Richard Hanania, Substack, September 6, 2022
In The Age of Entitlement, Chris Caldwell criticizes Republicans for having been unable to “acknowledge (or even see) that the only way back to the free country of their ideals was through the repeal of the civil rights laws.” In an interview after the publication of his book, he acknowledged that the Civil Rights Act wasn’t going anywhere, but said he wasn’t sure what to do instead.
Fortunately, things aren’t nearly that hopeless. Since 1964, there have been a series of laws, court cases, and government regulations that have brought us to the point where wokeness dominates everything. Knowing a bit of the history here is worthwhile because it can show what is possible short of repealing the law that, as Caldwell writes, in effect replaced the old Constitution.
In fact, a previous generation of conservatives at the pinnacle of power, namely, the Burger Court and Ronald Reagan, had actually won a major battle in the war on wokeness in the 1980s. This contradicts the New Right narrative that critiques “Zombie Reaganism” and argues Republicans have erred in blindly following a policy agenda that was designed to deal with the problems of a completely different era (see here, here, here, and here).
Had Ronald Reagan gotten his way, in recent decades we wouldn’t have had the war on men’s college sports; mandatory affirmative action being imposed on government contractors; the federal government micromanaging the sex lives of college students; sexual assault kangaroo courts and expanding Title IX offices on university campuses; Department of Justice investigations that operate on the assumption that police are practicing discrimination if they arrest a disproportionate number of blacks; transgender sports and bathroom policies being made by the Department of Education; and local school districts being bullied by Washington for falling short of “equity” standards in areas like gifted programs and student discipline. Far from having nothing to offer conservatives today, the battles of Ronald Reagan remain relevant for understanding how everything became woke and what to do about it.
“Racist” Policing, “Racist” School Discipline, and Sports Equity
Before getting to Reagan and the contemporary relevance of the issues he faced, it is necessary to have some idea of how civil rights law works and what it does. While a full examination of the topic is beyond the scope of this essay, learning a few legal basics can go a long way in providing insight into the issues involved.
For our purposes, there are two important legal provisions to understand. First is Title VI of the Civil Rights Act of 1964. Here’s what it says.
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
Interestingly, there was no prohibition on sex discrimination in Title VI, as there was in Title VII, which dealt with employment. Title IX of the Education Amendments of 1972 made gender discrimination in schools and universities a federal issue. Modeled on Title VI, it reads as follows, with the parts different from its predecessor in italics.
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
Today, Title VI and Title IX are two of the main tools used for forcing wokeness onto institutions, particularly schools and universities, and this is usually done well outside the rulemaking process.
Title VI is why the Obama administration could go after schools for disciplining white and black students at different rates. You see, elementary and high schools receive federal money, so they can’t discriminate. This means that if more black kids get detention, that’s something the feds need to look into. The same logic applies when Title VI is used to go after local police departments for supposedly racist practices, which to liberals means stopping and arresting blacks at higher rates than whites. The Department of Education has investigated programs for gifted students on similar grounds. In 1974, the Supreme Court deferred to the Department of Education in finding that not providing bilingual education to the children of immigrants was also a violation of Title VI, although later decisions made it difficult to enforce this invented right.
Through Title IX, the federal government has been able to claim jurisdiction over sports and sex at schools and on university campuses. The provision is administered and enforced through a section of the Department of Education called the Office of Civil Rights (OCR). Of course, nothing in Title IX mentions athletics at all, and college sports do not get federal funding anyway. Nonetheless, in 1975 OCR promulgated a rule that said schools needed to “effectively accommodate the interests and abilities of both sexes.” At the time, this arguably meant that colleges and universities needed to provide men and women similar opportunities in ways that take into account the differences between them.
