conflict with free speech rights. Even the once–notoriously progressive Ninth Circuit (though speaking through retired Reagan appointee Alex Kozinski) noted that an employer’s speech “is entitled to significant breathing space before it will be deemed harassment.” A conventionally conservative Supreme Court would be expected to hold that hostile work environment law violates the free speech clause. To be effective, the Supreme Court’s holding must limit the power of Congress, state and local governments, and administrative agencies to revive hostile environment claims. A case must be brought where hostile work environment guidance can be held facially invalid.
Disparate impact. The fons et origo of the equity regime is the theory of disparate impact liability in employment discrimination cases. First conjured by the Supreme Court in the 1971 case of Griggs v. Duke Power Company, disparate impact law allows a plaintiff in an employment discrimination case to prevail without evidence of discriminatory intent, simply by showing that a job requirement or hiring procedure has a disparate impact on the plaintiff’s protected class. Put in today’s parlance, disparate impact law assumes systemic racism.
In theory, a disparate impact claim does not automatically prevail, for the law allows businesses to defend a practice by proving “business necessity.” But that is a costly and uncertain prospect. For businesses, the practical import of disparate impact is clear: Any failure to achieve proportionate outcomes among groups is an invitation to a lawsuit. To avoid disparate impact claims, employers must monitor the race, ethnicity, sex, and sexual orientation of their employees to keep numbers up for those in protected classes. To be sure, overt discrimination remains technically unlawful, which partly explains why employers shroud their practices in the latest rhetoric of inclusion recommended by a permanent staff of “diversity” professionals. Nevertheless, achieving diversity means discriminating on the basis of race and ethnicity—the very practice Americans thought they had outlawed with the 1964 Civil Rights Act.
Justice Thomas has argued that Griggs should be overturned. Indeed, but the Court must go further. As Justice Scalia wrote in a 2009 concurrence, the day is coming when the Supreme Court must decide whether the government, through disparate impact law, can effectively compel employers to discriminate on the basis of race or other ascriptive characteristics. The Supreme Court should not shrink from providing an answer. As soon as the occasion arises, it should hold that disparate-impact liability violates the Fifth Amendment’s guarantee of equal protection. To defeat the equity regime, disparate impact must not only be purged from civil rights law. It must be constitutionally cremated and buried, never again to be resurrected by Congress or government agencies.
Race-conscious admissions. The Court’s tortured affirmative action jurisprudence has simultaneously legitimized the doctrine of equity and revealed its absurdity. Almost twenty years ago, Justice O’Connor’s majority opinion in Grutter v. Bollinger upheld race-conscious admissions on the theory that racial diversity in the student body serves a compelling state interest. (Before its elevation into a sacred value, “diversity” was one justice’s makeshift attempt in 1978 to rationalize racial discrimination in university admissions.) But O’Connor added that race-conscious admissions “must be limited in time,” and announced that the majority expected racial preferences to be unnecessary after twenty-five more years.
We are now nineteen years in, and racial gaps in test scores and GPA still show no sign of narrowing. Grutter itself was decided forty-two years after affirmative action had begun. Whether cynically or sincerely, O’Connor’s opinion postponed a reckoning on racial discrimination for one more generation. The ongoing failure to achieve proportionate outcomes among all groups—not just in universities, but in any domain of life—pointedly demonstrates the folly of trying or expecting it ever to happen. Why aren’t more firefighters women? Why aren’t more men nurses? Why are there so few black tax lawyers? And what about ensuring roles for transgender persons in movies?
In the pending cases in which Students for Fair Admissions is suing both Harvard and the University of North Carolina, asking the court to overturn Grutter, the Supreme Court must do more than reject “diversity” as a legitimate pretext for discriminating on the basis of race or other characteristics. Surely the Court knows that striking down affirmative action as unconstitutional will provoke resistance on a scale to dwarf the “massive resistance” attempted in the wake of Brown v. Board of Education (1954). Segregationists in the 1950s represented but one divided region of the country, a region held in disdain by the richest and most powerful people of that era. By contrast, the practitioners of affirmative action control every powerful institution in America. To counter the inevitable backlash, the Supreme Court must give Americans the weapons they need to stop quota-driven discimination altogether.
