I don’t think this is something that’s really fixable institutionally. Thus I advocate lawsuit after lawsuit with the goal of basically bankrupting and hence destroying such institutions. Think of it as the sequel to the dissolution of the monasteries. Fine them several hundred billions, and when they keep offending, fine them three times as much next time. I suppose it’s conceivable that they’ll genuinely repent, but frankly, I’d rather they didn’t.
Fine them the max for every email, memo, HR doc, and advertisement discouraging merit-based applications, throughout every search, going back to the '90s. Fine every one of the craven sheep-schools that leapt onto the bandwagon; go after them institutionally and individually, with prison terms for the worst of the worst ringleaders and layers of six-figure admin enforcers. Obliterate the corrupt Boards of overseers and trustees.
Burn not-so-higher ed to the ground and then salt the earth.
These are bad people who should never work again in any position of authority or influence, much less prestige. Even if some weren't already weak and vicious, their time in the system enticed them, rewarded them, and conformed them to become their worst selves.
For years, I sponsored a 2 or 3-year postdoc position in Classics at my alma mater. Four or five years ago, I became uncomfortable with the required statement on the applicant's commitment to DEI, and I spoke to the department chair about it. He said it's a college requirement for faculty searches, but the department really doesn't take it into account when making the hiring decision. I said OK.
About two years ago, I decided that wasn't good enough. So I told the same professor that they needed to put his response in writing, in the job description. Something like, "We do not take your DEI statement into account for our hiring decision."
"Tom, we obviously can't do that."
"Why not? It's the truth." The conversation continued...
I no longer sponsor that postdoc.
Thinking about it a bit more, I agree with Jehu, that this situation is not fixable institutionally. Even though many faculty members might oppose DEI on the merits, it's too entrenched, perhaps because for years they have explicitly avoided hiring anyone who is not a true believer.
Exactly. The fact that so many are brazenly keeping the same people, policies, and practices, only changing the name from DEI to "Belongingness" or some such new gobbledygook, shows that, two years in, the ivory towers are unbreached philosophically.
I'm all for prosecutions of any and all for their blatantly hostile environments (read the docs, the emails, HR trainings; these are not good-faith efforts); however, the mode of enforcing meaningful change requires creating the effect of sunlight on USAID and e.g., the SPLC: No, you do not get to preen and posture against civilization or actively work against civilization / rule of law AND extract massive money from civilization's productive citizens, to dabble in whatever crazy current thing lately strikes your fancy. Turn off the spigot and let's see who survives.
Tax-exempt status for colleges and universities needs serious re-evaluation, just as for so-called 'N'GOs & 'non'profits. Earn your way without public subsidies, or enjoy the dustbin of history.
About three years ago, our faculty had a discussion about an upcoming search, for which I was the committee chair. This was in the early stages when we were talking about what we wanted and needed in a new hire. We are a majority-female faculty, but everyone was white at that point (we have since hired an Asian woman).
Several women said "We can't hire another white person". I said, "So you want to discriminate by race?" They said "Yes", enthusiastically.
But I'm sure that didn't make it into the meeting minutes.
Nobody in academia seems to care at all about this problem. After all, it was a "remedy". I couldn't help think: now YOU'VE got your safe white-person job, but to hell with other white person job-seekers. Didn't cost them a thing, but it cost others hugely.
A few years back, the organization where I was employed hired a consultant (of course) to do some DEI "work" across our international & globally dispersed teams. One of the highlighted comments in her "report" back to the organization was: Too many white women on staff (roughly five of roughly 40 employees, almost all admin). How warm and inclusive!
This is certainly an interesting development. I'd be surprised if significant actions are required by the EEOC's new emphasis.
"Large corporations" and "Prominent universities" that have contracts with the US government have been required to have Affirmative Action plans for the last 55 years or so. These plans are required to establish numerical targets by race and sex for every category of employee. The employers are required to make "good faith efforts" to meet the targets. In practice, this requires hiring qualified minority candidates in order to meet the targets. If the employer establishes qualification criteria with disparate impacts, they can be sued by disappointed applicants, not just by the government. The Affirmative Action plans are not public documents, but must be disclosed to employees on request. Except for the actual targets, which can be kept secret by the employer. I don't know whether discovery in a lawsuit could require disclosure of the targets.
