The turning point was 1991.
The turning point was 1991.
G ail Heriot — a University of San Diego Law School professor who, having spent decades working in civil rights law at a high level, is an exceedingly rare specimen on the right — has brought needed attention to the overlooked story of wokeness’s origins in policy and law. It’s one we need to understand fully if we’re to pursue a solution that actually rolls back the “woke exceptions” to anti-discrimination law that have gutted meritocracy, encouraged bigotry, shut down national conversations, and generally poisoned race relations in our multiethnic republic.
In Why We Walk on Eggshells, a recent release from Encounter Books, Heriot builds a nearly unassailable case that many of these pernicious effects are not “politics downstream from culture,” but rather “culture downstream from law.”
It may be a less sexy story than tracing the ideological history to Herbert Marcuse and the Frankfurt School, but it may ultimately prove more practically useful.
Even the familiar, more ideological backstory, though, is further than many go in search of woke’s origins. Too many Americans still think of the phenomenon as beginning quite suddenly, sui generis, around 2015–17, culminating in collective insanity by 2020. This explanation completely omits the fact that a very similar set of ideas was simply given the alternate label of “political correctness” in the ’90s and ’00s, distinguishable less by its principle than by incentives and power.
Heriot is quick to insist, in the introduction, that law and policy are not the whole story of what we’ve called woke for the past decade. But, she says, it’s important to distinguish them from the history of ideas on which many focus. Supreme Court misinterpretations and overreaches play a key role. Heriot, in opposition to Christopher Caldwell’s thesis in The Age of Entitlement, cites as a turning point not 1964’s Civil Rights Act but a technical reform from the 1990s, the almost-forgotten Civil Rights Act of 1991.
But, as elucidated in Eggshells, the story goes further back, starting with late 1960s and ’70s court decisions that were desperate efforts to make up for the failure of Great Society anti-poverty programs to close racial gaps in America. Heriot points in particular to Griggs in 1971, which enshrined the odious “disparate impact” liability analysis that mistakes group disparities in outcome for individual discrimination. She also highlights Bakke in 1978, which green-lighted racial discrimination in university admissions.
Left-wing colleges enthusiastically accepted the challenge and began a decades-long race to admit more and more unqualified minorities. Corporate America, especially after Griggs took from them many traditional, objective ways to screen for merit among applicants, followed suit. The Reagan administration attempted to dial back these interpretations of the law, but activists in the 1990s countered with a push to enshrine them in legislation — the Civil Rights Act of 1991. After strong initial opposition, Republicans ultimately capitulated in the face of the usual accusations of racism and sexism in 1991, and a tired, unpopular President George H. W. Bush signed the reforms into law.
From that point forward, in Heriot’s telling, it was off to the races, culminating ultimately — as we see today — in the kind of fetid and open discrimination that the 1964 Act was put in place to prevent.
Whether this was even good for the intended beneficiaries themselves is debatable. The “mismatch” thesis, clearly explained in Eggshells, posits that we have fewer black and Hispanic graduates in various difficult professional fields than we would if merit were the sole basis of admission. Underqualified students, admitted for racial reasons, too often discover that they’re unable to cope with peer-level chemistry coursework at the Ivy League level, so they switch to easier majors. Meanwhile, when students with these same credentials go to a lower-ranked school where they are better “matched” academically with their peers, they more often stick to tough majors. In short, by consistently admitting subpar “underrepresented” students at exclusive universities, we get more graduates of African studies at Harvard, but fewer black computer science graduates at American University or Syracuse, resulting in fewer black professionals overall.
Heriot suggests that one downside of the explicit focus on race has crowded out efforts to pull young people of all races out of dysfunctional backgrounds and up into the bourgeois norms of the middle class. Here, I’m not sure I agree, and I wonder whether Heriot might be making the same mistake as those disappointed with the Great Society on this score. America has tried very hard and for a very long time to close those gaps, with limited success.
Funding in K–12 schools, for example, is skewed heavily toward, rather than away from, low-income districts with higher proportions of black and Hispanic students. And we’ve seen a long litany of interventions that have all promised to close those gaps, President George W. Bush’s failed, bipartisan No Child Left Behind behemoth experiment included.
Some conservative reforms have been very successful; data on the first cohort of young adults selected by lottery to pass through the Milwaukee voucher program, for example, show absolutely massive declines in felony convictions, and even in paternity disputes. School choice does move the dial on test scores, but it does so only modestly. And it’s entirely possible that because of the explosion in school-choice programs run by the states, gaps will close as everyone, and not just low-income families, gets access to better schools and the salutary effects of market competition (something to celebrate, not lament).
What’s undeniable, though, is that decades of increasingly obvious and heavy-handed discrimination have been terrible for multiple generations of young white men, as well as Asians of both sexes in university admission, and that resentment over being so unjustly passed over is reaching a boiling point. The end result of every institution, from universities to companies to Hollywood, spending the past several decades purposely not picking the most talented or hardest working has been poison to the American experiment.
Another important aspect of Heriot’s story is her discussion of “harassment” and workplace “hostile environments” as the nail in the coffin of the open culture that was crucial to maintaining the First Amendment in practice rather than in the courtroom.
The threshold at which “harassment” of a racial or sexual nature turns into effective discrimination has always been vaguely defined. But prior to the Civil Rights Act of 1991, the damage that vagueness could cause was effectively cabined by, of all things, the available legal remedies. When the reward available for suing your employer for discrimination was simply your job back plus any lost wages, the harassment-case threshold remained pretty high even without explicit definition. There was no additional massive payday on offer that would incentivize employees to be “offended” by ever-more-minor situations. The 1991 reforms transformed the incentives, adding punitive damages for emotional distress even as courts kept failing to clearly define harassment; this meant that cumulative minor incidents could “add up” to harassment. Both complainants and employers jumped quickly to respond to the radically different set of carrots and sticks.
As Heriot writes, “Once the ’91 Act passed, jittery employers correctly understood that to avoid liability for harassment they needed to control employee speech and conduct at the pinprick level.” From this legal incentive, an entire industry of sensitivity trainings has sprung, aimed at preventing even the most easily offended (or unscrupulous payday hunters) from making a case for harassment.
We know this industry now as DEI training. The concept of “microaggressions” may have been born in the academy, but it might well have died there without the ’91 Act. Instead, it entered mainstream American life through proliferating workplace-harassment claims. And in the wake of companies trying to CYA their way out of expensive lawsuits, a stifling, anti-free-speech culture prohibiting the mildest of jokes or observations was launched.
Ultimately, Heriot’s book is a beacon of good sense in this era of extreme tension on racial issues. By showing the magnitude of cultural change that can result from arcane tweaks to the law, she gives us hope that moderate reforms and realignment of incentives can launch a counterrevolution for equality and meritocracy.
In light of a backlash election that is likely to award Big Woke an “Empire Strikes Back” era, the story told in Why We Walk on Eggshells is a more critical read than ever.