Category: History

In 1963, President John Kennedy made a televised appearance and urged legislation similar to what would become the Civil Rights Act. After Kennedy was assassinated, President Johnson signed the Civil Rights Act of 1964 into law. (https://www.archives.gov/milestone-documents/civil-rights-act)

The act was the most sweeping legislation on this topic since Reconstruction. It covered many areas, and is broken down into eleven titles. For instance, Title I has to do with voter rights, Title VI concerns federal funding, and Title VII concerns employment. A major intent of the act was to end Southern legal policies concerning public accommodations, voting, and businesses. However, the Civil Rights Act of 1964 went far beyond this, as it did not just abolish certain state laws in the South, but also regulated private action by private businesses and individuals. (https://www.archives.gov/milestone-documents/civil-rights-act)

Opponents of the Civil Rights Act said it would, amongst other things, lead to a system of racial quotas in hiring. They said businesses would have to hire a certain percentage of each race, regardless of the merit or ability of those persons to do the best job. Proponents of the bill that would become the Civil Rights Act assured the nation it would not institute racial quotas for the hiring of employees. (https://www.americanbar.org/groups/crsj/resources/human-rights/archive/1964-civil-rights-act-then-now/) However, subsequent Supreme Court decisions said that “voluntary affirmative action”, that is open discrimination against whites in hiring, was just fine.

Currently, the courts say any private employer is free to implement voluntary affirmative action programs that are claimed to assist blacks and other minorities. This has been the law of the land since 1979, when the US Supreme Court decided United Steelworkers of America v. Weber, 443 U.S. 193 (1979).

United Steelworkers concerned a collective bargaining agreement between a union and an employer, which said that 50% of employees in a training program would be black “…until the percentage of black craft workers in the plant is commensurate with the percentage of blacks in the local labor force.” (Id.) Weber, a white employee, sued, pointing out that the policy violated Title VII of the Civil Rights Act. The plan, instituted by the labor union and the employer, was considered by the court to be voluntary, and not one that was required by government. The Supreme Court held that since it was voluntary, and was aimed at helping blacks, it did not violate Title VII.

The Court pointed to the Legislative History of the Civil Rights Act, which indicated it was aimed at helping black people:

“Congress’ primary concern in enacting the prohibition against racial discrimination in Title VII of the Civil Rights Act of 1964 was with ‘the plight of the Negro in our economy.’ 110 Cong.Rec. 6548 (1964) (remarks of Sen. Humphrey).” (Id.)

In other words, the Supreme Court in United Steelworkers said the Civil Rights Act of 1964 was there to help black people, not to create a “colorblind” society, or to create “racial equality in the workplace”.

The Court in United Steelworkers also dismissed a provision in the Civil Rights Act that seemingly prohibited racial quotas, in an act of what I’d call “linguistic jujitsu”:

“Nothing contained in this subchapter shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this subchapter to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area.”(42 U.S.C. § 2000e-2(j))

The court basically focused on the language: “…to require any employer…to grant preferential treatment…on account of any imbalance which may exist with respect to the total number or percentage of persons of any race….in comparison with the total number or percentage of persons of such race…in any community, State, section, or other area, or in the available work force in any community, State, section, or other area.”

The Court said no one was “requiring” the employer in United Steelworkers to grant preferential treatment to blacks, who were underrepresented in the workforce, in comparison to the number of people living in that area. In this case, the business in question was located in Gramercy, Louisiana, whose local workforce was 39% black. Prior to the implementation of this program, the workers in the business in question, involved in that particular type of work, was only about 1.83% black. (Id. at 198)

It’s doubtful that any court, anywhere, ever, would allow an “affirmative action” program to stand, if the situation were reversed. That is, imagine if the population of a city were 39% white, but only 1.83% of a company’s workforce were white, and the company instituted a program to increase white hiring. (I’m not sure if this would ever really happen, but perhaps if some basketball team decided to have a special program to increase white basketball players?) Not only would such a policy be struck down by the courts, the business would likely be burned to the ground by an angry mob of protestors, but I digress.