If the government now tries to overturn Affirmative Action plans, or their implementation, they leave employers in a no-win situation. Failing to meet the hiring targets (or quotas, if you will) leaves the employer vulnerable to enforcement action and lawsuit. Trying to meet the targets can also leave them vulnerable to enforcement action and lawsuit.
I think it's probably good to get the gory details into public view. The existence of the quotas, and the mechanics of selection processes, have been kept out of view, because there are few in the public who would support the system we have now. I don't doubt the many insidious methods used to achieve the targets. I can even imagine that some of them might be found illegal.
But we have over 50 years' history, including many lawsuits, that has mandated most of the system we have now. Overturning it would require both discarding the disparate impact standard and explicitly banning racial hiring practices. I don't think there's much political support, either among politicians or the public, for doing so.
Thanks for your comment, but it's working off a premise that expired. EO 11246 and the contractor affirmative-action setup was revoked in Jan. 2025. So the requirement to set race and sex targets is gone, and the no-win bind you're describing (sued if you hit the numbers, sued if you don't) doesn't really exist anymore. The pull only goes one way now.
As for disparate impact, the plan says the EEOC will stop bringing those cases. The thing you assume hasn't happened is exactly what the document does.
You're right that a four-year enforcement plan can't rewrite the 1991 statute, and nobody knows if this survives the next administration. But the framework you're leaning on isn't the one in effect.
I'm afraid that the premise isn't nearly as expired as you say. EO 11246 has been revoked, but the requirement for Affirmative Action plans is in 41 CFR Chapter 60. I believe that changes to 41 CFR Chapter 60 have been proposed to rescind most or all Affirmative Action requirements, and the changes are likely to take effect before President Trump leaves office, but they're still in effect now. This is why I think the EEOC's planned actions will go nowhere.
Further, the disparate impact doctrine doesn't come from Executive Order or regulation, but from the Supreme Court (Griggs v. Duke Power, 1971). Trump can order federal agencies not to pursue disparate impact cases, but he can't prevent individuals from suing based on disparate impact, and courts are likely to consider disparate impact precedent binding. The Supreme Court has also explicitly allowed employers not covered by 41 CFR to use race-based quotas in hiring and promotion (United Steelworkers of America v. Weber, 1979).
I expect most employers will object to overthrowing the Affirmative Action regime of the last 50-plus years, because it will put their employment practices in great uncertainty. If Trump or Republicans want to dismantle racial preferences, they'll need a Supreme Court willing to over-rule precedent, or they'll need new legislation barring disparate impact as a standard, and a Supreme Court willing to accept such legislation. I don't see them trying, and I doubt they could get such legislation passed, until and unless they get broad public calls for such legislation.
You're right that those affirmative-action rules are still technically on the books, but Trump killed the order behind them in Jan. 2025 and told the agency to stop enforcing, so nobody's actually following them anymore. And you're right that the disparate-impact doctrine comes from the Supreme Court, not Trump, so people can still sue on it. My piece doesn't say different.
But all of that is beside the point. Affirmative action let schools cast a wider net. It never let them slam the door on a whole group. Refusing to even consider white men has been illegal since 1964. Nobody needs a new rule to go after it; they just need someone willing to. That's what changed last week. The Biden Administration never went after DEI hiring that shut out white or male candidates, as far as I can tell. But a lot of evidence is sitting in writing on school servers right now -- some of it is already on a federal investigator's desk. That's the part that should worry universities.
It's true that what Brian said no longer applies, and going forward these kinds of targets aren't going to be used. But it would be a good defense to SOME of the on-the-record behavior of universities with regard to PAST hiring: that it was literally mandated on them by the federal government at the time.
But I emphasize "some": even under EO 11246 etc., it was still illegal under the Civil Rights Act and subsequent Supreme Court decisions (which takes priority legally over executive orders) to use race as a criterion in making individual hiring decisions, and there were certainly cases where that happened in plain sight.
Can you cite the Supreme Court decisions that interpreted the Civil Rights Act to make racial considerations illegal? Did any of these overrule the United Steelworkers case of 1979, which explicitly allowed racial quotas?
