In just a few short years, the tides have turned against racial preferences, in areas ranging from college admissions to corporate hiring. The Supreme Court has taken a far more skeptical stance toward the practice. The second Trump administration has launched an all-out war on DEI, which stands for the once-popular euphemism “diversity, equity, and inclusion.”
These moves align federal policy with public opinion, the principles of nondiscrimination and meritocracy, and the actual text of our key antidiscrimination laws. But their supporters should ask what comes next—how to maintain these victories in the years and decades ahead as political winds inevitably shift.
In a new report for the Manhattan Institute, I review how we got here and ask what a durable compromise on civil-rights law might look like. I propose ways to fight racial bias, regardless of group targeted, while encouraging the use of transparent, objective, fair processes.
WHITE HOUSE VOWS TO IMPLEMENT ‘SYSTEM OF MERIT’ IN US, DISMANTLE DEI ‘STRANGULATION’
Our core antidiscrimination statutes, passed in the 1960s, clearly prohibited racial discrimination in employment, housing, and programs receiving federal funds (which includes most colleges). They didn’t make exceptions for so-called “reverse” discrimination. It was executive agencies and courts, not the people’s representatives, that took the lead in legalizing such efforts.
In employment, for example, look to the Supreme Court’s decisions in United Steelworkers v. Weber and Johnson v. Transportation Agency, or the Equal Employment Opportunity Commission’s guidance on affirmative-action plans. In college admissions, look to University of California v. Bakke, which began the line of higher-ed cases the Supreme Court essentially overturned in 2023.
Somewhat more complex is the doctrine of “disparate impact,” which the Supreme Court endorsed in its 1971 decision Griggs v. Duke Power, but which Congress wrote into American employment law two decades later. Under this rule, employment tests and other selection methods are presumptively illegal if different demographic groups pass them at different rates—which is inevitable in a world with tragic racial gaps in academic achievement and obvious sex differences in physical strength.
This saddles employers with the burden of defending their tests on a highly technical level amid the stigma of discrimination lawsuits, while praying courts will take their side, even if there is no evidence whatsoever of ill intent. That, in turn, creates a clear incentive for employers to choose their hiring practices based on their racial effects to begin with.
With this history in mind, recent developments in the Supreme Court and the Trump administration are worth celebrating. The Court was right to strike down preferences in higher ed, and the Trump administration is right to enforce the written law against DEI-practicing companies and colleges. Regarding disparate impact, private litigants may still pursue cases rooted in the doctrine, but the Trump administration has publicly vowed to deprioritize such cases in its own enforcement efforts—a defensible approach to a bad and arguably unconstitutional rule.
But let’s not kid ourselves: The political winds will shift back eventually, and victories won through the executive branch are particularly fragile, as any future administration can undo them. Even the balance of the Supreme Court will flip someday. And elites on the left have always been favorable to racial preferences even if the public has not.
MERIT OVER MANDATES: TRUMP SHOULD LOOK TO COLLEGE SPORTS AS HIS WINNING MODEL FOR DEI
Are there ways to make these victories a little more resilient? I propose that the key might lie in a broader colorblindness agenda.
Conservatives have long chafed at affirmative action, for good reason. But a level of anti-Black bias persists today, too, and this may present an opportunity for a lasting compromise.
DEI MADE DIVERSITY A DIRTY WORD. BUT THE CONCEPT MADE AMERICA GREAT
Yes, this bias is far weaker than it once was, and it’s hardly a full explanation of America’s ongoing racial gaps in important outcomes such as earnings and imprisonment. But as I detail in my report, there’s good evidence that some employers still do hire whites more easily than they hire blacks. In decades’ worth of “audit” experiments, for instance, otherwise-similar applicants of different races have applied to jobs to see if employers favor those of one race or another.
Like all social science, this body of work has its flaws. For example, there are signs of “publication bias,” in which some studies with undesirable results are simply never published; also, many studies rely on stereotypically “white” or “black” names to signal applicants’ race, but these names can signal social class as well. But in my view, considering the literature as a whole, this work suggests that being black can still be a moderate disadvantage in some segments of the job market.
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I believe that conservatives’ anti-DEI efforts will succeed best if paired with a sincere campaign to stop this kind of behavior.
In the short term, the Trump administration should be sure to pursue and publicize traditional civil-rights cases amid its war on DEI, to drive home a message that fair, evenhanded enforcement is the goal. In the longer term, Congress—if it’s even capable of passing laws on controversial topics anymore—should fix the statute books. Clearly ban affirmative action and minimize disparate-impact liability in all areas of the law, while funding rigorous audits and other measures to address disparate treatment by race, regardless of which race is targeted. If nothing else, a bill of this nature would force its opponents to explain what’s wrong with colorblind policies backed by thorough enforcement.
For too long, American civil-rights law has actively discouraged meritocratic hiring, while making it effectively legal to discriminate against whites and other “overrepresented” groups.
Good riddance. But bringing the DEI era to an end permanently will require reforms that are both broader and deeper.
