The Trump administration’s executive orders to dismantle the DEI regime embedded in the federal bureaucracy have been the cause of some consternation. How did we get here? Is the dismantling of DEI justified?
In 1896, the Supreme Court infamously upheld state-enforced racial discrimination in places of accommodation, holding that “separate but equal” does not violate the Equal Protection Clause of the Constitution. The ruling permitted states to force businesses to separate white from “colored” persons. Justice John Marshall Harlan dissented, arguing that the 14th Amendment ensured that our Constitution is color-blind: “There is no caste here.” Harlan contended that civil rights are violated when they are regulated “solely on the basis of race.”
The idea of the color-blind Constitution languished for nearly sixty years until the legally enforced racial caste system prominent in the country was deemed unconstitutional in Brown v. Board of Education (1954). But after nearly a decade, legally enforced racial discrimination in public life was still the norm in many places across the country. After his arrest in Birmingham for peacefully protesting racial discrimination without a permit, Martin Luther King Jr. wrote the most famous prison epistle in American history. He appealed to a Thomistic conception of natural law—the eternal law of God made known by reason—to justify civil disobedience to unjust law:
“An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority.”
A few months later in his most famous speech, King rearticulated the color-blind ideal that he dreamed would become a reality: “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.” In short, King’s Christian-personalist vision was that human beings’ equal dignity would be respected, not violated by unjust laws that favored or disfavored persons on the basis of skin color rather than freely chosen actions. The Civil Rights Act of 1964, which forbade discrimination in places of public accommodation, education, and employment, sought to make King’s vision a legal reality.
Doubtless seeking to carry forward King’s vision, President Lyndon B. Johnson issued an executive order requiring “affirmative action” by employers to end racial discrimination. In a 1965 speech at Howard University, he explained that this represented a next step, a “more profound stage of the battle for civil rights.” In his words, “We seek not just freedom but opportunity. We seek not just legal equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result.”
Pursuit of “equality as a result” turned out to require discrimination.
LBJ’s argument was that equal opportunity, in the sense of no unlawful racial barriers, was insufficient to generate equal outcomes, in the sense of socioeconomic results. Rather, affirmative racial preferences in education and employment were necessary to achieve “equality as a result,” for which the term “equity” became shorthand.
In 1965, LBJ had a point: Systemic racism had created significant obstacles to black Americans claiming their rightful share of the American dream. Remedial racial preference in that light could appear to reasonable persons to be a kind of reparative justice. On the other hand, a reasonable person could be skeptical of LBJ’s vision insofar as it forecasted indefinite abandonment of the color-blind Constitution and denial of opportunities to qualified Americans just because of their skin color.
Pursuit of “equality as a result” turned out to require discrimination. As the popular scion of critical race theory Ibram X. Kendi candidly put it, “The only remedy to past discrimination is present discrimination.” To take one example, institutions of higher education enacted set-asides based on affirmative action and racial quotas. In 1978, Allan Bakke, a white male, was denied admission to the University of California’s medical school—which had set aside a quota of seats for racial minorities—despite having significantly higher test and application scores than those admitted into the set-aside seat. Four members of the Supreme Court held this was an unconstitutional violation of the ideal racial equality embodied in the 14th Amendment and Civil Rights Act. But Justice Powell, the lone deciding swing vote, held that racial discrimination could be justified in the state institution’s compelling interest in “diversity” on college campuses. The “Diversity, Equity, and Inclusion” regimes in the public and private sectors can be traced to this ruling, which effectively permitted racially discriminatory preferential treatment for favored minorities under the guise of “diversity.”
The Civil Rights Act also forbade employment discrimination on the basis of sex—and LBJ expanded his executive order in 1967 to include women and mandate sex-based affirmative action. At that time, this could have been seen as justifiable insofar as many professions had traditionally been unjustly closed off to women. But equal opportunity—formal equality of access—was deemed insufficient. Equality of result became the aim. And, as in racial affirmative action, the remedy to past sex discrimination often became more sex discrimination.
Consider Title IX, which became the engine of “equity” in higher education. If equity meant that the balance of the sexes enrolled in higher education reflected the population 50-50, that goal was surpassed by the 1980s. (And indeed, today, the gender gap is one of female overrepresentation and male underrepresentation. On average, the ratio in D1 schools is 57 percent female to 43 percent male.) Using Title IX, the government went further and mandated universities restructure their athletics programs to achieve equal outcomes: equal proportions of male and female athletes. Rather than expand women’s athletics, many universities simply cut men’s sports programs that did not have a female equivalent.
As universities defended the use of sex-based preferences in admissions in the name of diversity, they were reducing the diversity of athletic programs by cutting sports like wrestling. In 1975, there were about 155 Division I wrestling programs. Today there are 79.
“Any law that uplifts human personality is just. Any law that degrades human personality is unjust.”