First: standard disclaimer - I'm not a lawyer! But on my understanding, the United Steelworkers case only allowed racial quotas on a very limited basis - this was not an employment case, but a training program, half of the places on which were reserved for whites, and the reasoning was that (I quote):
[it was] designed to break down old patterns of racial segregation and hierarchy, and being structured to open employment opportunities for Negroes in occupations which have been traditionally closed to them. At the same time, the plan does not unnecessarily trammel the interests of white employees, neither requiring the discharge of white workers and their replacement with new black hirees, nor creating an absolute bar to the advancement of white employees, since half of those trained in the program will be white. Moreover, the plan is a temporary measure, not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance."
It certainly did not apply to a hiring decision where exactly one person was being hired, and where the candidate was chosen on the basis of race.
Supreme Court decisions which show that was outlawed include MacDonald vs. Santa Fe Corporation (from 1974: that was a firing case, not a hiring case, but the reasoning would apply to hiring as well); Wygant vs. Jackson Board of Education, a 1986 case about structured layoffs, where it was forbidden to structure the layoffs around racial quotas; and City of Richmond vs. J.A. Croson Co. (that was a 1989 case where 30% of city contracts were reserved for minorities, which was ruled illegal). Ricci vs. DeStefano from 2009 is also relevant: that was the firefighter case, where the city had a test for promotion, but then abandoned it when no Blacks passed it, fearing a "disparate impact" suit: the Supreme Court ruled that "disparate impact" was not allowed as a consideration in this case.
But once again: I'm not a lawyer, and I welcome any actual lawyers weighing in!
I am also not a lawyer. But I think you're misinterpreting the significance of the United Steelworkers case. It was an employment case, because it involved selection for promotion within the existing workforce. The specific program involved was temporary in order to correct an imbalance, but the decision does not imply that continued discrimination would be forbidden in order to maintain the proper balance. To quote from Justice Rehnquist's dissent: "the Court eludes clear statutory language, 'uncontradicted' legislative history, and uniform precedent in concluding that employers are, after all, permitted to consider race in making employment decisions."
I've never been in higher education except as a student, but I assume all faculty hiring decisions are made one at a time, where exactly one candidate is hired to fill exactly one position, but universities are still required to meet quotas by discipline, by school, or by whatever other category they use to set their quotas. In such a situation, it's inevitable that some search committees will be told "you must choose a candidate of the sex or race we need to meet our quotas."
The Macdonald case is probably not relevant. It held that whites were protected from discrimination, but didn't address whether Affirmative Action plans constitute discrimination. The Wygant case involved quotas that were not based on an affirmative action plan that complied with federal requirements, although the federal requirement did not apply to a public school district.
Minority set-asides are different from employment, so the Richmond case is probably not relevant.
The Ricci case was a truly ludicrous example. But it doesn't call affirmative action plans into question. It overturned a decision to change the promotion rules after the fact, because of feared disparate-impact suits. It didn't invalidate Affirmative Action plans, or other efforts to consider race in designing hiring or promotional standards.
With respect, I'm not convinced you're right here. Look again at what was explicitly said in United Steelworkers: "nor creating an absolute bar to the advancement of white employees, since half of those trained in the program will be white". How does (e.g.) a fellowship program in which EVERYONE is non-white qualify under that?
And the bottom line with all of these cases is Title VII, which says explicitly that race can't be taken into account with hiring. That's why the MacDonald case is relevant - because it shows that this applies to whites as well. And yes, it doesn't invalidate "affirmative action plans", but it definitely does invalidate a decision to only hire non-whites for a particular job - which was regularly done in universities.
I think that maybe because you are not employed in a university, you haven't really seen how far the racial hiring programs went. Not some "affirmative action plan", but (in some cases, for some positions) a direct bar on hiring white people. That isn't legal under United Steelworkers, or any of these others, because it goes against the explicit words of the Civil Rights Act.
I assume Anonymous Author is correct about which bewildering statutes currently apply, but I also agree with Brian Smith that these "aspirations" have been hiding in plain sight for at least 50 years and will be very hard to delaminate.