Probably the above scenario I present, of a black imbalance of workers over whites, also could never occur because the Court in United Steelworkers went on to say that there were limits on when a voluntary affirmative action plan like that one would be upheld. The Court said the plan in that case was designed to “...to break down old patterns of racial segregation and hierarchy…” (Id. at 208), it did “…not unnecessarily trammel the interests of the white employees…” (Id at 208), and the plan was a temporary measure, and would only continue until black employees as a percentage of workers, were the same as the percentage of blacks in the local population.(Id.  At 208).

Like it or not, since 1979, employers have been free to “voluntarily” discriminate against whites, in favor of blacks, as long as they could show it had to do with breaking down “old patterns of racial segregation”, did not “unnecessarily trammel the interests of whites”, and so long as the measure was “temporary”. This is what many companies have done, too. For instance, Larry Fink of Blackrock said that he was instituting an aggressive “diversity program” in order to get rid of “…a bunch of white men…”. (https://www.foxbusiness.com/business-leaders/blackrocks-larry-fink-rattles-employees-amid-political-posturing)  (Fink and his defenders would, of course, say that I’m mischaracterizing what he said, but he was aiming to reduce the number of white workers by replacing them with less qualified minority workers, since a profit-oriented business would naturally hire the most qualified, regardless of race, in order to maximize shareholder value and profits.)

There are indications in the legal system, and in the culture, that preferential treatment for black employees in hiring could be coming to an end, however. This has already occurred, “de jure” if not “de facto”, when it comes to affirmative action programs in college admissions.

In the Summer of 2023, the US Supreme Court issued its opinion in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. This opinion declared illegal any sort of racial preference system for any entity receiving federal financial assistance. Most universities and colleges today receive such financial assistance through student aid programs like Pell Grants or Federal student loans, as well as through research grants and other tax breaks:

“The clearest example of Title VI-covered federal financial assistance is money provided through federal grants, cooperative agreements, and loans. An entity may receive grant money directly from an agency or indirectly through another entity. In either case, the direct recipient as well as the secondary or subrecipient are considered to have received federal funds. In other instances, the funding may be directed to the funding beneficiaries but another entity ultimately receives the funding. For example, a college or university receives federal financial assistance indirectly where it enrolls United States military veterans for whom the federal government provides tuition payments.” (https://www.justice.gov/crt/fcs/T6manual5)

Title VI of the Civil Rights Act of 1964 says no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. (https://www.dol.gov/agencies/oasam/regulatory/statutes/title-vi-civil-rights-act-of-1964)

Additionally, even without the existence of Title VI of the Civil Rights Act, a state government cannot prefer one race over another without likely running afoul of the Fourteenth Amendment’s equal protection clause. The majority opinion of Justice Roberts spent a lot of time analyzing the actions of Harvard and UNC based on the equal protection clause of the 14th, but, as far as I can tell, it was simply assumed that Harvard was a state actor. At footnote 2 to the majority opinion, Justice Roberts says:

“Title VI provides that ‘[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.’  42 U. S. C. §2000d.  ‘We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI.’ Gratz v. Bollinger, 539 U. S. 244, 276, n. 23 (2003).  Although JUSTICE GORSUCH questions that proposition, no party asks us to reconsider it. We accordingly evaluate Harvard’s admissions program under the standards of the Equal Protection Clause itself.”(SFFA v. Harvard, 20-1199, decided June 29, 2023, footnote 2, Roberts opinion, emphasis.)

The opinion’s equal protection clause analysis makes more sense with respect to the University of North Carolina, which is clearly a state actor. It would seem to me that Harvard’s program was struck down more because of Title VI, not the equal protection clause, but the Robert’s footnote 2 makes it clear this is based on past precedent, which no one asked the Court to reexamine in that case. (Whether this makes any difference in future analysis of affirmative action programs at private versus state public universities, time will tell.)

The relevant facts in SFFA v. Harvard concerned the admissions processes at Harvard and University of North Carolina, which ensured that race was a major determinant in whether a significant percentage of black and hispanic students were admitted to these universities. Since there is only a certain number of students admitted every year, if black and hispanic students are being admitted because of their race, and not their qualifications, it meant there were other non-black, non-hispanic students not being admitted, who otherwise would have been admitted, based on academic qualifications alone. (In other words, this was a “zero-sum” situation. The only way for one student to “win”, and be admitted, was for another student to “loose” and not be admitted.)

