Spencer Shia is reading law at the University of Chicago and was formerly president of the UCL Conservative Society.
In the wake of the 2020 US Supreme Court decision Bostock v. Clayton County, which held that Title VII of the Civil Rights Act of 1964’s protections against employment discrimination “because of sex” extended to LGBT individuals, some conservatives were apoplectic.
Josh Hawley, a senator, took to the floor of the Senate to argue that if such a result could be achieved, it “represents the end of the conservative legal movement”. In the following months Ted Cruz, his Senate colleague, indicated that he expressed concern to the White House about nominating Justice Neil Gorsuch, who wrote the majority opinion in Bostock.
Underlying these comments is a conservative scepticism of expanding civil rights law. There are many, likeHawley, who do not want to create new protected categories in equality legislation, or apply civil rights law to novel circumstances.
Scepticism about the over-extension of civil rights law, which could lead to intrusive social engineering or the state-sponsored imposition of woke policies on civil society is healthy.
Nonetheless, in today’s political environment, civil rights law can also be a useful tool to achieve conservative ends, and to stymie the left’s weaponization of private institutions.
Such law requires both government and private actors to not discriminate on the basis of protected characteristics: Title VI of the Civil Rights Act of 1964 prohibits government funding to private organizations that discriminate on the basis of race, colour, or national origin; Title VII applies the same to employers and extends a further protection on the basis of sex; Title II prevents discrimination in public accommodations, whether they be privately owned or not.
In the current age, conservatives and conservative values are being threatened in private institutions. Consider the examples of social media and affirmative action.
Large social media platforms have been censoring conservatives. Following Elon Musk’s acquisition of Twitter, files were released indicating that Twitter artificially limited the reach of conservative users on the basis of their views. Recent litigation revealed that the Biden Administration pressured social media platforms to remove conservative views on the COVID-19 pandemic, including the now mainstream view that the virus originated in a Wuhan research lab.
Civil rights law offers the building blocks to stymie the left’s weaponization of social media against conservatives. In fact, it already has: the states of Florida and Texas have, in the spirit of Title II of the Civil Rights Act, passed legislation requiring large social media platforms to not engage in viewpoint discrimination while undertaking content moderation.
In this age, where a greater share of communications takes place online, such laws will ensure that conservatives have the means to communicate and share their views.
The left, meanwhile, has made clear their intention to use social media to censor conservatives, be that Representative Alexandria Ocasio-Cortez chastising Facebook for running ads without “fact checks” and so-called experts calling the social media censorship of Donald Trump “too little, too late”.
An amendment to Title II, identifying large social media platforms as public accommodations and adding political ideology and viewpoints as protected categories, would go a long way toward protecting conservative speech by opening up the federal courts to lawsuits against private actors that try to discriminate against conservatives.
Then there’s affirmative action. Until the recent Supreme Court decisions, universities discriminated against asian and white applicants to artificially increase the number of black and Hispanic students.
Race was used to deselect candidates from the final shortlist for admission to Harvard College, and admissions offices artificially deflating the “personality” scores of Asian applicants – despite the fact that the interviewers who actually met the applicants gave asians about the same personality scores as applicants of other races.
Although higher education has been in the spotlight, similar diversity-hiring initiatives take place in woke corporations too.
The recent Supreme Court decision, which bans the independent consideration of race, was doubtless an improvement. However, it still allows universities to indirectly consider race in their discussion of race in admissions essays, if it reveals non-racial qualities of an applicant, such as their “courage” or “determination”.
Thus while the ruling prevents the most egregious forms of affirmative action, such as deflating the personality scores of asian applicants or considering race when deselecting applicants from a shortlist for final admission, a muted form may yet survive by indirect means.
Harvard University mentioned the Supreme Court’s qualification in their statement expressing disappointment at the decision before stating that they will “follow the ruling”, implying that they will seek to indirectly consider race; Asha Rangappa, an admissions officer at Yale University’s Jackson School, tweeted that the Supreme Court decision may allow for more diversity-oriented admissions policies.
Here, no legislation is needed. Litigation and the application of the precedents of the Civil Rights Act is enough. Neil Gorsuch noted, in his concurrence in the consolidated Affirmative Action cases SFFA v. Harvard and SFFA v. UNC, that the Supreme Court has applied a plain, textualist interpretation of the Civil Rights Act.
What he means by that is that, for example, the aforementioned Bostock case saw the Supreme Court applying a near-literal interpretation of Title VII’s phrase “because of sex” to extend its protections to LGBT individuals, as biological sex plays a role in the identities and behaviours of LGBT individuals.
Thus, the logic goes, firing of an LGBT person would not have transpired had the LGBT person been of a different sex. Hence, even the indirect consideration of protected categories is prohibited by the Supreme Court’s precedents on the Civil Rights Act.
Title VI, another provision in the Civil Rights Act, lays similar prohibitions on federally-funded institutions, such as most universities. As Gorsuch writes, applying past precedents on the Civil Rights Act on Title VI and Affirmative Action will yield a simple result: that it prevents “racial discrimination to any degree or for any purpose.”
The implications for this are straightforward: if “any degree” of racial discrimination is unlawful, including indirect discrimination, then the indirect consideration of race, such as the muted form of affirmative action advocated by the aforementioned institutions and figures, is also unlawful.
Using this theory, conservatives could and should sue universities and corporations who continue to engage in affirmative action – not abstain from these tools because they associate them with the other side.
Like any tool, civil rights law and be used for good or ill. Parts of the left are committed to wielding it as a sword; conservatives should be prepared, as Kemi Badenoch said of the UK’s Equality Act, to use it as a shield.