I don’t think this is something that’s really fixable institutionally. Thus I advocate lawsuit after lawsuit with the goal of basically bankrupting and hence destroying such institutions. Think of it as the sequel to the dissolution of the monasteries. Fine them several hundred billions, and when they keep offending, fine them three times as much next time. I suppose it’s conceivable that they’ll genuinely repent, but frankly, I’d rather they didn’t.
Fine them the max for every email, memo, HR doc, and advertisement discouraging merit-based applications, throughout every search, going back to the '90s. Fine every one of the craven sheep-schools that leapt onto the bandwagon; go after them institutionally and individually, with prison terms for the worst of the worst ringleaders and layers of six-figure admin enforcers. Obliterate the corrupt Boards of overseers and trustees.
Burn not-so-higher ed to the ground and then salt the earth.
These are bad people who should never work again in any position of authority or influence, much less prestige. Even if some weren't already weak and vicious, their time in the system enticed them, rewarded them, and conformed them to become their worst selves.
For years, I sponsored a 2 or 3-year postdoc position in Classics at my alma mater. Four or five years ago, I became uncomfortable with the required statement on the applicant's commitment to DEI, and I spoke to the department chair about it. He said it's a college requirement for faculty searches, but the department really doesn't take it into account when making the hiring decision. I said OK.
About two years ago, I decided that wasn't good enough. So I told the same professor that they needed to put his response in writing, in the job description. Something like, "We do not take your DEI statement into account for our hiring decision."
"Tom, we obviously can't do that."
"Why not? It's the truth." The conversation continued...
I no longer sponsor that postdoc.
Thinking about it a bit more, I agree with Jehu, that this situation is not fixable institutionally. Even though many faculty members might oppose DEI on the merits, it's too entrenched, perhaps because for years they have explicitly avoided hiring anyone who is not a true believer.
Exactly. The fact that so many are brazenly keeping the same people, policies, and practices, only changing the name from DEI to "Belongingness" or some such new gobbledygook, shows that, two years in, the ivory towers are unbreached philosophically.
I'm all for prosecutions of any and all for their blatantly hostile environments (read the docs, the emails, HR trainings; these are not good-faith efforts); however, the mode of enforcing meaningful change requires creating the effect of sunlight on USAID and e.g., the SPLC: No, you do not get to preen and posture against civilization or actively work against civilization / rule of law AND extract massive money from civilization's productive citizens, to dabble in whatever crazy current thing lately strikes your fancy. Turn off the spigot and let's see who survives.
Tax-exempt status for colleges and universities needs serious re-evaluation, just as for so-called 'N'GOs & 'non'profits. Earn your way without public subsidies, or enjoy the dustbin of history.
About three years ago, our faculty had a discussion about an upcoming search, for which I was the committee chair. This was in the early stages when we were talking about what we wanted and needed in a new hire. We are a majority-female faculty, but everyone was white at that point (we have since hired an Asian woman).
Several women said "We can't hire another white person". I said, "So you want to discriminate by race?" They said "Yes", enthusiastically.
But I'm sure that didn't make it into the meeting minutes.
Nobody in academia seems to care at all about this problem. After all, it was a "remedy". I couldn't help think: now YOU'VE got your safe white-person job, but to hell with other white person job-seekers. Didn't cost them a thing, but it cost others hugely.
A few years back, the organization where I was employed hired a consultant (of course) to do some DEI "work" across our international & globally dispersed teams. One of the highlighted comments in her "report" back to the organization was: Too many white women on staff (roughly five of roughly 40 employees, almost all admin). How warm and inclusive!
This is certainly an interesting development. I'd be surprised if significant actions are required by the EEOC's new emphasis.
"Large corporations" and "Prominent universities" that have contracts with the US government have been required to have Affirmative Action plans for the last 55 years or so. These plans are required to establish numerical targets by race and sex for every category of employee. The employers are required to make "good faith efforts" to meet the targets. In practice, this requires hiring qualified minority candidates in order to meet the targets. If the employer establishes qualification criteria with disparate impacts, they can be sued by disappointed applicants, not just by the government. The Affirmative Action plans are not public documents, but must be disclosed to employees on request. Except for the actual targets, which can be kept secret by the employer. I don't know whether discovery in a lawsuit could require disclosure of the targets.