The Civil Rights Restoration Act of 1988
None of this had to happen. In 1984, the Supreme Court decided the case of Grove City College v. Bell. Almost all education establishments receive some funding from the federal government, if not in research dollars then in student grants and loans. Recall that Title IX bans discrimination in “any education program or activity receiving Federal financial assistance.” Did that mean that the federal government could enforce its “non-discrimination” standards across an entire institution as long as something having to do with that institution got money from Washington?
The Supreme Court ruled that it could not. The Department of Education had argued that Title IX covered practically everything at Grove City College, a small liberal arts school in Pennsylvania, from faculty hiring and promotions to how it treated its female students. The Supreme Court disagreed. Under its decision, giving grants to students meant that the federal government could make sure a university wasn’t “discriminating” in its financial aid office. But the Supreme Court found “no persuasive evidence suggesting that Congress intended that the Department’s regulatory authority follow federally aided students from classroom to classroom, building to building, or activity to activity.” Financial aid for students could not be a backdoor to regulate an entire school or university.
In response to this ruling, the Reagan administration largely shut down investigations of athletic programs, and scaled back enforcement of anti-discrimination claims on college campuses more generally on the grounds that it lacked jurisdiction. Had Grove City stayed in place, all the Title IX innovations of later decades in the areas of sports, sexuality, and trans issues would have been impossible, or at least much more difficult.
Unfortunately, four years after that decision, Congress overruled the Supreme Court when it passed the Civil Rights Restoration Act of 1988. This statute clarified that Title VI and Title IX meant that any institution receiving federal money must comply with civil rights law in all areas of operation. The bill had nearly unanimous support among Democrats in the House (242-4), with only a slight majority of Republicans voting against it (73-94). Senate Republicans were even worse, with a majority voting in favor (27-14). These totals accurately represent the positions of the two parties on civil rights issues during the 1980s: Democrats united in more strenuous enforcement, Republicans about evenly split.9
Ronald Reagan vetoed the bill, and in doing so cited the threat to religious liberty that it posed and his opposition to expanding government power.
In the end, Congress had the votes to overrule the veto. Title IX enforcement would not only go back to what it was but ramp up and become ever more intrusive, as the mainstream Left turned more radical in its ideas about gender, which it would force onto higher education and even local school districts. Had Republicans united to uphold Reagan’s veto, as they would be united on major civil rights legislation in later decades, OCR would likely never have had the opportunity to begin micromanaging athletics programs and the sex lives of college students. The implications of Grove City for Title VI were less clear than for Title IX, but given the similarity in language between the two provisions, the ruling almost certainly would have had the same effect in that area.
Presidents don’t veto a lot of bills. Not including pocket vetoes, Ronald Reagan vetoed 39 in his eight years in office, of which nine were overturned. His fight against the Civil Rights Restoration Act was therefore one of only a handful of cases in which Reagan disagreed so strongly with Congress that he was willing to take a stand in what turned out to be an embarrassing loss for his administration.
Liberals are of course never finished in trying to expand civil rights law, and Title IX is no exception. Recently, a district court ruled that Title IX even applies to private schools that don’t take any federal money because they get tax free status, which is in effect a subsidy (see thread). Although this ruling only applies to schools in Maryland, if other courts follow the decision it could threaten Hillsdale and the University of Austin – which do not even take financial aid for their students so that they can avoid federal compliance issues – as well as practically every private primary and secondary school in the country. Such an understanding of the law would mean that parents no longer have an “escape hatch” through which to at their own expense get their kids out of the clutches of civil rights activists and bureaucrats. Conservatives currently holding the Supreme Court probably means there are limits to how much traction this idea can get. Nonetheless, the Maryland decision stands as a reminder of what liberals would be doing if they controlled a larger share of the judiciary. None of this would even be possible without the Civil Rights Restoration Act.
They’re not done with Title VI either. The Biden administration has started talking about “environmental justice,” which in future years could mean bringing the disparate impact standard to things like federally funded public works projects. You can see civil rights law as the pipeline that takes ideas out of academia and activism we would otherwise be able to ignore and transforms them into public policy.