Spencer Shia is reading law at the University of Chicago and was formerly president of the UCL Conservative Society.
In the wake of the 2020 US Supreme Court decision Bostock v. Clayton County, which held that Title VII of the Civil Rights Act of 1964’s protections against employment discrimination “because of sex” extended to LGBT individuals, some conservatives were apoplectic.
Josh Hawley, a senator, took to the floor of the Senate to argue that if such a result could be achieved, it “represents the end of the conservative legal movement”. In the following months Ted Cruz, his Senate colleague, indicated that he expressed concern to the White House about nominating Justice Neil Gorsuch, who wrote the majority opinion in Bostock.
Underlying these comments is a conservative scepticism of expanding civil rights law. There are many, likeHawley, who do not want to create new protected categories in equality legislation, or apply civil rights law to novel circumstances.
Scepticism about the over-extension of civil rights law, which could lead to intrusive social engineering or the state-sponsored imposition of woke policies on civil society is healthy.
Nonetheless, in today’s political environment, civil rights law can also be a useful tool to achieve conservative ends, and to stymie the left’s weaponization of private institutions.
Such law requires both government and private actors to not discriminate on the basis of protected characteristics: Title VI of the Civil Rights Act of 1964 prohibits government funding to private organizations that discriminate on the basis of race, colour, or national origin; Title VII applies the same to employers and extends a further protection on the basis of sex; Title II prevents discrimination in public accommodations, whether they be privately owned or not.
In the current age, conservatives and conservative values are being threatened in private institutions. Consider the examples of social media and affirmative action.
Large social media platforms have been censoring conservatives. Following Elon Musk’s acquisition of Twitter, files were released indicating that Twitter artificially limited the reach of conservative users on the basis of their views. Recent litigation revealed that the Biden Administration pressured social media platforms to remove conservative views on the COVID-19 pandemic, including the now mainstream view that the virus originated in a Wuhan research lab.
Civil rights law offers the building blocks to stymie the left’s weaponization of social media against conservatives. In fact, it already has: the states of Florida and Texas have, in the spirit of Title II of the Civil Rights Act, passed legislation requiring large social media platforms to not engage in viewpoint discrimination while undertaking content moderation.
In this age, where a greater share of communications takes place online, such laws will ensure that conservatives have the means to communicate and share their views.
The left, meanwhile, has made clear their intention to use social media to censor conservatives, be that Representative Alexandria Ocasio-Cortez chastising Facebook for running ads without “fact checks” and so-called experts calling the social media censorship of Donald Trump “too little, too late”.
An amendment to Title II, identifying large social media platforms as public accommodations and adding political ideology and viewpoints as protected categories, would go a long way toward protecting conservative speech by opening up the federal courts to lawsuits against private actors that try to discriminate against conservatives.
Then there’s affirmative action. Until the recent Supreme Court decisions, universities discriminated against asian and white applicants to artificially increase the number of black and Hispanic students.
Race was used to deselect candidates from the final shortlist for admission to Harvard College, and admissions offices artificially deflating the “personality” scores of Asian applicants – despite the fact that the interviewers who actually met the applicants gave asians about the same personality scores as applicants of other races.
Although higher education has been in the spotlight, similar diversity-hiring initiatives take place in woke corporations too.
The recent Supreme Court decision, which bans the independent consideration of race, was doubtless an improvement. However, it still allows universities to indirectly consider race in their discussion of race in admissions essays, if it reveals non-racial qualities of an applicant, such as their “courage” or “determination”.
Thus while the ruling prevents the most egregious forms of affirmative action, such as deflating the personality scores of asian applicants or considering race when deselecting applicants from a shortlist for final admission, a muted form may yet survive by indirect means.
Harvard University mentioned the Supreme Court’s qualification in their statement expressing disappointment at the decision before stating that they will “follow the ruling”, implying that they will seek to indirectly consider race; Asha Rangappa, an admissions officer at Yale University’s Jackson School, tweeted that the Supreme Court decision may allow for more diversity-oriented admissions policies.
Here, no legislation is needed. Litigation and the application of the precedents of the Civil Rights Act is enough. Neil Gorsuch noted, in his concurrence in the consolidated Affirmative Action cases SFFA v. Harvard and SFFA v. UNC, that the Supreme Court has applied a plain, textualist interpretation of the Civil Rights Act.
What he means by that is that, for example, the aforementioned Bostock case saw the Supreme Court applying a near-literal interpretation of Title VII’s phrase “because of sex” to extend its protections to LGBT individuals, as biological sex plays a role in the identities and behaviours of LGBT individuals.
Thus, the logic goes, firing of an LGBT person would not have transpired had the LGBT person been of a different sex. Hence, even the indirect consideration of protected categories is prohibited by the Supreme Court’s precedents on the Civil Rights Act.
Title VI, another provision in the Civil Rights Act, lays similar prohibitions on federally-funded institutions, such as most universities. As Gorsuch writes, applying past precedents on the Civil Rights Act on Title VI and Affirmative Action will yield a simple result: that it prevents “racial discrimination to any degree or for any purpose.”
The implications for this are straightforward: if “any degree” of racial discrimination is unlawful, including indirect discrimination, then the indirect consideration of race, such as the muted form of affirmative action advocated by the aforementioned institutions and figures, is also unlawful.
Using this theory, conservatives could and should sue universities and corporations who continue to engage in affirmative action – not abstain from these tools because they associate them with the other side.
Like any tool, civil rights law and be used for good or ill. Parts of the left are committed to wielding it as a sword; conservatives should be prepared, as Kemi Badenoch said of the UK’s Equality Act, to use it as a shield.