From Equality to DEI—and Back Again? – Law & Liberty

What is the future of DEI? Does it have at least some laudable goals, and are there better ways to achieve them? What do the American people really want when it comes to tolerance, inclusion, and discrimination law? The Manhattan Institute’s Robert VerBruggen discusses all these questions and more with host James Patterson in this episode of the Law & Liberty Podcast.

Related Links

“Fight Bias and Legalize Meritocracy,” by Robert VerBruggen

Transcript

James Patterson (00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

Hello and welcome to the Law & Liberty Podcast. I’m your host, James Patterson, contributing editor to Law & Liberty. Our guest today is Mr. Robert VerBruggen. He is a fellow at Manhattan Institute, where he provides policy research, writes for City Journal, and contributes to special projects and initiatives in the president’s office. And he has served as a deputy managing editor at National Review, managing editor at the American Conservative, and editor at RealClear Policy. And finally, as an assistant book editor at the Washington Times, he publishes on a number of issues and was the 2005 winner of the Chicago Headline Club Peter Lisagor Award. That’s great. And today we’ll be talking about his study at Manhattan Institute titled, “Fight Bias and Legalized Meritocracy, A Unifying Vision for Anti-Discrimination Law.” Mr. VerBruggen, welcome to the Law & Liberty Podcast.

Robert VerBruggen (01:38):

Great to be here.

James Patterson (01:39):

Let me give you two accounts of DEI and you tell me where they go wrong and maybe what half-truths they get. So the first is that DEI, which for those six or seven people listening to this podcast who don’t know, stands for diversity, equity, and inclusion, is mandatory for all hiring practices because of the permanently structured white supremacy in American institutions. And without it, we would experience the same levels of discrimination found, say in Jim Crow America. That’s the first version of the story, usually understood to be on the left. And the second version of the story is that DEI policies are a form of counter-discrimination designed to elevate minorities, otherwise incapable of achieving excellence in a competitive environment, and thereby exposing people to all kinds of forms of incompetence. These are the two extremes. It’s more of the right-wing extreme, and your study seems to say, look, let’s take this much more seriously and look at the evidence. What does the evidence tell us about these two positions?

Robert VerBruggen (02:54):

Well, sure, I think the beautiful and ugly thing about the term DEI is that it’s very vague. It can mean a lot of different things to a lot of different people. I think some people really do mean it just to refer to the concept of being open to people, being inclusive, being willing to hire and consider candidates from all different walks of life, and making efforts to make sure that you’re not overlooking people because of where they come from or who they are. And that’s, of course, entirely laudable, but I think it’s also a euphemism for, as you might say, counter-discrimination, reverse discrimination, whatever you want to call that, discrimination against sort of overrepresented groups or higher performing groups in an effort to hit the correct numbers that you think that a company or a student body should have. And I think that that’s where it runs into problems legally. I think there’s been a lot that’s been going on under the banner of DEI that has always been illegal, and I think that there’s a lot of gray area as well that as what the Trump administration is doing plays out. And as courts hear more of these cases, I think we’re going to have to resolve a lot of that gray area in terms of what exactly is allowed and what is not allowed in these sorts of areas.

James Patterson (04:06):

So where does the term DEI, or diversity, equity, and inclusion, come from? Does it have the same provenance as something like affirmative action? Does it grow out of affirmative action, or is it its own thing?

Robert VerBruggen (04:19):

I mean, I think it’s largely used in the same context as affirmative action. We talk about DEI and wokeness. These are sort of new terms or they’re new debates that we’re having, but in a lot of ways, they really just echo the debates about racial preferences and affirmative action that we’ve been having for 50 years or more. So I think in a lot of ways, they refer to ways of trying to diversify a company or a student body typically by taking race into account. And that’s also a problem that we have with the term affirmative action. The original use of it is just take affirmative action to make sure that you’re being fair and not discriminating by race. And it ends up being a euphemism for discriminating by race to get the numbers that you’re trying to get. And I think it’s a similar sort of thing with DEI where it’s just vague enough that a lot of people hear it and think, oh, that sounds nice, but it also turns out to be sort of a cover for some discriminatory and often illegal behavior.

James Patterson (05:07):

So the policy of DEI, at least as I understand it, is kind of a strange thing to emerge, given that as you put in your study, it actually has its origins originally in an attempt to establish a colorblind law. So how is it that we go from the colorblind objectives of, say, the Civil Rights Act of 1964 into at least as it’s been abused, a DEI that creates preferences almost to the point of quotas?

