This week on the CSPI podcast, I talked to Gail Heriot, a law professor at the University of San Diego and a member of the US Commission on Civil Rights. Her past jobs include civil rights counsel to the US Senate Committee on the Judiciary and Associate Dean for Academic Affairs at George Mason University Law School.
Our discussion focuses mainly on two papers she’s written in recent years:
Title VII Disparate Impact Liability Makes Almost Everything Presumptively Illegal (2020)
A theme of my writing on these issues has been that there is not enough discourse between the policy world and the intellectual world on topics related to wokeness. Many are angry about what they see happening, while few have thought carefully enough about what policy can accomplish. Gail is part of a small minority of people in the public arena that knows the law and has considered its effects on the wider culture.
In her 2020 paper, she frames the issue of disparate impact in a way I hadn’t thought of before. Literally any practice you can think of has a disparate impact. Try to think of a way of hiring or promoting people that does not benefit one group at the expense of another. If everything is potentially illegal, and government does not have the resources to go after everything, then the government basically has arbitrary power to do whatever it wants under civil rights law. People who become civil rights lawyers or EEOC bureaucrats tend to be extremely woke, and it is their interpretations of the law that shape how institutions can behave. This is why I have called civil rights law the “skeleton key of the left.” In recent years, it’s been applied to try and force mask mandates, the use of left wing history books in schools, and now, transgender women competing against biological women in college and high school sports. As long as civil rights laws remain as they are, almost any idea coming out of universities, no matter how crazy, can potentially be forced onto local governments and private institutions without having to ever be sanctioned through the democratic process.
Imagine if in the 1960s, someone proposed a new law that explicitly authorized bureaucrats and the courts to simply do whatever they thought necessary to attack racism and sexism, and later other forms of discrimination, whether found in government or the private sector. Such a law would have widely been seen as heralding the end of the American system. This is Chris Caldwell’s idea of “two constitutions” that are inconsistent with one another. Maybe the new, woke constitution was destined to win, but so far we haven’t even had a conservative movement that has been willing to recognize what has happened, much less fight back against it.
The lesson I hope people take away from this conversation is that all is not hopeless. Opposition to wokeness can be more than sterile complaints from disillusioned academics and a way to bond conservative audiences to Republican politicians. There are things individuals can do as activists, donors, and voters, and much to be optimistic about given the extreme amounts of political and intellectual energy that are going towards anti-wokeness. Most of the battle is in convincing people that wokeness ultimately comes from civil rights law and civil rights law can be changed, which I don’t think are tough sells.
Gail may be the most qualified person alive to talk about these things. She understands civil rights law from the inside and out as a scholar, and has also been close to legislators and others who make policy. In this conversation, she explains the connections between civil rights law and wokeness; why the disparate impact standard criminalizes everything and leads to arbitrary government power; and the ways in which the laws get interpreted in the real world. I ask her why Republicans have been so useless on this topic and that leads to a discussion of whether they are scared of touching identity issues, the current Critical Race Theory controversy as a sign things are changing, and the importance of politicians being pressured by their base. Finally, Gail gives practical advice on what the most important components of an anti-woke agenda would look like.
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