Woke Institutions is Just Civil Rights Law

Why Conservatives Won't (and Can't) Fight for Influence, and What to Do About It. Followup to "Why is Everything Liberal?" and "2016: The Turning Point"

Liberals control institutions because they care more about politics, a disparity that grew larger around 2016. This makes attempts to use government (i.e., bureaucracy!) to take back the culture unlikely to succeed, at least in the short term.

What should conservatives do, then? I’m talking about the anti-woke portion of conservatism, which increasingly seems to be the most animated part of the movement. This post is not meant to be advice for gun people, abortion people, or low tax people; those parts of the right have figured out how to have influence and are doing relatively well.

The good news is that there can be an anti-wokeness agenda, just as easily as there is a low tax agenda and a pro-gun rights agenda.

People have generally misunderstood wokeness as a purely cultural phenomenon. It does have a cultural component, of course, but it is important to also understand wokeness as something that has been law in the United States for the last half century.

The triumph of this ideology over the last 10 years in public discourse is simply culture catching up to law. To reverse what has happened, one needs to know a bit of the history, and how every major institution in the country came to act and think in the exact same way.

The Politics of Hopelessness

It is not an exaggeration to say that the animating focus of the political right today is cancel culture. It was practically the main theme of the RNC in 2020 (here’s a video of speaker after speaker using the phrase), and the 2021 CPAC conference’s motto was America UnCanceled.

I sympathize with critiques of “cancel culture” (or “PC” or “Cultural Marxism” or “wokeness” or whatever you want to call it). Yet it’s clear to me that the political movement devoted to fighting this ideological matrix is quite short on policy ideas.

This critique has been made mostly by leftists, with one amusing chart showing that, while the Democrats were passing the biggest stimulus bill in history, Fox News gave more airtime to the emasculation of Mr. Potato Head. The “cancelling” of Dr. Seuss led to a similarly hysterical reaction.

If the left is going on about healthcare, for example, it’s usually because they want some new bill or policy. But it was difficult to see what those talking about Dr. Seuss or Mr. Potato Head actually wanted.

Here’s an excerpt from the Ezra Klein show in March, where the host asks Ramesh Ponnuru about the “substance free” nature of Republican critiques of cancel culture.

EZRA KLEIN: One thing I think about when trying to evaluate Donald Trump’s success and the lessons of it is that those of us, and this describes you and me, who are policy wonks by inclination and trade, have a tendency to pick through Trumpism and find the policy threads…

But I do think one question is, whether or not — what Donald Trump really understood, was that policy communication wasn’t very important. And that what is uniting Republicans right now at the core of the energy in the party, is a sense of cultural threat…

Like I noticed at CPAC this year, the big conservative conference, its theme is uncanceled America. Right, and say what you will, about your ideas of cancel culture or not cancel culture. Its theme is not health care, the economy, coronavirus, climate change…

It seems cancellation — there’s a lot of Republican energy around the 1619 Project at The New York Times — is that where the energy is and what happens if the energy is on things that really don’t have policy solutions?

RAMESH PONNURU: I did this interview with Senator Cotton and it had been set up as a thing on cancel culture, which is fine, and great, and there’s a lot of interesting stuff to say about it. But I did say, I did ask, “So OK, if this is like this huge problem in America, what are you as the Senator going to do about it?” And he didn’t have much of an answer to that.

And I’m not sure that there really is much of an answer, other than, well, I’m just going to keep saying what I’m saying and I’m in this position where I depend on voters rather than these cultural institutions and so, I have this freedom.

I remember being pretty blown away while listening to this.

You have a liberal pundit asking a conservative pundit whether those on his side have any plans or ideas regarding how to deal with the animating issue in their party. The conservative pundit responds “no, we really don’t have any ideas, and when I asked a Republican Senator whether he actually knew what to do, he admitted that he really doesn't. And it makes sense because his voters don’t really care either but want someone to say the right words.”

Wokeness is Government Policy

Before proceeding, it is important to clarify what wokeness actually is. I’d argue it has 3 components:

1) A belief that any disparities in outcomes favoring whites over non-whites or men over women are caused by discrimination (Sometimes wokeness cares about other disparities too, like fat/nonfat, but those are given less attention. I’m putting aside LGBT issues, which seem to be at an earlier stage of wokeness in which the left is still mostly fighting battles regarding explicit differences in treatment rather than disparate outcomes, although the latter does get attention sometimes.)