In a six to three decision, the Harvard and UNC admissions programs were found to be illegal by the Supreme Court. As noted, much of Justice Robert’s majority opinion centered around an equal protection analysis under the 14th Amendment, which more clearly applied to UNC. His opinion noted that any exception to the equal protection clause must survive what is called “strict scrutiny”. Under this two-step test, the racial classification must be used to “further a compelling governmental interest”, and second, must be “narrowly tailored” to achieve that interest. In practice, almost nothing will survive strict scrutiny analysis by a court, meaning almost all governmental distinctions based on race are illegal:

“Outside the circumstances of these cases, our precedents have identified only two compelling interests that permit resort to race-based government action.  One is remediating specific, identified instances of past discrimination that violated the Constitution or a statute. See, e.g., Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 720 (2007); Shaw v. Hunt, 517 U. S. 899, 909–910 (1996); post, at 19–20, 30–31 (opinion of THOMAS, J.). The second is avoiding imminent and serious risks to human safety in prisons, such as a race riot. See Johnson v. California, 543 U. S. 499, 512–513 (2005).3) (SFFA v. Harvard, 20-1199, decided June 29, 2023.)

In a 1978 case, Regents of University of California v. Bakke, the Supreme Court had said that promoting a racially diverse student body could be a “compelling governmental interest”, such that certain affirmative action programs could survive strict scrutiny. As the majority in SFFA v. Harvard noted, this was the opinion of Justice Powell, while the rest of the majority wrote their own opinions about why the program in Bakke was legal:

“In a deeply splintered decision that produced six different opinions—none of which commanded a majority of the Court—we ultimately ruled in part in favor of the school and in part in favor of Bakke.  Justice Powell announced the Court’s judgment, and his opinion—though written for himself alone—would eventually come to “serv[e] as the touchstone for constitutional analysis of race-conscious admissions policies.” Grutter, 539 U. S., at 323….No other Member of the Court joined Justice Powell’s opinion. Four Justices instead would have held that the government may use race for the purpose of ‘remedying the effects of past societal discrimination.’ Id., at 362 (joint opinion of Brennan, White, Marshall, and Blackmun, JJ., concurring in judgment in part and dissenting in part). Four other Justices, meanwhile, would have struck down  the Davis program as violative of Title VI.” (Id., emphasis added)

In essence, Bakke was a tie, with one judge, Powell, breaking it in favor of the affirmative action side, but for a reason other than “remedying the effects of past societal discrimination”.

The majority opinion in SFFA v. Harvard also discussed another case, Grutter v. Bollinger, from 2003, in which the affirmative action program of the University of Michigan law school was upheld. In that case, the court endorsed Justice Powell’s position from Bakke, that racial diversity was a compelling governmental interest. Interestingly, the court in Grutter, as part of Justice O’Connor’s majority decision said:

“We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” (Grutter v. Bollinger, 539 U.S. 306, 343 (2003).)

So, the Grutter court punted on the issue, and said they’d uphold such programs for now, but not at some point in the future.

The majority opinion written by Justice Roberts in SFFA v. Harvard used strict scrutiny analysis to find that affirmative action programs for state universities like the one at UNC were illegal:

“For the reasons provided above, the Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points. We have never permitted admissions programs to work in that way, and we will not do so today.”(SFFA v. Harvard, 20-1199, decided June 29, 2023.)

The majority opinion did allow for one caveat. It said that:

“...nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” (Id.)

This is why I said that affirmative action was made illegal “de jure” if not “de facto”. Every university, including Harvard and UNC, will now increase black and hispanic enrollment through the use of essays, where the applicant makes a note of the fact that they are black or hispanic, and ties it in to some way they once were allegedly discriminated against and overcame it. (This will probably generate a whole cottage industry of essay-writers and “editors” that will assist black and hispanic students with this task, or they’ll just use Chat GPT to make something up.) The Court did note that this was not a license for backdoor race discrimination:

“…universities may not simply establish through application essays or other means the regime we hold unlawful today.”(Id.)

But, showing that universities are doing this will become very fact-specific in litigation, and will be difficult and expensive to show, unless a “smoking gun” can be found, like whistleblowers coming forward stating that they were instructed to admit black students based on their essays.

