Anti-discrimination for “majority groups”?

Since January 20, the Trump Administration has taken a series of bold steps in a raft of anti-DEI executive orders. One important strategy it is using is to harness civil rights law to combat “illegal discrimination and preferences,” a term used repeatedly in the orders. What that refers to is above all affirmative action hiring and university admissions “preferences,” long-standing practices that are now being deemed  “discrimination” against whites, males, etc., by the federal government and its wide-ranging and powerful civil rights apparatus.

This development is only the most prominent example of a new and important trend in civil rights law that has emerges in the past few years. In a recent essay for the James G. Martin Center for Academic Renewal, WAS member Thomas Powers summarizes several different legal developments that follow a similar logic.

The most important change along these lines was of course the Supreme Court’s 2023 decision, Students for Fair Admissions (SFFA) v. Harvard. That case put an end to the higher education admissions “diversity” loophole that had long weakened and undermined the high court’s Equal Protection Clause jurisprudence (commencing in the famous Bakke decision in 1978).

The political and legal change wrought by the SFFA decision has been felt not only in the educational arena, but also, and perhaps more strikingly, in the context of public and private employment.

Two big legal wins by the Wisconsin Institute for Law and Liberty (WILL) in the federal courts show how powerful the SFFA precedent is proving to be in fighting race-based preferences. WILL’s successful challenges to major federal affirmative action programs, above all the federal Department of Transportation’s “Disadvantaged Business Enterprise” program and the Commerce Department’s Minority Business Development Agency, are major steps on this new path.

Powers traces out a number of other ways that civil rights law is being reworked to combat policies that benefit some groups at the expense of others. One of them was highlighted recently here on the WAS blog, the use of employment discrimination lawsuits to combat anti-white “harassment” in so-called diversity training and the like.

One might say that all of the kinds of efforts Powers surveys redeploy civil rights law on behalf of “majority groups.” If that term seems awkward, it has the advantage of being the term of use in employment discrimination law itself—referring to cases involving “that unusual employer who discriminates against the majority.”

Powers concludes by briefly raising some questions about this trend in civil rights law. As he says, “this new tack suggests that the civil rights mindset is now our only star and compass when it comes to thinking about group politics. There are good reasons to wonder about whether that is a good thing.”

The Trump administration’s work along these lines suggests that these questions will be with us for the foreseeable future. Do we stand at the beginning of a new chapter in the history of the American civil rights revolution?