Reagan Also Tried to End Affirmative Action in Government Contracting
If that’s not enough for you, Ronald Reagan also tried to end race and sex preferences in government contracting. In 1965, President Johnson signed Executive Order 11246, which mandated contractors “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.” Of course, in the Orwellian world of civil rights, “equal treatment without regard to some protected category” always means the opposite of what it says, and this would prove no exception.
Relying on the Johnson Executive Order, it was the Nixon Labor Department that started forcing affirmative action onto construction projects, first in Philadelphia, and then nationwide. Hilariously, this was some kind of plot to split the Democratic Party by pitting organized labor against civil rights organizations. A few years later, seemingly without Nixon knowing what was going on, the Philadelphia Plan was followed up in 1971 by Revised Order No. 4, which expanded regulations beyond the construction industry to all contractors and subcontractors doing business with the government beyond a minimum threshold. This forced such businesses to adopt goals and timetables whenever women or minorities were shown to be “underutilized” relative to the relevant labor pool.
If you’re a contractor of sufficient size now, the Labor Department provides detailed requirements regarding how you must classify your employees by race and sex, make sure designated minorities don’t face “harassment,” report to the government where you fall short in achieving demographic balance, and provide a plan to do something about it. As a result, businesses now exist that specialize in “affirmative action compliance.” Refuse to go along – say because you believe in color-blindness – and you can be fined or barred from government contracting. This has no small effect, as affirmative action regulations end up reaching about a quarter of the private sector workforce.
In 1985, Attorney General Ed Meese drafted an executive order that would have prohibited the Department of Labor from using statistical evidence to charge contractors with discrimination. This would have all but eliminated the “goals and timetables” requirements. Conservatives saw that “with the stroke of a pen…President Reagan could deliver a crushing blow against quotas and put an end to the government’s policy of forcing firms with federal contracts to practice racial discrimination.” The administration was internally divided over the issue, with Secretary of Labor Bill Brock arguing for a small revision to EO 11246 that would emphasize the color-blind language of the Civil Rights Act.
Reagan unquestionably sympathized with the more strenuous critics of affirmative action. Yet in early 1986, as a result of media coverage of the debate going on within the administration, 69 Senators, including Majority Leader Bob Dole and 24 other Republicans, and 180 members of the House, sent a letter urging the president not to sign Meese’s executive order. Faced with such overwhelming political pressure, Reagan punted on the issue, and the status quo has remained in place ever since. Despite most Americans opposing racial quotas, a bipartisan cartel made sure that affirmative action in government contracting survived its most serious threat since it was created by the Nixon administration.
Why History Matters
The story of Ronald Reagan and his political battles is valuable today because it suggests intermediate steps between “doing nothing” and “repealing the Civil Rights Act.” It’s great that Chris Caldwell has gotten conservatives to understand the connection between our legal system and wokeness as a cultural phenomenon. However, if you think everything bad that has happened since 1964 naturally came from the Civil Rights Act, and everyone agrees that you can’t repeal that law, then there’s really nothing that can be done.
As it turns out, there have been other major legal and political battles over the last half century, some of which if they had gone differently could have struck a blow against wokeness. What’s frustrating about the Civil Rights Restoration Act is that you had conservative justices on the Supreme Court willing to push back against some of the extreme policy choices of the 1960s and 1970s, and a president who was on the same page. Unfortunately, he was betrayed by moderates in the party. The triumph of wokeness as law is ultimately their fault, not Ronald Reagan’s.
It’s too much to ask politicians to repeal the Civil Rights Act. But conservatives can work to exhort at least two promises from their politicians: trying to repeal the Civil Rights Restoration Act of 1988, and support for amending Executive Order 11246 to prohibit affirmative action in government contracting instead of requiring it. Instead of burying Reagan, the establishment and the New Right should come together under the banner of continuing his legacy.