Two months ago, I voiced one big criticism of Richard Hanania’s excellent piece on the curiously ubiquitous institutional influence of the left:
Hanania still fails to explain the sheer uniformity of left-wing cultural dominance. Competition normally delivers more diversity than we’re getting. And for that, I stand by my Explanation #5, which I flesh out greater detail here.
Explanation #5. Discrimination law covertly stymies the creation of right-wing firms. Most obviously, any firm that openly and aggressively opposed #MeToo and #BLM would soon be sued into oblivion.
Which does raise the question: Since the right runs the government roughly half the time, why don’t they try a lot harder to defang the “discrimination laws” that do so much to cause political discrimination?
In his latest piece, Hanania forcefully corrects his earlier oversight. Indeed, this is my all-time favorite Hanania essay. Preliminaries:
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 discriminatio…
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.
Key thesis:
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.
How discrimination law unfolded:
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.
The blight 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.
What is to be done? Deregulate! While it’s hardly a full remedy, at least deregulation allows alternatives to the current business orthodoxy to flourish:
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.
Brilliant:
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.
I’ve repeatedly argued that ADHD makes democratic politics less dysfunctional. Five years ago, Republicans focused on immigration, the critical issue where they are most wrong. During Trump’s term, however, they failed to permanently change immigration law. Yet thanks to ADHD, they’re moving on to a new top issue. And this time, they’re moving in the right direction. I doubt Republican strategists will actually follow Hanania’s advice, but hopefully they’ll prove me wrong. When regulation is out of control, deregulation is the obvious remedy. And discrimination law really is out of control.
READER COMMENTS
Peter Gerdes
Jun 2 2021 at 8:11pm
That explanation seems to be missing alot. I mean why should a law everyone expected to end explicit discrimination end up doing something else? Ok, yes laws often end up expanding with time and generating their own support but notice that these laws generally also created some degree of protection for discrimination based on religion yet (except in the case of Islam when it’s basically a kind of proxy for racial groups we don’t really understand or distinguish .. note that WASP converts to Islam get treated very differently).
Indeed, if the law was enough to explain woke views why would Asians largely not benefit like the other groups? Yes, Asians have higher average incomes than other traditionally oppressed minorities but that can’t be enough since concern over women’s representation get a huge amount of attention from activists of left — even in areas (medicine etc) where they are represented proportional to pop frequency.
I tend to also worry that regulation has gone too far but there are costs and benefits to any regulations and unless we understand much better all the factors (be they features of the law or society) we can’t really hope to figure out what must be repealed or added. Even if you are right that the legal changes caused the social changes it doesn’t follow undoing the laws would undo them.
Peter Gerdes
Jun 2 2021 at 8:24pm
Let me offer another explanation of these social changes besides the legal changes:. partisan valence.
If you look closely at most people’s political views (left or right) they are obviously selected based on the incentives the individual has to signal group membership etc to the point ppl are happy to throw their supposed objectives under the bus if they discover a hard to convey argument that actually supporting a policy associated with other team is most helpful. Sometimes you get a bit of movement with things like zoning but just look at the defund the police movement (the ppl who meant it)…people who damn well knew that blacks suffer from (non-police) homicides at high rates would simply refuse to accept the vast evidence that police reduce crimes because they are more concerned (like most of us) with signalling which side they are on then outcomes.
So here’s an explanation: these woke views crystalized exactly because they were near a big difference between the left and right (not just policy but cultural too) and that’s why activist views on the left don’t follow the contours of the laws but of partisan divides (religion isn’t seen as needing a vast protective admin).
I also think a huge amount of this is just the usual countersignalling. Guys signal confidence and capability by showing they aren’t threatened by favoring women (same with black and white etc). Amplified by above aspects.
If right then it’s less legal changes and more finding an even more contentious issue for left/right partisans to use to define the sides they are on.
j r
Jun 3 2021 at 12:00am
I am nonplussed by this whole chain of thinking. I understand it, but am perpetually confused how anyone can selectively decide that rolling back civil rights law is the silver bullet. If we start from the position that over-regulation is an important problem, both economically and socially, how do we get to the determination that civil rights law is singularly important?
There are all flavors of over-regulation: too much occupational licensing; over-permitting, the need for endless environmental impact studies, the criminalization of mundane activities; the list goes on. All of these things stymy economic dynamism and fuel the growth of an ever-expanding bureaucratic class. And we have not even gotten to land use. If I were to guess, I would say the fact that three-quarters of household land in the United States is zoned for single-family use only is responsible for many times the deadweight loss of civil rights laws. It’s probably not even close.