If the government now tries to overturn Affirmative Action plans, or their implementation, they leave employers in a no-win situation. Failing to meet the hiring targets (or quotas, if you will) leaves the employer vulnerable to enforcement action and lawsuit. Trying to meet the targets can also leave them vulnerable to enforcement action and lawsuit.
I think it's probably good to get the gory details into public view. The existence of the quotas, and the mechanics of selection processes, have been kept out of view, because there are few in the public who would support the system we have now. I don't doubt the many insidious methods used to achieve the targets. I can even imagine that some of them might be found illegal.
But we have over 50 years' history, including many lawsuits, that has mandated most of the system we have now. Overturning it would require both discarding the disparate impact standard and explicitly banning racial hiring practices. I don't think there's much political support, either among politicians or the public, for doing so.
Thanks for your comment, but it's working off a premise that expired. EO 11246 and the contractor affirmative-action setup was revoked in Jan. 2025. So the requirement to set race and sex targets is gone, and the no-win bind you're describing (sued if you hit the numbers, sued if you don't) doesn't really exist anymore. The pull only goes one way now.
As for disparate impact, the plan says the EEOC will stop bringing those cases. The thing you assume hasn't happened is exactly what the document does.
You're right that a four-year enforcement plan can't rewrite the 1991 statute, and nobody knows if this survives the next administration. But the framework you're leaning on isn't the one in effect.
I'm afraid that the premise isn't nearly as expired as you say. EO 11246 has been revoked, but the requirement for Affirmative Action plans is in 41 CFR Chapter 60. I believe that changes to 41 CFR Chapter 60 have been proposed to rescind most or all Affirmative Action requirements, and the changes are likely to take effect before President Trump leaves office, but they're still in effect now. This is why I think the EEOC's planned actions will go nowhere.
Further, the disparate impact doctrine doesn't come from Executive Order or regulation, but from the Supreme Court (Griggs v. Duke Power, 1971). Trump can order federal agencies not to pursue disparate impact cases, but he can't prevent individuals from suing based on disparate impact, and courts are likely to consider disparate impact precedent binding. The Supreme Court has also explicitly allowed employers not covered by 41 CFR to use race-based quotas in hiring and promotion (United Steelworkers of America v. Weber, 1979).
I expect most employers will object to overthrowing the Affirmative Action regime of the last 50-plus years, because it will put their employment practices in great uncertainty. If Trump or Republicans want to dismantle racial preferences, they'll need a Supreme Court willing to over-rule precedent, or they'll need new legislation barring disparate impact as a standard, and a Supreme Court willing to accept such legislation. I don't see them trying, and I doubt they could get such legislation passed, until and unless they get broad public calls for such legislation.
You're right that those affirmative-action rules are still technically on the books, but Trump killed the order behind them in Jan. 2025 and told the agency to stop enforcing, so nobody's actually following them anymore. And you're right that the disparate-impact doctrine comes from the Supreme Court, not Trump, so people can still sue on it. My piece doesn't say different.
But all of that is beside the point. Affirmative action let schools cast a wider net. It never let them slam the door on a whole group. Refusing to even consider white men has been illegal since 1964. Nobody needs a new rule to go after it; they just need someone willing to. That's what changed last week. The Biden Administration never went after DEI hiring that shut out white or male candidates, as far as I can tell. But a lot of evidence is sitting in writing on school servers right now -- some of it is already on a federal investigator's desk. That's the part that should worry universities.
It's true that what Brian said no longer applies, and going forward these kinds of targets aren't going to be used. But it would be a good defense to SOME of the on-the-record behavior of universities with regard to PAST hiring: that it was literally mandated on them by the federal government at the time.
But I emphasize "some": even under EO 11246 etc., it was still illegal under the Civil Rights Act and subsequent Supreme Court decisions (which takes priority legally over executive orders) to use race as a criterion in making individual hiring decisions, and there were certainly cases where that happened in plain sight.
Can you cite the Supreme Court decisions that interpreted the Civil Rights Act to make racial considerations illegal? Did any of these overrule the United Steelworkers case of 1979, which explicitly allowed racial quotas?