Robert VerBruggen (05:45):

Yeah. What the original civil rights laws reflected was sort of a consensus in America at that time that things had gone very, very badly under Jim Crow and it was not fair for African Americans to be treated the way they’re being treated and to basically ban discrimination by race. And these were written in very colorblind terms, and it was not only discrimination against certain groups was illegal, and it was okay to discriminate against other groups. It was just colorblind language that said, you’re not allowed to discriminate. But there’s always been a vocal minority in the US, and this is a debate that plenty of other countries have, as well, something Thomas Sowell has written a lot about, there’s always the vocal minority that says, no, we should be making more affirmative efforts. We should be discriminating in favor of the population that’s been discriminated against in the past. And that has very rarely actually been written into the law. It’s been very rare that Congress has put colorblind language into the statute books, but what’s been more common to happen is that courts and executive agencies blur the lines of the law and open the door that you see that with affirmative action in higher education. You see that with affirmative action plans in hiring where essentially courts and executive agencies blessed behavior that was pretty clearly not supposed to be happening under the Civil Rights Act.

James Patterson (07:01):

So let’s look at some of those laws, or at least what we might consider the sort of the big moments in anti-discrimination. What are they, and maybe how did judicial rulings or bureaucratic enforcement change?

Robert VerBruggen (07:20):

One of the bigger examples is affirmative action in higher education. The text of the Civil Rights Act says basically you’re not allowed to be denied participation in something that’s funded by the government, which is pretty much all colleges, public and private, on the basis of race. A couple decades or a decade and a half or so later, the Bakke decision comes along and says, well, you can consider race as one factor among many to get the educational benefits of diversity despite the very clear language of the statute that’s on the books. And also the constitutional issue of, especially for public colleges, denying equal protection under the law. It basically says it’s okay to do that. In employment law, you have a few different developments. One is the Griggs decision, which says that the original law had basically said you’re not allowed to intentionally make a test to give to your employees that’s designed to discriminate to weed out certain racial groups.

(08:15):

But you’re protected if you want to use tests to find the best employees. And the Griggs decision comes along and says, actually, if the test has a disparate impact, we’re going to hold you to a higher standard. We’re going to make you basically presumptively liable for discrimination for using that test unless you can defend it in court with pretty stringent rules and also with affirmative action. In private employment, you have the Weber and Johnson decisions which say, okay, if you’re a private company and you think you have a traditionally segregated job line, you can take race into account. If you have an affirmative action plan documenting what you’re doing, you can have an affirmative action plan to take race into account to some limited extent. And these are all things that are just not in the statutes. These are things that courts later kind of allowed out of the sympathy, frankly, with that vocal minority that wanted to do something that hadn’t been enacted in law.

James Patterson (09:11):

Yeah, there was a kind of optimism during the 1960s that with correct legislation and maybe with some kind of federal assistance, there would be a rapid evening out of outcomes. And when these don’t surface, there’s increasingly a justification for interventions that come from the courts. The one that seems to be most important, at least in beginning the process, is the Griggs decision in disparate impact. What does that mean?

Robert VerBruggen (09:46):

Basically, disparate impact means that in the case of an employment test (which is just kind of the textbook example of disparate impact, though the ruling applies to other selection mechanisms too) if you give people a test for the job and one racial group passes it at a significantly higher rate than another racial group that is presumed to be discriminatory, and the employer then has the burden of defending the test, showing that it’s adequately job related, showing that it’s validated. And there’s a whole very technical process that tends to play out in those kinds of cases called a Battle of the Experts, where each side hires testing experts to defend and criticize the test at a very technical level. So it basically says that if you’re going to use tests that have any kind of disparity, they have to be very rigorously vetted, and if you get challenged on them, the judge has to agree with you that they’re appropriate for the job.