Solely based on its facts, SFFA v. Harvard has nothing to do with employment law or employers engaging in “voluntary affirmative action”. But, the Gorsuch/Thomas concurrence suggests that there might be future movement by the Supreme Court towards overruling  United Steelworkers of America v. Weber, and a finding that employer “voluntary affirmative action” is illegal under Title VII of the Civil Rights Act.

Unlike the Roberts majority opinion, the Gorsuch concurrence, joined by Thomas, focuses on an analysis of the legality of the UNC and Harvard affirmative action programs from the perspective of Title VI of the Civil Rights Act of 1964:

“Today, the Court holds that the Equal Protection Clause of the Fourteenth Amendment does not tolerate this practice. I write to emphasize that Title VI of the Civil Rights Act of 1964 does not either.” (SFFA v. Harvard, 20-1199, decided June 29, 2023, Gorsuch concurrence.)

What is important about the Gorsuch concurrence from the standpoint of employment law is that Gorsuch believes that Title VII, the law on employment discrimination, should be read the same as Title VI, the law on federal funding to universities and other institutions:

“If this exposition of Title VI sounds familiar, it should. Just next door, in Title VII, Congress made it “unlawful . . . for an employer . . . to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” §2000e–2(a)(1).  Appreciating the breadth of this provision, just three years ago this Court  read its essentially identical terms the same way.  See Bostock, 590 U. S., at ___–___ (slip op., at 4–9).  This Court has long recognized, too, that when Congress uses the same terms in the same statute, we should presume they “have the same meaning.” IBP, Inc. v. Alvarez, 546 U. S. 21, 34 (2005). And that presumption surely makes sense here, for as Justice Stevens recognized years ago, “[b]oth Title VI and Title VII” codify a categorical rule of “individual equality, without regard to race.” Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 416, n. 19 (1978) (opinion concurring in judgment in part and dissenting in part) (emphasis deleted).”(SFFA v. Harvard, 20-1199, decided June 29, 2023, Gorsuch concurrence, emphasis added.)

After indicating that Title VI and Title VII have similar terms, and should be presumed to have the same meaning. Gorsuch then went on in his concurrence to find that affirmative action programs in education, where the educator receives federal funding, are illegal. In fact, he stated that they are even more illegal under Title VI than they would be under just the equal protection clause, because the strict scrutiny standard might allow for some limited exceptions, while Title VI does not:

“In other respects, however, the relative scope of the two provisions is inverted. The Equal Protection Clause addresses all manner of distinctions between persons and this Court has held that it implies different degrees of judicial scrutiny for different kinds of classifications.  So, for example, courts apply strict scrutiny for classifications based on race, color, and national origin; intermediate scrutiny for classifications based on sex; and rational-basis review for classifications based on more prosaic grounds. … By contrast, Title VI targets only certain classifications—those based on race, color, or national origin.  And that law does not direct courts to subject these classifications to one degree of scrutiny or another.  Instead, as we have seen, its rule is as uncomplicated as it is momentous. Under Title VI, it is always unlawful to discriminate among  persons even in part because of race, color, or national origin.”(SFFA v. Harvard, 20-1199, decided June 29, 2023, Gorsuch concurrence, emphasis added.)

The Gorsuch concurrence in SFFA v. Harvard invites other lawsuits under Title VII against employers that use “voluntary affirmative action” or other “Diversity Equity and Inclusion” policies to discriminate against whites or males. In fact, I think the Fifth Circuit Court of Appeals, which covers Texas, Louisiana, and Mississippi, could rule, long before the US Supreme Court ever does, that Title VII should be read the same as Title VI under SFFA v. Harvard, and declare many affirmative action and DEI programs illegal.

The Fifth Circuit Court of Appeals is considered one of the more “conservative” in the nation, which means there is already an ideological bent in that court that would disfavor affirmative action and DEI programs. Ironically, in United Steelworkers of America v. Weber, the 5th Circuit found in favor of the white Plaintiffs. (“A divided panel of the Court of Appeals for the Fifth Circuit affirmed, holding that all employment preferences based upon race, including those preferences incidental to bona fide affirmative action plans, violated Title VII’s prohibition against racial discrimination in employment.”, United Steelworkers of America v. Weber, 443 U.S. 193, 200 (1979).) This indicates that the 5th Circuit would probably prefer to see United Steelworkers of America overruled, and could use the Gorsuch and Thomas concurrence from SFFA v. Harvard to take up the issue. Even though the 5th Circuit cannot directly subvert the United Steelworkers decision themselves, they could use the reasoning in SFFA v. Harvard to perhaps limit United Steelworkers in some meaningful way.