So again, what’s so special about civil rights law. Yes, that is a rhetorical question.
The other thing that confuses me is the disregard for the political economy considerations. This is GMU, right? Didn’t you guys invent this or something? The anti-woke crusade and the anti-immigrant crusade are fused at the root. Maybe there are lots of sincerely principled right-leaning intellectuals who can think these two thoughts at once, but they’re going to be swamped by the populist tide. There is never going to be a principled anti-woke movement that isn’t also more anti-immigrant, more protectionist, and generally socially conservative in ways that will restrict human liberty. Any law that tries to stop the NFL from taking woke symbolic actions is going to find a way to compel players to stand for the national anthem. Any law that bans the teaching of wokeness in schools is going to explicitly or implicitly mandate the teaching of patriotically correct history. This is not something that you remove with surgical precision.
robc
Jun 3 2021 at 8:29am
I will answer your rhetorical question (that is missing a ?):
Nothing. And I see nothing implied in the article that it is.
All the areas of deregulation you suggest would be a great place to start. None of them are special either. But, if you were to declare some sort of special emphasis on Freedom of Association, how many of those would be fixed also, along with the civil rights law issue? At least a few would be at least partially fixed by an insistence on absolute freedom of association.
The answer to which one to fix first is whichever is most politically feasible. But all should be discussed and on the table.
Floccina
Jun 3 2021 at 4:30pm
You and j r make great points. I’m amazed at how little BLM focuses on what to me look like much bigger issues, like the legalizing victimless crime and removing excessive restrictions on building. They seem to have more impact of blacks lives than police brutality and more proportional to whites.
TMC
Jun 3 2021 at 3:33pm
” I would say the fact that three-quarters of household land in the United States is zoned for single-family use only is responsible for many times the deadweight loss of civil rights laws”
Likely close to zero times. Seems to be user preference.
Mark Z
Jun 3 2021 at 5:11pm
Are you arguing that zoning law causes institutions to veer left? Or are you just arguing that zoning reform is a more important issue and we therefore just shouldn’t care about what Hanania is talking about? I’m not sure why that matters. Suppressing malaria in sub-Saharan Africa is far more important than probably any American political question, including zoning. I’m sure you have expressed opinions on plenty of issues that are quite trivial compared to other issues. “Well, here’s an issue that I think is more important than what you’re talking about right now” is a pointless game.
Your last paragraph is also clearly a bad argument. You’re saying that I should oppose reforming the enforcement of civil rights law (not repealing, by the way, simply enforcing it according to its letter) because other people who would support such a policy also support other policies that I oppose? You’re basically treating mood affiliation like an argument rather than a logical fallacy.
I think you’re also clearly wrong. The vast majority of Californians opposed affirmative action in public university admissions recently; affirmative action often polls poorly even among Democrats. And I’m pretty sure none of the state laws that under consideration banning racialist teaching in schools will force “patriotically correct” teaching. You’re just trying to poison the well.
Weir
Jun 3 2021 at 10:59pm
Surgical precision is what we see at Google.
Google will fire you for saying this: “Stop restricting programs and classes to certain genders or races. These discriminatory practices are both unfair and divisive.”
But Google will keep you on if you say this: “If I were a Jew I would be concerned about my insatiable appetite for war and killing in defense of myself.”
Surgical precision is what we see at Apple.
The specific words that got Antonio Garcia Martinez fired (“soft and weak, cosseted and naive”) seem less problematic to me than Dr Dre’s typical lyrics, but the board at Apple can perceive nuances and subtleties that escape my naive eyes.
Don’t underestimate the surgical precision that people are capable of.
Alexander Turok
Jun 5 2021 at 7:01pm
The root of your confusion is the fact that you are attacking a strawman argument (“we should only care about anti-discrimination law and nothing else”) that nobody is actually making.
Tom West
Jun 3 2021 at 11:47pm
I think a more obvious explanation is that being killed by those who represent the authorities and thus can essentially do so with legal impunity seems about 100x worse (for the community) than being killed by someone who broke the law to do so.
Even when the law can rarely be enforced, the importance of physical violence done by the authority has massively more emotional impact.