James Patterson (10:37):

And the report on the area of employment, it says by the end of the 1970s, the Supreme Court had thrown out a requirement that Alabama prison guards be at least 5’2″ and 120 pounds, and yet allowed women to be outright excluded from certain roles in maximum security prisons owing to sexual assault fears. In the same decade an appeals court threw out a company’s categorical policy of refusing to hire those with criminal records. But the Supreme Court allowed New York’s transit system to refuse to hire addicts on methadone treatment without making case-by-case distinctions among applicants and job roles. The evaluation of written tests came to involve fact-intensive nitpicking of exactly what skills a test measured. I don’t know about you, if I were five one and 115 pounds, I would definitely not apply for a job as a prison guard, but what explains this battle of the experts? There’s a real aversion to being hauled into court and suddenly having to hire a firm or keep on staff a certain amount of legal expertise.

Robert VerBruggen (11:46):

Exactly. It’s not just, you can’t just say, okay, look, I’m using this test in good faith. There’s no evidence that I chose it to a certain racial impact. If you look at the test, I can explain to you why the questions on the test relate to things that I want my employees to know. It’s this really intensive process that stems from the EEOC putting out, they’re called the uniform guidelines. It’s a really long document on testing procedures that does not have the force of law, but that courts have really looked to over the years, and it’s just sort of an additional layer of requirement on employers that want to use tests. So when you use a test, you’re taking the risk of being held into court, and even if it’s a good test, you’re going to have to defend it. You’re going to have to go through the expense of defending it, and you’re going to have to hope that the legal process ultimately agrees with you that the test is a good one. So it’s basically an additional layer of risk that people take on when they try to screen their employees.

James Patterson (12:40):

We have a pretty lengthy history in the United States of what’s called redlining, which were efforts of cities or planners somehow to create housing arrangements in cities that would keep African-Americans out of certain neighborhoods. Do we find DEI as a policy impacting this sort of thing and has it been successful?

Robert VerBruggen (13:04):

Yeah, I mean, I went into the history of housing discrimination a little bit in the report. That’s an area where there’s been, I think, a lot of progress in a lot of different ways. One exception is that real estate agents do in more recent papers, still seem to just steer people to kind of like neighborhoods. And it not clear the extent to which that is because they’re trying to preserve discrimination, which I think is probably not a major motive these days, or if they’ve come to realize that if you have a majority white neighborhood, a majority black neighborhood, people of that race are going to be more likely to rent there. But that is illegal. You’re not allowed to steer people. So yeah, I think that’s an ongoing concern that there has been discrimination in real estate. There are laws to prevent that I think are good laws. And I think there are still, I think the audit studies do show that there are certain ways that those are still being violated, but there’s also been immense progress. There’s been a pretty big drop in a lot of kinds of bad behavior, like telling people that homes or apartments aren’t available when they are, that sort of thing.

James Patterson (14:01):

Earlier you mentioned the Bakke decision and its impact on higher education. Bakke comes down in 1978. What is this case and to what extent is it still controlling on issues of admissions to higher educational institutions?

Robert VerBruggen (14:19):

Sure. Yeah. I guess I forgot to finish my thought. It was the beginning of a very wishy-washy period in jurisprudence over the affirmative action issue. So it was basically, well, you can kind of do it, but you can’t have a quota. You can consider it to increase diversity, but you can’t do it, for example, in the name of social justice. It has to be that you’re trying to get the educational benefits of diversity. And then of course, as the Supreme Court turned back to the right, over the past few years we’ve had the SFFA decision that essentially overruled it without quite coming out and saying that it was overruling. It said that, no, you don’t get this extra sort of broad discretion to discriminate by race just because you’re a college.

James Patterson (15:03):

Great. And an area that, I guess, doesn’t occur to me that often because I’m not in this world, but there’s a fair amount of discrimination or history of discrimination in government contracting. And so maybe explain to an audience that may not know much about this, why this matters and what happened with it.

Robert VerBruggen (15:27):

Sure. Yeah. I mean, over the past 50 years or so, there’s been a number of developments under Nixon going back to Nixon and the Philadelphia plan and a little bit even before that where basically you had an executive order urging sort of diversity in government contracting and especially trying to ensure that African-Americans have equal access to those jobs. But it bled over into basically pretty intensive pressure on government contractors to balance their workforce in that way. And in one of the big developments of the Trump administration is that he rescinded the executive order from the Johnson administration that undergirds a lot of that. So we will see kind of going forward how well that works and how much that kind of trickles down to other layers of government because it’s not just the federal government that does this with government contracting.