2) The speech of those who would argue against 1 needs to be restricted in the interest of overcoming such disparities, and the safety and emotional well-being of the victimized group in question.

3) Bureaucracies are needed that reflect the beliefs in 1 and 2, working to overcome disparities and managing speech and social relations.

Each of these things can be traced to law. The Civil Rights Act of 1964 banned discrimination based on race and gender. While most at the time thought this would simply remove explicit discrimination, and many of the proponents of the bill made that promise, courts and regulators expanded the concept of “non-discrimination” to mean almost anything that advantages one group over another. An important watershed was the decision in Griggs v. Duke Power Co. (1971), in which the Supreme Court ruled that intelligence tests, because they were not shown to be directly related to job performance, could not be used in hiring since blacks scored lower on them, and it did not matter whether there was any intent to discriminate. People act as if “standardized tests are racist if they show disparities” is some kind of new idea, but it’s basically been the law in the United States for 50 years, albeit inconsistently enforced.

Standardized tests aren’t the only target of the doctrine of disparate impact. In 2019 (under Trump), the Equal Employment Opportunity Commission (EEOC) settled a suit brought against Dollar General for $6 million for doing criminal background checks that disproportionately prevented blacks from being hired. The Obama administration went after schools for disciplining black and white students at different rates, with predictably disastrous results. Police departments, fire departments, and other institutions use “gender normed” tests to stop the EEOC and private applicants from suing them for gender discrimination. This is of course completely insane; criminals can’t be relied on to go easier on female cops on account of their sex, but somehow we’ve all come to accept affirmative action policing and firefighting (in 2014, a guy who jumped the White House fence overpowered a female Secret Service agent and made it all the way to the East Room).

As the government invented new standards for what counts as “discrimination,” it was forcing more aggressive action on the part of the private sector. Executive Order 11246, signed by President Johnson, required all government contractors and subcontractors who did over $10,000 in government business to "take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin." The category of “sex” was added in 1967. In 1969, Richard Nixon signed EO 11478, which forced affirmative action onto the federal government itself.

Across the federal government and among contractors, affirmative action assumed that “but for discrimination, statistical parity among racial and ethnic groups would be the norm.”

Government interpretation of the Civil Rights Act also invented the concept of the “hostile work environment.” UCLA law professor Eugene Volokh has written about how this has been used to restrict free speech. Writing in 1997, he pointed out that

The scope of harassment law is thus molded by three facts:

1. On its face, harassment law draws no distinction among slurs, pornography, political, religious, or social commentary, jokes, art, and other forms of speech. All can be punished, so long as they are “severe or pervasive” enough to create a “hostile environment.”

2. The vagueness of the terms “severe” and “pervasive” — and the fact that the law is implemented by employers, who have an incentive to oversuppress — means that the law may practically restrict any speech that an employer concludes might be found by a fact-finder to be “severe or pervasive” enough.

3. Finally, because an employer is liable for the aggregate of all its employees’ speech, wise employers will bar any sort of statement that might, if repeated by enough people, be “severe or pervasive” enough to create a hostile environment.

Putting all this together, harassment law potentially burdens any workplace speech that's offensive to at least one person in the workplace based on [protected characteristics] … even when the speech is political and even when it’s not severe or pervasive enough to itself be actionable.

Federal Racial Policies and the Rise of HR

The rise of HR departments can be directly traced to the federal government’s race and gender policies, which involve direct control of the federal bureaucracy, the “carrot” of government contracts, and the “sticks” of EEOC enforcement and lawsuit threats.

As Harvard sociologist Frank Dobbin wrote in Inventing Equal Opportunity, it was civil rights law that revolutionized the American workplace. Corporations started to hire full time staff in order to keep track of government mandates, which were vague and could change at any moment. There was a sense of “keeping up with the Joneses,” in which every company and institution had to be more anti-racist and anti-sexist than the next one, leading to more and more absurd diversity trainings and other programs.

To decide whether an institution had discriminated against a protected group, courts and regulators would often use a “best practices” approach, meaning that if your competitors adopted the latest fad coming out of academia or the HR world, you felt the need to do the same. As I discussed in my podcast with Jesse Singal, this could help explain the success of the now-discredited Implicit Association Test, along with more modern innovations like Critical Race Theory-based training.

In their paper “The Strength of a Weak State: The Rights Revolution and the Rise of Human Resources Management Divisions,” Dobbin and Jack Sutton discuss the effects of 1960s and 1970s regulations on business practices in not only race policy, but environmental policy and retirement benefits.