The desire amongst some Circuit Judges on the 5th Circuit to use Title VII to outlaw affirmative action programs by employers is already there. For instance, in Hamilton v. Dallas County, as part of his concurrence to an en banc decision, one Judge said:

“Congress enacted the Civil Rights Act of 1964 to protect every American against every form of prohibited discrimination—not just certain favored classes against certain disfavored forms of discrimination.  For decades, however, the judiciary has distorted the Act in various ways to protect some Americans, while excluding others.” (Hamilton v. Dallas County, No. 21-10133, August 18, 2023, James C. Ho, Circuit Judge, concurring, emphasis added.)

Hamilton v. Dallas County involved an allegation of sex discrimination under Title VII. The Dallas County Sheriff’s Department had instituted a sex-based policy to determine when employees who monitor prisoners in jail would get their two days off per week. Men could select full weekends off, that is both Saturday and Sunday. Female deputies could pick either two weekdays off or one weekend day plus one weekday. (For instance, a woman could pick Friday and Saturday, or Sunday and Monday, but a woman could not pick Saturday and Sunday off.) The reason for this was it was believed that it would be unsafe for all the men to be off during the week and that it was safer for the men to be off on the weekends. (Hamilton v. Dallas County, No. 21-10133, August 18, 2023, footnote 2.) (The exact reason the County of Dallas believed this, I don’t know, and I don’t know how meritorious this argument was.)

The district court granted Dallas County’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), meaning the case was dismissed quite early, soon after the lawsuit was filed. Based just on the pleadings of the Plaintiffs, the trial court found that there was insufficient factual basis in the Plaintiff’s pleadings to support a plausible claim for relief, and dismissed their case. (Basically, even if what the Plaintiffs said in their pleadings was completely true, they would still lose.) The Plaintiffs then appealed to the Fifth Circuit Court of Appeals in New Orleans. The reason for the early dismissal turned on a policy in the Fifth Circuit called the “ultimate employment decisions” requirement. Basically, this said that an adverse employment decision action for Title VII employment discrimination claims turned on whether the discrimination involved an “ultimate decision”, such as hiring, granting leave, discharging, promoting, and compensating an employee. An employer was not going to be found liable in the Fifth Circuit merely for taking a discriminatory action that didn’t affect one of these “ultimate decisions”. So, mere changes to employee work schedules, for instance, would not be an “ultimate decision” and therefore could not form the basis of a Title VII claim in the Fifth Circuit. In essence, it limited the scope of Title VII in employment discrimination. In an en banc decision, the Fifth Circuit overruled itself and discarded the ultimate decision rule as having no basis in the text of the Civil Rights Act:

“Nowhere does Title VII say, explicitly or implicitly, that employment discrimination is lawful if limited to non-ultimate employment decisions. To be sure, the statute prohibits discrimination in ultimate employment decisions—’hir[ing],’ ‘refus[ing] to hire,’ ‘discharg[ing],’ and ‘compensation’—but it also makes it unlawful for an employer ‘otherwise to discriminate against’ an employee ‘with respect to [her] terms, conditions, or privileges of employment….Restricting liability under the statute to ‘’ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensating’’34 renders the statute’s catchall provision all but superfluous. This we cannot do.’”(Hamilton v. Dallas County, No. 21-10133, August 18, 2023, emphasis added.)

In his concurrence Circuit Judge James C. Ho went on to say that not only was Title VII not limited to “ultimate decisions”, but the plain textual reading of the statute also meant that its protection was not limited to any particular racial group or groups. He cited, with favor, Justice Department positions that various DEI and affirmative action policies would also violate Title VII:

“As the Civil Rights Division of the Justice Department noted during en banc oral argument in this case, if “a law firm is having a lunch to do CLEs and you have a policy that says we’re only going to invite women but not men to this CLE lunch, that’s of course actionable, and that’s of course a term, condition, or privilege of employment” under Title VII.  Audio of Oral Arg. 23:00–23:29.  The Justice Department agreed that “a lot of law firms do that.”  Id. at 25:35.  It also noted that “work assignments . . . happening on the basis of race” are likewise actionable under Title VII.  Id. at 27:12–20.”(Hamilton v. Dallas County, No. 21-10133, August 18, 2023, James C. Ho concurrence.)