James Patterson (16:17):

Yeah, and each of these stories has, I mean, there’s little distinctions and differences in them but they each seem to have the same sort of narrative, which is in the beginning there’s just reprehensible amounts of racial discrimination, especially targeted at black Americans. And then there are interventions in the law attempting to establish colorblindness. There is not the same degree of evening out that everyone had anticipated, and there’s still, less and less so, but there remains entrenched opposition to the law, that justifies greater interventions that haven’t really been repealed except maybe in the case of higher education in the SFFA case you mentioned earlier. But all the same remain sort of around and justifying increasing interventions despite the fact that the motivation of discrimination isn’t really around anymore. And this gets us to a section of the report called “Bigotry Falls, Disparities Persist.” So what are these disparities persisting, and what significance should we attribute then to failures of policy?

Robert VerBruggen (17:29):

Sure. I mean, one of the things I show is that if you look at surveys of whites asking things like, would you object if a relative of yours married someone from a different race? Do you think that people have a right to segregated neighborhoods? Would you vote for a black president if your party nominated one? When those sorts of questions that get at basically, are you a racist? You see a very steep drop off going back to the 1970s. So you’ve had, at least in terms of people being openly willing to admit to a survey taker that they’re racist, you’ve had a pretty drastic change in white attitudes essentially. And you have also seen some other things like audit studies showing that discrimination in places like the labor market may have fallen off as well, but you still see very deep inequalities in terms of things like school outcomes and things like wages, especially the male wage gap is very significant as I talk about in the report.

(18:28):

And that’s been just extremely frustrating. I think for everybody that was hoping for these things to improve and for America to take steps forward from its past that we haven’t seen these concrete outcomes equalize nearly as much as we wanted to. And I think what you see when you dig into the data, which I do a bit in that section and into the studies that have been done on it, is that the effect of intentional discrimination may not be gone, but it’s lessened over the past since the 1950s, 1960s. But instead, you still have these academic gaps and you also have, for example, in the labor market, you have the labor market putting a lot more value on education and skills where those gaps are still quite severe. So I think that there’s a really important discussion to be had around yes, continuing to fight the discrimination that still exists. And I have a section on audit studies in the report that goes into that. I do think that there is some level of discrimination that still happens in places like the labor market and the housing market, but I think we also need to work on things like human capital, making sure that education is sound from the early years and also that people have access to opportunity to apply the skills that they’re able to develop.

James Patterson (19:41):

Yeah, this section of the report really gets into some pretty technical data that you do a very good job of explaining for people that maybe aren’t as fluent in “statisticalese.” That’s not something some of us have to do in our daily jobs. What are some of the limitations of these studies? I see here, for example, formally studying the links among race cognitive skills, educational attainment and income has proved surprisingly difficult owing to certain patterns in the data and technical limitations. Maybe say more about what the problem is there.

Robert VerBruggen (20:22):

Sure. I mean, well, one interesting thing is that there’ve been some studies where you want to statistically control for things like test scores, you want to statistically control for educational attainment. And one of the weirder things is that because there’s such a big test score gap, African-Americans with a given test score actually get more education than whites with that same test score. So basically the test score gap is bigger than the educational gap in that sense. So you get very different results depending on whether you control for one or both. And there’s been a lot of debate in the literature about that. And one of the odder things is that in some analyses, you actually reduce the wage gap more if you just control for test scores as opposed to controlling for test scores and education level. So it’s a sort of conundrum of, okay, what is this actually telling us? How are we supposed to interpret this?

James Patterson (21:10):

And in some of these studies, I’m saying this almost as though I know this for certain, but maybe I should pose it as a question, but in some cases you’re dealing with sample sizes that are sufficiently small that where you control for population, you might end up with pretty few cases making it hard to make inferences. Is that a problem?

Robert VerBruggen (21:28):

It depends what dataset you’re using. If you’re using census data, those data tend to be really big. There are also some longitudinal studies like the National Longitudinal Survey of Youth that’s much smaller. You’re going to have sample sizes in a few thousand depending on how you strain out the cases you don’t want to analyze or which variables you’re looking at. But yeah, sample size can be an issue in some of these studies more than others.

James Patterson (21:52):

Well, that’s good to know that a lot of it’s done by census. This isn’t an area where I do any kind of empirical work, so I need to defer to the expert here. One of the things that emerges as a prominent study in this section is one where Patrick Klein and two authors send out 83,000 fake applications to jobs across the country offered by 108 major employers and check to see which received responses. This is a pretty incredible amount of work. Tell me about the results of the surveys and what bearing they have on the sort of broader discussion of DEI today.