As affirmative action was challenged as unjust racial discrimination over the years, it became clear that justifications like “diversity” were a fig leaf. Race is simply too crude of a category to measure “diversity,” particularly the intellectual diversity that the university is supposed to foster. Indeed, former President of the University of Michigan and Columbia University Lee Bollinger gave lie to the diversity rationale when he admitted that essentially everyone in higher education continued to believe that racial discrimination was justified to remediate past injustices. But this justification, which would permit downgrading assessment of individual merit in favor of racial balancing, was a justification that the Supreme Court has always rejected. This is perhaps because, contrary to the ideals to which we strive, it would imply America is constituted by creditor and debtor races.
This mindset—that unequal outcomes are the effect of past discrimination that the government is bound to remedy by discriminating against supposedly oppressor groups—animated Biden’s aim to push equity across the federal government in his presidency. But, by 2021, remedying sex or gender discrimination in women’s sports by eliminating men’s programs had long since been passé. The new frontier in gender equity was “LGBTQI+” rights—and since “gender” was now conceived of as a socially constructed category to which biological sex had no essential relation, males “identifying” as females were a new victim group in need of affirmative action. So the Biden administration sought to mandate through Title IX equity for “transgender” athletes, which meant universities would be required to permit males with gender dysphoria to compete in women’s sports. This, despite the demonstrably unfair advantage and violation of women’s privacy rights in the locker room it caused, which has been laid bare in collegiate swimming.
This is just one example of how the DEI agenda generates absurdities. There are countless more, including public and private attempts to socially engineer women into jobs that most women aren’t interested in, to the Department of Transportation’s (DOT) affirmative action Disadvantaged Business Enterprise (DBE) program, which presumes women and minority-owned businesses are disadvantaged. In foreign policy, the absurdities range from flying the Progress Pride Flag at its embassy to the Holy See to sending taxpayer dollars to facilitate sex change operations and LGBTQI+ activism in traditionally Catholic countries in Latin America.
After years of keeping racial preferences in college admissions on life support, the Supreme Court finally ruled in 2023 that it was unconstitutional in SFFA v. Harvard, in which it was revealed that elite universities had been discriminating against Asian students who, despite their status as racial minorities, are the highest-achieving racial group academically. If the universities had used merit alone, too many Asians would have been admitted, upsetting their preferred racial balance. This egregious behavior got so bad that Asian students testified that they hired advisors to help them hide their ethnicity on their college applications.
The logic of SFFA v. Harvard undermines the entire federal “race conscious” affirmative action regime, of which Biden’s DEI agenda was the most recent iteration. Hence, one court has recently held that DOT’s DBE program is unconstitutional. Even if well-intentioned originally, the affirmative action-DEI agenda is offensive to human dignity, inasmuch as it generates policies that favor some persons and disfavor others on bases other than merit. The LBJ-inspired vision is rooted in the truth that some people are born into less fortunate socioeconomic circumstances that are “not their fault.” And, of course, it is entirely consistent with distributive justice for a university or an employer to consider biography and whether a person overcame extraordinary life obstacles. Such considerations are merit-focused because such achievement typically bespeaks extraordinary merit. Yet, time and again when government attempts to engineer equal outcomes for some class of victims or alleged victims using the categorizations of race and gender instead of the more laborious evaluation of persons as individuals, the common thread is that—since competitive opportunities in education, employment, etc., are zero-sum—someone’s ox gets gored on some basis other than meritorious or demeritorious acts of free will.
Similarly, the statesman of well-formed conscience can pursue policies that assume the “preferential option” for the poor, as Catholic social teaching has long held. But to pursue such policies using racial or sexual classification as stand-ins for rich and poor is false, crude, and itself racist and sexist.
While there may be some who oppose DEI for bad reasons, such as outright race- or sex-based animus, it is inane for DEI defenders to proclaim that, necessarily, any opposition to DEI is otherwise internalized racial or sexual resentment. Such arguments are pseudo-sophisticated versions of the ad hominem fallacy. Neither does the platitude that color-blindness “erases” persons of color have any force. What is countenanced is legal color-blindness, rooted in the biblical value of legal impartiality (Leviticus 19:15), which strives to imitate the impartiality of the eternal law (Romans 2:11; Acts 10:34), not optical color-blindness.
The principled reason to support the dismantling of the DEI regime lies in traditional Christian philosophical anthropology. The idea that some persons are more or less valuable or more or less inherently innocent victims just because of their skin color or sex or “gender identity”—and on that basis deserving of favor or disfavor in education, employment, or other opportunities—is simply incompatible with the Church’s teaching regarding equal human dignity. Every human person’s infinite dignity rests upon having been created by God, male or female—not any accidental feature of a person, but upon those capacities that connote the imago dei and are the essential core of personhood: reason and free will.