The crucial move is to elaborate a burden-shifting framework that will make it impossible for universities to camouflage the practice of discrimination. First, the Court should hold that, in light of decades of covert discrimination, any concealment or obsfucation of admissions criteria will be treated as conclusive evidence of a constitutional violation of equal protection (or in the case of a private university receiving federal financial assistance, a violation of Title VI of the Civil Rights Act). For a university to defend against a claim of an equal protection violation, the Court should hold that it must disclose how many slots are available for which categories of admission, such as legacies, athletes, residents of particular areas, and children of major donors, as well as the academically gifted. Likewise, a defense must also require disclosure of what facially race-neutral methods, criteria, or formulae are applied to fill each category and the class as a whole.
But mere disclosure of targets and methods is not enough. Once a university discloses targets and methods, the Court should hold that a plaintiff has a prima facie case of discrimination if a university’s actual admissions results differ materially from the results that would be achieved if the purported methods were applied to the population at large. With a prima facie case established, the university can then seek to justify the deviation. Consistent with the Court’s jurisprudence that protects fundamental rights from violation, any justification must be strictly necessary and narrowly tailored to achieve a superior educational outcome.
This burden-shifting framework would have the effect of making it all but impossible for universities to discriminate in admissions on the basis of race or any other factor. Even the dishonest and covert discrimination of the past fifty years would be untenable. Moreover, the framework would be a massive embarrassment to the equity regime. It would force out into the open the reality that groups differ in performance. It does not even matter what metrics the universities choose. They could abandon IQ substitutes like the SAT and admit students based on skill at playing hopscotch—still, group differences would inevitably emerge. The requirement that actual admissions results match the distribution of sought-after talents and characteristics in the population at large would effectively elevate natural inequality—a reality that the Founders and our constitutional order once took for granted—into a constitutional principle.
Let utopians remain free to pursue their dreams of equality, as Robert Owen and others did theirs in the nineteenth century. But do not let them continue to employ the coercive powers of the state to impose their vision on others. Many say that the rising generation demands measures to ensure diversity, equity, and inclusion, and that institutions and companies that hope to recruit the best and brightest must comply with the equity regime. Fine, let woke college students make demands. But handing them the coercive power of our rule of law has been among the most irresponsible acts of recent decades. By requiring universities to justify in court any deviations from measurable inequalities, the Supreme Court can not only end government-protected racial discrimination but permanently discredit the doctrine of equity. Perhaps, after twenty-five years, it will no longer be necessary to continue the burden-shifting device. Only time can tell.
More radical theories. One can certainly imagine a more radical Court that is willing to take constitutional theories now considered “off the wall” and affix them to the wall of legitimate interpretation. Freedom of association, for example, is perhaps the most vital freedom of all in the American tradition of ordered liberty, yet it has been given short shrift by the Supreme Court, apart from a narrow category of expressive association. To take another example, an expansive definition of “religion” for establishment clause purposes would imply that public schools cannot teach divisive secular religions such as wokeness. A Supreme Court that manifested a will to lead our country away from its current path to woke tyranny—a will that we very much need right now—could recognize freedom of association as a fundamental right protected by the Fourteenth Amendment’s long-dormant Privileges or Immunities Clause, and it could use the Establishment Clause to cast doubt on the constitutionality of governing schools. Perhaps this seems a reach. But those who recognize the dangers posed by the coercive equity regime can certainly dream.
Americans often take solace in the thought that extremism must eventually bring a healthy reaction. “The pendulum will swing back,” they say. They assure themselves that what cannot go on must eventually come to an end. In reality, oppressive regimes can last indefinitely. The caste system in India—like wokeness, a sacralized system of subordination—has persisted for thousands of years. The doctrine of equity has already shown exceptional durability. For three generations, it has only advanced, paused, and advanced again. This is not because the doctrine of equity is popular. Given the chance, voters have rejected it, even in liberal bastions such as California. Rather, the doctrine of equity grinds on toward complete dominance because it has been awarded tremendous legal power to destroy dissenters. To defeat it will require leadership and the exercise of political power. The Supreme Court has the power. It only has to use it.
Frank Resartus teaches at a law school in the Northeast.
Image by Epsos via Creative Commons. Image cropped.
