We are witnessing a sea change around DEI, “wokeness,” political correctness, and the like. For now, the anti-woke and anti-DEI forces have the upper hand. A big question looms in these hopeful signs, however. In attacking DEI, conservatives appear to be tempted simply to embrace wokeness’s power so they can turn it against the Left.
Wokeness for whites, for heterosexuals, for men, for Christians—is that a good idea?
Wokeness for whites, for heterosexuals, for men, for Christians—is that a good idea?Red-state efforts since 2020 have pushed back on many fronts, and, with the 2024 election results, Republicans in Congress and the incoming Trump administration are signaling that things are likely to change further still. This is being played out partly in higher education, where the reach of the law is quickly felt, but parallel large efforts appear in the corporate workplace and elsewhere, as well.
Several different strategies are being deployed to combat woke censorship and indoctrination and the bitter fruit of social division associated with identity politics. Freedom of speech is being pushed to the limit, in several different kinds of anti-woke campaigns. Legislatures have enacted bans on critical race theory and other “divisive concepts” in the classroom. Related approaches take aim at DEI offices and officers in public universities and elsewhere. All of these efforts run alongside, and have been greatly enhanced by, the Supreme Court’s landmark 2023 decision Students for Fair Admissions v. Harvard.
But another very different approach taken by conservatives is to harness the civil-rights legal and political machinery to make it work for “majority” groups—anti-discrimination for whites, men, etc. (“Majority groups” is, I admit, an imperfect term—“men” are not a majority group in America, for example—but this is the official term used in employment-discrimination law: the case of “that unusual employer who discriminates against the majority.”)
Now, as wokeness at points has involved measures to diminish and disadvantage majority groups, who can be surprised if representatives of those groups step forward to offer resistance? Simply enumerating some of the different legal strategies in this mode conveys a sense of what is likely to be an enduring part of the debate over civil rights in the future.
First is a novel application of anti-harassment law to bring “hostile environment” suits on behalf of members of majority groups. It has long been true that nondiscrimination measures apply to whites and men, etc., when it comes to hiring and firing. But what is emerging now is a new resistance to “diversity training” and the like. Whites and heterosexuals and other majority group members are starting to protest when their group is characterized in a negative way in such “trainings.” Claims that negative portrayals of these groups, officially conveyed by universities or employers, can create a hostile educational or hostile work environment are no longer dismissed out of hand in the courts.
One noteworthy pending case, De Piero v. Penn State University, shows both why these new strategies are necessary and why they are having some success. Zack De Piero was a non-tenured writing instructor at a branch campus of Penn State. Like many American college professors, he was the not altogether willing recipient of many DEI trainings, directives, and harangues from his department chair and from campus DEI officialdom. These included poisonous anti-white “trainings.” De Piero, who is white, was allegedly told that “teaching while white” was a kind of racism. He and his colleagues received “White Language Supremacy” training where they learned that English, the language of whites, was complicit in racism. They were instructed to watch a presentation titled “White Teachers Are a Problem.” Other materials publicized by Penn State’s DEI bureaucracy included lessons on “white supremacy,” “white immunity … [and] privilege discourse,” “white fragility,” and “white rage.”
Whites and heterosexuals and other majority group members are starting to protest when their group is characterized in a negative way.De Piero asked a few questions at some of the training sessions and, eventually (in 2021), filed a harassment claim. He was then belittled and berated by his superiors and by the official campus DEI police. Though his challenges were always respectful and moderate (he never became upset, raised his voice, etc.), his department chair and one of the DEI indoctrinators actually filed formal harassment and bullying charges against him. He received an official reprimand letter.
Now, one might say that this is just the way higher-ed DEI has always worked: an unending flow of semi-voluntary “training” and “professional development” sessions where far-left interpretations of anti-racism and anti-sexism are put forward by the administration in a kind of semi-official institutional indoctrination—all backed by formal accusations of discrimination and a looming threat of punishment for anyone who dares to question the message.
De Piero’s case is noteworthy, however, because his hostile-environment harassment suit has survived a motion to dismiss, where other similar cases in federal court have been less successful. Another important higher-ed anti-white harassment case to watch is Root v. City University of New York. This one has been in the works since 2020 in state court (in a blue state no less) and has likewise survived the first rounds of legal maneuvering and may soon reach a jury trial.
Other pro-majority challenges to DEI apply this same logic to Christians when individuals, citing their religious beliefs, object to workplace LGBTQ instruction. A 2023 case along these lines has been successful where earlier, similar cases failed. One can imagine other legal challenges in the future involving non-religious heterosexuals who likewise don’t welcome instruction on LGBTQ themes or males who feel that training lessons about toxic masculinity, for example, are sexual harassment.
Beyond such lawsuits, there are a number of other important legal strategies that seek to champion the rights of majority groups.