Anonymous
Jun 4 2021 at 12:14pm
Would anyone seriously say they would rather 100 people die of gun violence than one die from police violence in the course of an arrest? It seems like usually defund the police people want to argue that crime would not go up, not that they know murders will skyrocket but it’s an acceptable price for eliminating the single-digit police killings.
Michael Sandifer
Jun 4 2021 at 7:08am
This perspective is mostly nonsense. The drivers of the “woke” movement, which is positive despite excesses, is the rise of younger generations. Fortunately, I doubt they’ll allow for the changes recommended here.
Affirmative action could perhaps benefit from reform, no doubt, and perhaps the same is true of some rules concerning disparate impact. But, I think we can do more to help ensure equal opportunity in other areas of policy first, which might help solve some of the afore-mentioned problems.
For example, stop relying on local property taxes for some education funding, end NIMBYism, institute a generous negative income tax…
This would not be politically easy, to say the least, but would come with many positive externalities, while perhaps increasing equality of outcome.
Yes, we should focus more on equal opportunity than equal outcomes in some ways, but it isn’t easy to do, and we do need accountability for persistently unequal outcomes in many cases
I think the author here overstates the influence of the threats of lawsuits and government fines and underestimates how much the culture has changed. Unlike the author, I worked for corporate America much more recently and am certain he is not solid in his understanding of what is going on there. Much of the pressure on corporations coming from the customer side and many in management and HR are true woke believers and go far beyond what the law requires in many cases in terms of restricting speech, celebrating diversity, etc. I don’t this the author or the author he refers to understand corporate culture.
Anonymous
Jun 4 2021 at 12:24pm
Younger generations don’t spontaneously have totally different values and incorrect factual beliefs. They have to be instilled with these somehow. I would suggest that woke culture spread from academia into media as these arenas of American life became more and more extremely left-wing.
You don’t have to do anything “first”. Affirmative action is racism and should be eliminated immediately. More than one thing can be done at the same time, i.e. stop the systemic racial discrimination and also pursue your pet policy agenda that you want to come before eliminating government-sanctioned racism.
“stop relying on local property taxes for some education funding, end NIMBYism, institute a generous negative income tax…”
I don’t necessarily disagree with any of these, but I’m not sure how they relate to equality of opportunity (except maybe educational funding). Charter schools seem to be by far the most effective way of improving equality of opportunity in education, so hopefully we will see more progressives who supposedly care about blacks and not just their own sanctimony pushing for that.
Michael Sandifer
Jun 4 2021 at 7:16am
By the way, I’m a big Bryan Caplan fan, and think his perspectives on education and the irrationt voters are mostly brilliant, but he disappointingly comes across as a libertarian ideologue here. I don’t often have such thoughts about Mercatus Center economists, with whom I’m normally quite impressed regarding objectivity.
Malcolm Kirkpatrick
Jun 5 2021 at 5:07am
Caplan’s right about anti-discrimination law. Non-State actors should be allowed to discriminate on the basis of any silly reason whatsoever. He’s dead wrong about immigration. Value is determined by supply and demand, therefore a world in which human life is precious is a world in which human life is scarce.
Malcolm Kirkpatrick
Jun 5 2021 at 4:56am
I agree completely with reaffirmation of common law principles of freedom of association and freedom of contract. I disagree with the assertion that Republicans are “most wrong” on immigration.
Earth’s human population cannot grow without limit.
Earth’s maximum possible instantaneous human population exceeds Earth’s maximum possible sustainable human population.
Earth’s maximum possible sustainable human population leaves little room for wilderness or for large non-human terrestrial animals.
Valus is determined by supply and demand, therefore
A world in which human life is precious is a world in which human life is scarce.
Earth’s human population will stop growing when either (a) the human birth rate falls to meet the human death rate or (b) the human death rate rises to meet the human birth rate.
Earth’s human population will stop growing as a result of either (a) deliberate human agency or (b) other.
Deliberate human agency is either (a) democratically controlled or (b) other.
All human behaviors are heritable, therefore
Voluntary programs for population control will selectively breed non-compliant individuals.
For every locality A the term “the government of A” names the largest dealer in interpersonal violence in that locality (definition, after Weber).
Politicians in democratic polities will not restrict human reproduction as long as another country serves as a sink for excess growth.
Humans who will breed at high density have a selective advantage over people who require open space.
Human misery is like heat; in the absence of barriers it will flow until it is evenly distributed.
Build the wall or Calcutta, here we come.
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