Robert VerBruggen (22:33):

Sure. I mean, one thing I’ve been writing about for a while and pressuring people on the left to think more about is this sort of study, it’s called an audit study. The idea is that you send out otherwise similar applicants to do things like apply for jobs. What they did in this study is they sent out, you said 83,000 fake applications, and basically looked to see if the application had a stereotypically white or black name, did that affect whether you got a call back? And I’ve got the numbers here, about 25 percent of the white applicants were contacted within 30 days versus 23 percent of black applicants. So you have, it’s sort of an interesting disparity because on the one hand, it doesn’t sound that big, 23 versus 25. Basically, if you send out a hundred applications, it’s only a difference of two applications getting a response, but that’s basically a 10 percent gap for every 10 successful applications, you’re only getting nine if you’re from the disfavored racial group.

(23:31):

And of course, because this is just one aspect of the hiring process, it raises the question of, okay, if they’re discriminating at this level, what else is going on elsewhere in that process? And I think it’s important to note that when I say that I’m skeptical of DEI, I’m skeptical of reverse discrimination, that doesn’t mean we should lose sight of the fact that regular old discrimination is still a factor and it still matters and it’s still something that we do need to enforce and think about.

James Patterson (24:03):

Yeah, that’s right. There is this sort of persistence in this study to refuse to go to one of these chief narratives, but to stick with the data. That’s what makes it so valuable. I skipped over something I meant to ask you about, which is that there’s been this, especially on the right, some amount of discussion about the impact of family formation on success rates, especially for black men. What if any kind of impact could policy have on those kinds of outcomes?

Robert VerBruggen (24:36):

Yeah, that is kind of the million-dollar question. I’ve been thinking about family policy for a long time. I think there are certain things on the margins that matter. There are, for example, safety net programs that discourage marriage by taking benefits away when somebody gets married, things like that. I think that’s really important. That’s something we should be thinking about. But when you have a gap as big as the gap that we see in family formation in married parenthood, is any realistic government policy going to close that gap completely? I don’t know that it can. And of course, we’ve seen over the past 50 years, what started out with the Moynihan report is a crisis that was focused among black Americans. Instead of closing the gap and fixing it, it’s gotten worse over the years until fairly recently. And also, white illegitimacy rates have gone up, too. So that doesn’t seem to be something that we’re actually making too much progress on.

James Patterson (25:30):

So I wanted to ask you about this one last issue before moving on to the legal landscape, and I’m very curious about this because it’s one that I’ve heard people complain about when describing discrimination, which is the issue of stereotypically black names. Is this still in the Kline study?

Robert VerBruggen (25:52):

Sure, yeah. Yeah. That’s something that they address. They find that the particular name didn’t seem to make too much of a difference beyond the race of it. But there is a lot of research, and I do discuss this a bit in the report, suggesting that different names have different class connotations in addition to having different racial connotations. So there is that question about how much are you measuring class versus measuring race? One of the interesting things I found when I started to dig into this and that I mentioned in the report is a study finding that when there was a survey study about these class connotations and a fair number of people who had stereotyped a black name as being poor, when asked why they did that, they said, well, I know that there’s this income cap and it’s a black name, so I assume they were poor for that reason. So it’s not as clear cut as I think some of the critics resorting to that argument would like it to be. And also, I’m just not sure how good we should feel about it if employers discriminate against blacks but also discriminate against poor white people. It’s certainly worth teasing out the extent to which that’s what’s going on, but I’m not really sure that that’s anything good if that is what’s going on.

James Patterson (27:00):

Right, right. It’s one of these factors that–and I’m going to have a baby soon–it’s one of these things where you don’t realize that the name might actually affect trajectory, but apparently that is an issue now that I have to consider. So when we get to the changing legal landscape, you make a very important distinction between constitutional and statutory precedents, which are more important for DEI issues today.

Robert VerBruggen (27:32):

I think they’re equally important because I think we have an equal protection clause in the Constitution that’s been hugely important in a lot of these issues. The SFFA decision and the Bakke decision relied on equal protection despite the fact that the statute actually has much clearer language. The Bakke decision basically just assumed that the statute was meant to put into effect the equal protection clause despite the fact that it used completely different language. And the SFFA decision said, well, okay then, I guess we’ll decide this one on the equal protection clause. But the reason that I think that distinction is so important is that several of the originalist, or right-leaning, or however you want to put it, judges on the court are extremely reluctant to mess with statutory precedent. They have this sort of assumption or theory where if the Supreme Court screws up a statute, Congress can just pass it and fix it.