Note that Circuit Judge Ho said that a law firm continuing legal education program for only women would violate Title VII in the Fifth Circuit because it is a “..term, condition, or privilege of employment…”, and he also, implicitly, says it still violates Title VII, even though it is aimed at men. Presumably, a meeting of black associates or partners at a law firm that was limited to only black associates and partners would also violate Title VII in Judge Ho’s, and the current Justice Department’s, opinion. He also noted that work assignments are happening on the basis of race, and should be considered illegal under Title VII. For instance, I could see a company sending a black sales representative to meet with a black buyer, which would be a violation if this viewpoint prevailed. Or, in the entertainment industry, perhaps, a producer is assigned to television shows with black audiences or black record artists solely because the producer is also black. All of this would (and should) be made illegal under Title VII of the Civil Rights Act.

Circuit Judge Ho invited future litigation against corporate DEI and affirmative action programs by also saying:

“The Justice Department is not alone in expressing these concerns.  See, e.g., Andrea R. Lucas, With Supreme Court affirmative action ruling, it’s time for companies to take a hard look at their corporate diversity programs, Reuters, June 29, 2023 (“Title VII bars . . . a host of increasingly popular race-conscious corporate initiatives: from providing race-restricted access to mentoring, sponsorship, or training programs; to selecting interviewees partially due to diverse candidate slate policies; to tying executive or employee compensation to the company achieving certain demographic targets; to offering race-restricted diversity internship programs or accelerated interview processes, sometimes paired with euphemistic diversity ‘scholarships’ that effectively provide more compensation for ‘diverse’ summer interns.”); U.S. Senator Tom Cotton, Cotton Warns Top Law Firms About Race-Based Hiring Practices, July 17, 2023.” (Hamilton v. Dallas County, No. 21-10133, August 18, 2023, James C. Ho concurrence.)

There is a rich (dare I say, “diverse”) number of potential corporate and business targets out there for a Plaintiff’s attorney to choose from. Imagine all the DEI programs major corporations have implemented over the past fifteen to twenty years. There is also a lot of evidence out there, since many of these corporations have not even tried to hide what it was they were doing. They openly discriminated against whites and males as a badge of honor. “The Lost Generation” by Jacob Savage, published in Compact magazine on December 15, 2025, discusses blatant discrimination against white males in favor of women and minority candidates in media, journalism, TV and film, and academia.  All of these companies should be sued.

The courts, and the Fifth Circuit in particular, are ready to start taking claims of employment discrimination against white males seriously. I personally believe that the Civil Rights Act of 1964, and all subsequent acts, should be repealed. This is because I believe in freedom of association and freedom of contract. I believe I have an inalienable right to associate with anyone, or to not associate with them. I believe others have the same right. I don’t believe I owe any minority, or group of minorities, anything. Certainly not my time or association. The only thing I owe to people of other races is the same thing I owe anyone: to respect their rights to life, liberty, and property. In a truly free market, with actual capitalism that respected rights to property, freedom of contract, and association, the owner of a business would be free to racially discriminate or not, as they choose. (I think that those businesses that did racially discriminate for irrational reasons would lose profits as a result, but that is their decision to make.)

The reality is that if capitalism, freedom of contract, and freedom of association were legally instituted tomorrow, there would likely be plenty of affirmative action for minorities by companies that would choose to engage in such discrimination against whites. Does anyone really doubt that these leftist businessmen with white guilt, like Mark Zuckerberg or Sergi Brin, wouldn’t? I think affirmative action is unjust and bad for everyone, including black people, but you certainly should be free to discriminate against whoever you want, if it’s your property and your business.

But, in the meantime, while these laws still exist, I fully support the extension of the principles in SFFA v. Harvard to Title VII employment discrimination matters. We should end all affirmative action and DEI programs in all companies by force of law, as long as the law exists. Until the Civil Rights Act is repealed, everyone, both black and white, should feel the pain equally.

W. Dean Cook