Thanks.
First: standard disclaimer - I'm not a lawyer! But on my understanding, the United Steelworkers case only allowed racial quotas on a very limited basis - this was not an employment case, but a training program, half of the places on which were reserved for whites, and the reasoning was that (I quote):
[it was] designed to break down old patterns of racial segregation and hierarchy, and being structured to open employment opportunities for Negroes in occupations which have been traditionally closed to them. At the same time, the plan does not unnecessarily trammel the interests of white employees, neither requiring the discharge of white workers and their replacement with new black hirees, nor creating an absolute bar to the advancement of white employees, since half of those trained in the program will be white. Moreover, the plan is a temporary measure, not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance."
It certainly did not apply to a hiring decision where exactly one person was being hired, and where the candidate was chosen on the basis of race.
Supreme Court decisions which show that was outlawed include MacDonald vs. Santa Fe Corporation (from 1974: that was a firing case, not a hiring case, but the reasoning would apply to hiring as well); Wygant vs. Jackson Board of Education, a 1986 case about structured layoffs, where it was forbidden to structure the layoffs around racial quotas; and City of Richmond vs. J.A. Croson Co. (that was a 1989 case where 30% of city contracts were reserved for minorities, which was ruled illegal). Ricci vs. DeStefano from 2009 is also relevant: that was the firefighter case, where the city had a test for promotion, but then abandoned it when no Blacks passed it, fearing a "disparate impact" suit: the Supreme Court ruled that "disparate impact" was not allowed as a consideration in this case.
But once again: I'm not a lawyer, and I welcome any actual lawyers weighing in!
I am also not a lawyer. But I think you're misinterpreting the significance of the United Steelworkers case. It was an employment case, because it involved selection for promotion within the existing workforce. The specific program involved was temporary in order to correct an imbalance, but the decision does not imply that continued discrimination would be forbidden in order to maintain the proper balance. To quote from Justice Rehnquist's dissent: "the Court eludes clear statutory language, 'uncontradicted' legislative history, and uniform precedent in concluding that employers are, after all, permitted to consider race in making employment decisions."
I've never been in higher education except as a student, but I assume all faculty hiring decisions are made one at a time, where exactly one candidate is hired to fill exactly one position, but universities are still required to meet quotas by discipline, by school, or by whatever other category they use to set their quotas. In such a situation, it's inevitable that some search committees will be told "you must choose a candidate of the sex or race we need to meet our quotas."
The Macdonald case is probably not relevant. It held that whites were protected from discrimination, but didn't address whether Affirmative Action plans constitute discrimination. The Wygant case involved quotas that were not based on an affirmative action plan that complied with federal requirements, although the federal requirement did not apply to a public school district.
Minority set-asides are different from employment, so the Richmond case is probably not relevant.
The Ricci case was a truly ludicrous example. But it doesn't call affirmative action plans into question. It overturned a decision to change the promotion rules after the fact, because of feared disparate-impact suits. It didn't invalidate Affirmative Action plans, or other efforts to consider race in designing hiring or promotional standards.
With respect, I'm not convinced you're right here. Look again at what was explicitly said in United Steelworkers: "nor creating an absolute bar to the advancement of white employees, since half of those trained in the program will be white". How does (e.g.) a fellowship program in which EVERYONE is non-white qualify under that?
And the bottom line with all of these cases is Title VII, which says explicitly that race can't be taken into account with hiring. That's why the MacDonald case is relevant - because it shows that this applies to whites as well. And yes, it doesn't invalidate "affirmative action plans", but it definitely does invalidate a decision to only hire non-whites for a particular job - which was regularly done in universities.
I think that maybe because you are not employed in a university, you haven't really seen how far the racial hiring programs went. Not some "affirmative action plan", but (in some cases, for some positions) a direct bar on hiring white people. That isn't legal under United Steelworkers, or any of these others, because it goes against the explicit words of the Civil Rights Act.
I assume Anonymous Author is correct about which bewildering statutes currently apply, but I also agree with Brian Smith that these "aspirations" have been hiding in plain sight for at least 50 years and will be very hard to delaminate.