(28:24):

Whereas if the Supreme Court messes up the Constitution, it’s much, much harder to pass a constitutional amendment. That’s true as far as it goes, but I’m not really a fan of that way of thinking. I don’t think that the justices adhering to that are going to listen to this podcast and change their mind because of me, but I’m doing what I can on that. I think the problem is that passing a law through Congress requires both houses of Congress and the President all to agree to the same thing. And in the Senate, you might even need 60 votes to overcome a filibuster. So if Congress comes to a specific compromise and then the Supreme Court misinterprets that and says it means something else, they might not have the votes to turn that back to what the original compromise was. If any one of those decision makers either doesn’t think it’s worth the effort to put into changing the law or actually prefers that one because this was a compromise, if one part of that compromise actually prefers what the Supreme Court says to what they actually agreed to, they have no incentive to change that back.

(29:20):

So I think this sort of super deference to statutory precedents is a problem, but it’s just sort of a reality of the court that when you’re trying to overcome bad statutory precedents made in the past over issues like employment, affirmative action, you’re going to face a little more of an uphill climb than you do with something like SFFA where you can make your case to the originalist judges and they’re going to take the issue on and come to the conclusion they think is right without being excessively deferential to what was said incorrectly in the past.

James Patterson (29:53):

And I hope the listeners will forgive my academic bias here, but I have to ask just for my own sake. You have here some language here, it says, early signs indicate mixed compliance with the SFFA decision. The first class was admitted after the ruling revealed the kind of substantial demographic changes that one might’ve expected at others, there was virtually no change. Do you think we’re going to have to see more judicial interventions in the future?

Robert VerBruggen (30:28):

Yeah, I think it is actually very difficult to understand what’s going on in a lot of these schools. Basically, the Supreme Court said that you can’t use race as a factor. It didn’t say that you have to remove race from your admissions process and leave everything else exactly the same. Obviously if you were using race heavily before and you stopped using it, you’re going to see a big demographic change. But the more you change other things, the more you might be able to mitigate that demographic change. And the courts seem inclined to let people do that sort of thing, even if they are doing it for the specific purpose of preserving some kind of diversity. Even some of the briefs in the SFFA case from the plaintiffs were basically arguing that schools could preserve their diversity by moving to things like class-based affirmative action and things like that.

(31:11):

So I think it’s going to be very difficult to figure out which ones of these are doing things that are permissible and which one of these are basically still considering race even though told not to. And also where the courts are going to draw the line between what’s permissible and what’s not, because I think there’s a big gray area of policies that colleges may adopt specifically for the racial effects that probably would not be allowed in other contexts. For example, if you were trying to discriminate against black people or Hispanics, I don’t think that kind of thing would be allowed, to deliberately design your process to minimize their presence. But I think that the courts do seem pretty deferential to saying, hey, colleges, you can do things like class-based affirmative action. You can tweak those preferences with diversity in mind a bit. You just can’t use race directly. And I think finding out where to draw that line is going to be an interesting battle in the years to come.

James Patterson (32:06):

Yeah, that is, and I’m sure it’s going to be difficult to make everyone happy with any kind of result. There are some smaller programs you mentioned here and you highlight a COVID-era program targeting debt relief to black farmers and how it was replaced by a sort of thinly veiled, maybe more constitutionally compliant version. Is this a regular event in legislation where there are these handouts based around identity

Robert VerBruggen (32:40):

That has been much more unusual. As I lay out kind of earlier in the report, to me, the main thrust of the history is that Congress passes colorblind laws, and then the courts go back on it. Here, you had something that was kind of interestingly the reverse. You had big democratic majorities, and you had this sort of racial justice moment where people were very inclined to accept that sort of thing, so that Congress actually passed it and the Supreme Court rejected it, and then Congress tweaked it up a bit more. So I feel like that was part of the DEI fervor that we saw circa 2020, whether that’s over for good or whether we’ll see it again is an open question.