The continuing ambiguity of compliance standards led management writers to advocate permanent antidiscrimination offices to track legal shifts. Because the courts were so fickle, Marino (1980, p. 25) advised executives to adopt the “Good-Faith-Effort Strategy,” the heart of which was a special office designed to signal that the employer was making every effort to figure out how to comply. In a Harvard Business Review article, Antonia Chayes (1974, p. 81) noted that “vigorous enforcement” had brought “serious top management attention to antidiscrimination legislation....Now the penalties imposed under employment discrimination laws are seen as posing a severe financial threat.” She advised executives to set up EEO and AA programs that could prevent lawsuits. Meanwhile, compensation of upper managers was being tied to affirmative action performance, and this led them to support dedicated antidiscrimination departments.

In their paper, the authors questioned 279 public, for-profit, and non-profit organizations on what kind of offices they had. One can see the growth of bureaucracy meant to keep up with government regulations over time.

While fewer than 30% of organizations had an HR office in 1955, by 1985 that number had grown to 70%. Although no organization in the study had an Equal Employment or Affirmative Action Office/r in 1967, 40% did in 1985. Later, the terminology shifted away from “affirmative action” to “diversity and inclusion,” but the ideas are largely the same.

Here’s a striking chart from Dobbin’s book showing the growth of personnel management, and the feminization of the profession over time.

Dobbin and Sutton argue that this is a general feature of American law, where the state is selective in enforcement and gives vague guidance that is subject to interpretation, like improving “safety” or fighting “discrimination.” They compare the US to France, where the government is more inclined to just issue direct mandates to businesses, who spend a lot less time and effort on private sector bureaucracy to keep up with how regulators and courts are thinking. The creation of bureaucracy means that it eventually gains its own power base and becomes able to advocate for its own interests. Ironically, if the US had just mandated gender and racial quotas, compliance would’ve been simpler and there would’ve been no need for permanent bureaucracies within each organization with an open-ended mission to stamp out all forms of “discrimination.”

This may explain something else I’ve always wondered about. The US seems to elect some of the most conservative politicians in the Western world, but has perhaps the wokest institutions. Civil rights law makes all major institutions subject to the will of left-wing bureaucrats, activists, and judges at the expense of normal citizens.

Thus, we see that every one of the main pillars of wokeness can be traced to new standards created by regulators and courts, mostly in the 1960s and 1970s but updated over time.

1) The idea that disparities mean discrimination is simply disparate impact.

2) Speech restriction is a hostile work environment.

3) The HR bureaucracy was created to enforce (1) and (2), in a world of vague and consistently shifting government standards to root out discrimination.

Recent controversy over Critical Race Theory training, like the debate about whether standardized tests are racist, misses the larger point that the entire concept of a full-time bureaucracy having to micromanage people’s work lives is a creation of government.

The Case of Coinbase: EEOC as the Media’s Enforcer

In September 2020, Coinbase released a statement saying that it did not want its employees engaging in politics on the job. The media lost its mind, and soon afterwards The New York Times ran a series of articles with the tone of “It’s a nice company you got there, would be a shame if something happened to it.” On November 27, they published a story titled “‘Tokenized’: Inside Black Workers’ Struggles at the King of Crypto Start-Ups.” The piece included accusations like managers “excluded her from meetings and conversations, making her feel invisible” and “managers spoke down to her and her Black colleagues.”

The next month, someone leaked an employee salary database to the NYT showing that women and blacks were paid less at the company. There was no actual evidence of discrimination, as the article admitted, just the “gaps” that often appear significant until they disappear when you control for a few relevant factors. The author went on to encourage regulators and lawyers to go after Coinbase for its “racism” and “sexism.”

“This certainly looks like a company with a problem,” said James Finberg, the lawyer who is leading the two biggest cases on pay bias in Silicon Valley, against Oracle and Google, after reviewing the Coinbase data…

The data analysis from those cases suggests that Coinbase had bigger wage disparities between men and women than either Google or Oracle. At Oracle, the gap between men and women with similar backgrounds and roles was 3.9 percent according to analysis in the court case against the company — less than half as much as the gap at Coinbase.

“If I was running a company and I knew that my numbers looked worse than people being sued, that would worry me,” said Janice Madden, a professor at the University of Pennsylvania who did the analysis in the Oracle case.

The numbers in the Google and Oracle cases controlled for factors, such as experience and education, that were not possible in the Coinbase statistics because of the limits of the data shared with The Times.