Many red-state initiatives follow a second path, using “divisive concepts” bans to prohibit anti-white and other anti-majority messages. The original source of such laws, a 2020 executive order by Donald Trump, explicitly took aim at “white privilege” indoctrination in federal-government diversity training. It also singled out for condemnation Smithsonian Institution materials that characterized monotheism, “hard work,” and the “nuclear family” as “assumptions of whiteness.” Some red states employing this strategy have run into free-speech roadblocks (a First Amendment challenge to Florida’s “Stop WOKE Act,” for example) but that has not stopped others from taking a similar approach.
A third legal strategy would alter the inner workings of employment-discrimination law in a lasting way. As it stands now, under Title VII of the 1964 Civil Rights Act, discrimination claims brought by whites, heterosexuals, and other majority-group plaintiffs must take a special preliminary “extra step,” a demonstration that “background circumstances” really do establish a “prima-facie case” of discrimination, before the normal process may go forward. This legal hurdle for majority-group members (a claim created by the courts and nowhere spelled out in any statute) is being challenged in a case brought by a heterosexual woman alleging discrimination by her LGBTQ work supervisor. The Supreme Court will hear oral argument in the case in February.
Would courses on biology need to be rethought if they created a “hostile educational environment” for religious students?A fourth step, not technically for the majority but with large majority-politics implications, is yet another proposed broad extension of anti-discrimination law for higher education. This is the “Anti-Semitism Awareness Act” that passed the House in May in answer to anti-Israel and anti-Jewish events on university campuses. The law would deploy the Title VI funding-cutoff threat to police anti-Semitism and other similar kinds of discrimination on college campuses. To see how transformative this would be, one need only grasp that it would work exactly like Title IX does for sex discrimination and sexual harassment. This legal framework would necessarily be applied to other religious minorities, to include Muslims, and eventually would presumably be adopted by Christians, as well. Would courses on the history or sociology of religion—or biology or astronomy or physics—need to be rethought if some claimed they created a “hostile educational environment” for religious students?
All of the above efforts involve anti-discrimination law’s governance of what we say or how we think about members of protected groups. A fifth civil-rights legal strategy takes aim at group-inequality remedies where they impose a cost (as they must) on majority groups. Aggressive application of the Supreme Court’s 2023 affirmative-action decision in Students for Fair Admissions v. Harvard is in full swing. The SFFA decision affects higher education directly, but its logic and precedential value have also been crucial in successful challenges (led by the Wisconsin Institute for Law and Liberty) to major federal affirmative-action programs, above all the federal Department of Transportation’s “Disadvantaged Business Enterprise” program and the Commerce Department’s Minority Business Development Agency.
Likewise following in the wake of the SFFA decision, a sixth pro-majority strategy has been to make a provision of the 1866 Civil Rights Act’s ban on race discrimination in private contracts (contemporary “Section 1981” litigation) work for whites. Though the 1866 Act originally aimed to protect American blacks, a 1976 opinion by Thurgood Marshall extended its protections to whites. And so, with the SFFA decision putting wind in its sails, “Section 1981” is now being used in a newly effective way to challenge programs that establish special preferences for minority racial groups (small business grants, scholarships, internships, etc., offered by government or by private corporations). Most of these cases thus far have dealt with the workplace, but “Section 1981” challenges to race-based scholarships and other similar measures in higher education are starting to appear, as well.
To the extent that these new legal approaches combat the Left’s distortion and exaggeration of the proper reach of anti-discrimination law, they all have merit. But we need to consider also the general trend they represent.
Above all, this new tack suggests that the civil-rights mindset is now our only star and compass when it comes to thinking about group politics. There are good reasons to wonder whether that is a good thing. We are the heirs of an older view of how inter-group (and interpersonal) relations ought to be governed, derived from our liberal-democratic constitutional tradition. For some time now, we have been in the process of trading a politics of freedom, individualism, toleration, and faction-taming for a new politics of identity, group-grievance, demands of “respect,” and allies against perpetrators. Should we rejoice at this prospect all the more now that conservatives are seeing ways for “majority groups” to get in on the action?
Some conservatives would go further still, calling upon “whites” to “get organized” and “engage in civil disobedience,” holding that “‘no justice, no peace,’ applies to white people as well.” Do we really want to go down this road—wokeness for whites (and males and heterosexuals and Christians)?
Conservative pushback against wokeness could be a healthy sign that needed civil-rights reform has started to happen in the United States. Instead, we seem to be doubling down on civil-rights imperialism, with conservatives somehow confident that, in making anti-discrimination work for themselves, they can do no harm.
Thomas F. Powers is professor and chair of the political science department at Carthage College and the author of American Multiculturalism and the Anti-Discrimination Regime (St. Augustine’s Press). His opinions are his own and are not endorsed by any institution.