James Patterson (33:19):

Yeah. I have to wonder how many people were actually able to benefit from that. It’s a strange program, but I guess you never know what’s going to be in the law until you pass it. As a famous former speaker…

Robert VerBruggen (33:31):

You’ve got to pass it to know what’s in it.

James Patterson (33:36):

One of the worst things ever uttered about Congress. Also true, unfortunately, in many cases. In the midst of all of this, you reach a pretty poignant passage here. You say, “a backlash against double standards is a natural reaction, and racial favoritism raises additional issues as the nation diversifies and the horrors of the past decades recede. It’s one thing to grant preferences or special protections to black workers who attended segregated schools as children. It’s another to grant preferences to Hispanics over Asians for the foreseeable future, merely because the latter tend to perform better academically and economically. So while an identitarian equity-seeking approach has certainly shown itself to be a political possibility, it has proved neither popular nor desirable as an actual solution to the country’s racial problems.” Is this sort of where you land, or do you think this is where you think America’s landed?

Robert VerBruggen (34:38):

I think it’s both. I think any realistic solution going forward has to take public opinion into account. Even if I were to disagree with public opinion, I just think, you’re going to have all these people of different races living together and competing with each other for jobs and slots and colleges. You’re going to need a regime that has popular support, I think. So I think policy views need to be informed by public opinion to some extent in that regard. And I think the reality is that Americans never really made their peace with race-conscious policies. Even in some of the surveys, there does tend to be a racial gap, but even black support for a lot of these policies falls below 50 percent. So it’s a matter of, I think Americans generally want fair processes and equal opportunity and a fair chance to compete. They don’t want a thumb on the scale in terms of race. And I think public policy is going to have to sort of confront that reality and readjust, especially as we become more diverse. And as I said in that passage, as the horrors of slavery and Jim Crow fade into the past as we continue forward as a nation.

James Patterson (35:48):

Yeah, and in some ways there has to be some amount of time passing. We have a black justice on the Supreme Court who endured that life. He’s now 80, Justice Thomas. I’m reminded in that passage of something. I taught for a year as a visiting professor at Hampden-Sydney College. It’s a small men’s college in Central Virginia, and there was a generation of some white, some black men who were more or less illiterate because of massive resistance, in which they shut down the schools. They had illiterate parents, and so they were at that formative age when they would’ve learned to read at school, but never did.

Robert VerBruggen (36:32):

Yeah. It is a thing where each generation that passes, hopefully, those things go further into the past and are replaced by the better times that we’ve had more recently in that regard. So yeah, it’s one thing in 1970. It’s another thing in 1995. It’s another thing today, and it’ll be another thing 25 years from now, and my hope is that we will learn to find ways of focusing on concrete disadvantage and making sure that everybody has opportunity and everybody has a good education, and then letting people compete from there.

James Patterson (37:03):

So we’ve covered the courts a lot, but there’s a section on the future of DEI both in how the executive and the judicial branches will approach it. So maybe say a few things about what those predictions are.

Robert VerBruggen (37:19):

Sure. Well, essentially, what we’ve been seeing even since this report came out is obviously a huge push from the Trump administration. There’s obviously a very big Democratic Republican divide over this that we’ve seen in previous administrations, including the previous Trump administration. But this seems to me to be at an entirely different level. I mentioned that he rescinded the affirmative action and government contracting executive order. He’s reoriented the civil rights enforcement agencies so that they’re not relying on disparate impact theories anymore. He has started to take seriously reverse discrimination. It’s never actually been legal to put a job posting up that says you don’t want any white people to apply for it. But we’ve seen that, especially in colleges, that sort of thing. There’s a lot of things that have just been flagrantly illegal that they’re finally going after. And my hope is that this is going to be an even-handed enforcement effort.

(38:12):

If you look at the EEOC’s press releases on the cases that they’re talking about, there is still a mix of traditional civil rights enforcement, where you might have a case where black or Hispanic workers are being mistreated or being harassed at work, and they’re pursuing that still. I think that’s fantastic and it’s good, and also enforcing it even handedly, and obviously getting a lot more news coverage for going after DEI practices. So the executive branches have just seen this enormous reversal. I don’t know how much of that will last over the long run. Certainly, if a Democratic president is elected next, that’s all going to go out the window. I don’t know if that is going to create a precedent, kind of a standard for future Republicans to live up to or not.