In other words, the NYT found that Coinbase’s pay gaps “looked worse” than those for other companies, while acknowledging that those companies controlled for other factors, making the accusations against Coinbase completely worthless. Nonetheless, they published the story, and brought out the lawyers to tell the company that it might be in deep trouble.

Before the story on black employees, Coinbase released a statement saying “We don’t care what The New York Times thinks.” Admirable sentiment, but it has to care what the EEOC, judges, and lawyers think, and they get their information from The New York Times!

Instead of reforming Google, conservatives might think about how to construct an environment in which places that want to be like Coinbase are free to create their own cultures that are politically neutral, or even God forbid, conservative, without fear of government interference.

The strange thing about disparate impact is that gaps exist almost everywhere. Practically any criterion or test one develops is going to have gaps between racial groups and the two sexes. In a world where everyone has standards that create a disparate impact, government bureaucrats have a lot of discretion in who they go after. A corporation that stakes out a position as unwoke–or even tries to stake out a neutral position, like Coinbase did–paints a target on its back. Even if you make a real effort to treat women and blacks fairly, under current law you’re always dependent on liberal judges and regulators seeing things your way.

Wokeness is Both Culture and Government

The “Great Awokening” has been traced to the early 2010s. Since there was no major law passed at the time that coincided with the shift, people have tended to see wokeness as purely cultural. Yet by the time of the Great Awokening, the federal government had been enforcing an extreme form of anti-discrimination law for two generations. Young people have never lived in a world in which every major institution that they interacted with was not assigning them oppressor or victim status and making decisions on that basis.

If you doubt government can have that much of an effect on culture, consider how we classify people by race. Take the category of “Asian American Pacific Islander.” I don’t think anyone seriously believes that such a thing would exist without federal government race classifications. Yet culturally, it took a while for the concept to take off. Here’s Google Books tracking of the use of the term over time.

Hugh Davis Graham’s book Collision Course discusses how the government came up with its racial classification system. “AAPI” was created in 1977 by the Small Business Administration. Up until 1972, no book in the English language had ever used the term “Asian American Pacific Islander.” There was a slight uptick around the late 1970s, before falling again, with the concept really starting to take off around 1989. We thus see government adopting a term that was practically non-existent, and a slight delay before it comes to have cultural relevance.

The data end in 2019, but I would bet we’ve seen a major spike in the last year or so. There’s now AAPI Heritage Month (May apparently), and an organization called “Stop AAPI Hate,” which seems to have taken over the media somehow.

In the book Making Hispanics: How Activists, Bureaucrats, and Media Constructed a New American, UC Berkeley sociologist G. Cristina Mora writes that, before government classification, there had been a “consistent empirical finding” that “Mexican Americans, Puerto Ricans, and Cuban Americans overwhelmingly considered themselves to be separate groups. They ‘didn’t really identify’ with one another, and they ‘didn’t really know what Hispanic meant!’” While the categories of white, black, and Native American make sense in the context of US history, later arriving groups have had their “official identities” constructed in Washington.

This demonstrates two points. First, the power of government to shape culture is quite extensive if it can create identities out of thin air. AAPI is a reductio ad absurdum of this idea; I still can’t believe anyone can utter the phrase with a straight face, much less emotionally identify with the category. Second, there can be a delay between a time a policy is enacted and when its cultural influence is felt in full. Like Scott Alexander, I think it’s clear that the proximate cause of the Great Awokening is the rise of the internet and social media. Yet the ground had been set by generations of government bureaucracy making sure that almost every major institution was subject to the rules of disparate impact, hostile work environment, and the HR revolution.

I don’t think it’s a coincidence that people started saying AAPI after the concept was invented by government. It seems just as unlikely that wokeness, which tracks almost perfectly with innovations in civil rights law, would have existed without the choices made by bureaucrats decades ago.

A Clear Anti-Wokeness Agenda

Low tax people have the Norquist pledge, and the Second Amendment crowd fights background checks, etc.

Yet the anti-woke seem unaware that the things they care about have much to do with policy. They treat every cultural outrage as an isolated event, as just another instance of elites deciding to be “woke,” without such decisions being connected to anything government has ever done.

Getting rid of disparate impact and narrowly defining what “hostile work environment” means or even eliminating the concept entirely will not change the culture overnight. Things have already gone too far, and it took about half a century to go from the color blind ideals most Americans thought they were signing up for with the Civil Rights Act to a world of “birthing parents” and “white fragility.”