James Patterson (38:56):

So in an area where you talk about the possibility of a grand bargain in Congress, which is interesting. I am happy to hear people still take Congress seriously as a source for changes. That was probably my favorite part of this was oh, Congress. But yeah, they can actually pass laws, not just make hits on cable news. So you say that the compromise could be, and there’s more to it than this, but the central nature of the compromise is effectively jettisoning disparate impact as a way of solving the problems created by the left, and in order to ameliorate the jettisoning of it, the government funding studies that would actually attempt to measure real discriminatory practices. And then throwing the book at those firms. Who are the buyers for this? Who are the people who might want this kind of law?

Robert VerBruggen (39:59):

Well, I mean, I think most people want an even-handed enforcement of anti-discrimination law. I think most people would think it’s unfair to say, you gave people a test and some people failed it more than others, so therefore we’re going to drag you into court and make you miserable. I think a lot of people would also think it’s unfair for there to be genuine discrimination where people are being rejected because of their race. I think that people who genuinely believe in colorblindness, I would say, are the buyers of that policy. And I would hope that it would be a little bit of a left-right compromise where the left gives up kind of this DEI approach to the issue that I think they’re paying some prices for in terms of public opinion anyhow, but the right admits, oh hey, there is still some discrimination out there. Why don’t we make more of an effort to address that? Why don’t we try to study it in a rigorous way and work with firms or sue firms as needed if they’re rejecting applicants because of their race?

James Patterson (40:53):

You’ve run into a problem, not you specifically, I’m sorry, Americans run into a problem where the two parties have to negotiate within their coalitions in their extremes. And on the right, you have people who are still racialists, right? And they’re self-discrediting in some degree, but still they manage to be a problem for people who want to take this on. And if you’re like me, and unfortunately, too online, you see a lot of their nonsense. But the left has more of an issue here because their more radical fringe, or their more radical advocates, are people who are, in some cases, actually employed as people in DEI organizations or activist groups. And so their checks are cashed on the basis of implementing these policies, whether it be for private firms that have brought in DEI executives or work as consultants. So this is essentially a hard sell for them, right?

Robert VerBruggen (41:57):

Yeah, exactly. I mean, I think the idea I put forth in the report is the centers of the two parties come together and pass a bipartisan bill, whereas increasingly what we’ve been seeing is that you have some fringe elements in both parties and increasing polarization among the electorate at large. So instead of passing a bipartisan bill, you wait until you have a trifecta and do what you can then. And I don’t think that’s a healthy way of making policy. And I think you’re obviously right if you look at that and say, that’s never going to happen because of this polarization and this refusal to deal with the center, I think. But yeah, I mean, I felt like it was helpful to at least outline in the report what it would look like if Congress did something that was consistent with public opinion, in my opinion, a fair policy.

James Patterson (42:44):

Oh, I didn’t mean to criticize you. I was, like I said, I was happy about it. I was just worried that it’s hard enough to make radical fringes of whatever side you’re on compliant, but when they’re paid not to be compliant, it’s even harder. So just as a final question here, how hard is it to make this very data-driven, complicated argument to people that are accustomed to dealing with DEI as either a term meant to imply an elevated racial consciousness or a form of racial favoritism?

Robert VerBruggen (43:25):

Yeah, I think one of the things I did in the report is try not to get too wrapped up in the term DEI. I mean, I certainly use it in the report. I don’t think you can talk about these issues without doing it. But honestly, after I work at the Manhattan Institute, we do a lot of work on DEI. And nonetheless, I still have trouble telling you exactly what it means, because as I said before, it means different things to different people. What I tried to do in this report is kind of connect the current DEI discussion, wokeness discussion, to all of these policy developments and all of these debates we’ve been having since the 1960s to some extent even before. And to talk about how anti-discrimination laws evolved and how it might move forward in a way that’s productive and that could gain the consent of the American people.

James Patterson (44:12):

So again, this study, “Fight Bias and Legalize Meritocracy: A Unifying Vision for Antidiscrimination Law.” Its author is our guest today, Robert VerBruggen of the Manhattan Institute. I hope everyone moves over there to take a look. We barely scratched the surface in terms of the material he covers, really, in 20 pages. I don’t think I could have done it. So thank you so much for coming on the Law & Liberty Podcast.

Robert VerBruggen:

Thank you for having me.

James Patterson:

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts. And visit us online at www.lawliberty.org.