Constantine converted to Christianity, which helped spread the religion across the Roman Empire. Yet the reign of Julian the Pagan couldn’t undo Christianization; just because government helped create or spread a cultural phenomenon does not mean that government can likewise rewind the tape to an earlier point in history. Dobbin points out that when the Reagan administration tried to roll back civil rights enforcement, the business community fought back, as many large corporations had come to be staffed by true believers.

The hope would be that, just as the original creation of concepts like “disparate impact” and “AAPI” had eventual consequences few would have imagined at the time, reversing past policies could likewise shape the culture in the long term.

The punchline of all this is that an anti-wokeness agenda would involve, at the very least,

1) Eliminating disparate impact, making the law require evidence of intentional discrimination.

2) Getting rid of the concept of hostile work environment, or defining it in extremely narrow and explicit terms, making sure that it does not restrict political or religious speech.

3) Repealing the executive orders that created and expanded affirmative action among government contractors and the federal workforce.

One reason to be optimistic is that much of this work can be done without having to pass laws, which is almost impossible to do on controversial issues in the current environment, but through the executive branch and the courts. Republican administrations have tried similar things in the past, though usually without making anti-wokeness a real priority.

In Reagan’s second term, repealing affirmative action requirements for contractors was apparently on the table, but the administration backed down in the face of congressional resistance (see also this). More recently, a Washington Post story reporting that the Trump Administration was thinking about undoing disparate impact was dated January 5, 2021 (yes, “January 5, 2021” as in the day before January 6, 2021). Politics is about priorities, and the Trump administration clearly cared little about this issue, despite the president’s voters being animated by concerns about PC.

Conservatives and Learned Helplessness

In other policy areas over which it had control, the Trump administration largely delivered for its supporters: tougher sanctions on Iran to please the war hawks, lower refugee caps for immigration restrictionists, and undoing Obama era gun regulations.

Yet the disparate impact issue was not even being considered until weeks before Trump left office. The Executive Order banning critical race theory training, similarly coming late in the administration, was only signed because Chris Rufo got on Tucker. Conservatives celebrated, without any of them seeming to notice that Trump could’ve literally signed an EO at any time in his presidency to end affirmative action within the federal government and among all government contractors, not just the most absurd form of “anti-racism training” that exists (ironically, during the 2016 primaries Jeb! bragged about ending affirmative action by EO while governor of Florida, though he was hated by the most strident anti-wokes in his party).

Taking apart disparate impact and repealing affirmative action executive orders should be litmus tests for Republican presidential candidates in the same way taxes and abortion are.

Why hasn’t this happened already? Probably because the payoff to fighting wokeness is more long term. People seek immediate gratification; you can change the tax rate or how many immigrants you let in immediately, while it’s hard to convince people to have a political fight today in the hopes of having an uncertain effect on culture years or even decades down the line. Moreover, it’s hard work to go to war with an entrenched bureaucracy that has the media completely on its side, especially if you haven’t explained to your voters why doing so is necessary. Nonetheless, I’m convinced there is no short-cut to changing the culture.

Understanding that wokeness is law may be able to help us get at the question of why conservatives are less motivated to be politically engaged than liberals. It’s not an exaggeration to say that conservative views on race and gender are often of questionable legality in the workplace. Even if conservatives cared as much as liberals, the state is always there with its thumb on the scale, having helped construct bureaucracies inside and outside government that create incentives against expressing certain beliefs or building institutions that are managed in ways that offend left wing officials and activists.

The result has been a kind of learned helplessness. Not only do conservatives feel like they can’t influence institutions, but Republican leaders haven’t even made the argument that they can ever actually change things. As the interview between Ponnuru and Cotton quoted above illustrates, the message has been “vote, give us your money, and don’t think too hard about whether we’re doing anything about your concerns.”

This is one reason I believe QAnon took off. People need to believe victory is possible to be motivated to act. “Trump is secretly controlling everything and will soon execute the all-powerful pedophiles” is at least a theory. For conservatives not crazy enough to believe that, all they get from their leaders is a never ending list of woke outrages without any plausible case of how things might get better.

Rolling back overbroad interpretations of the Civil Rights Act and previous Executive Orders won’t change the culture overnight for a movement that has let things get this far. But that is the obvious place to start, and would at least give conservatives a chance in the fight for institutions.

[Note: This is the third in a series of articles on woke institutions. See the previous articles “Why is Everything Liberal?” and “2016: The Turning Point.”]