- According to the Declaration of Independence, America was founded on the principle that government exists to protect the equal rights of all the people
- Past attempts to put that principle into practice have failed
- Recent legislative proposals and judicial decisions suggest we may finally be ready to make it happen
House Bill (HB) 171 (“Equality in State Agencies/Prohibition on DEI”), currently before the General Assembly, would prohibit state agencies from discriminating “on the basis of race, sex, color, ethnicity, nationality, country of origin, or sexual orientation.” The bill was approved by the state House at the end of April and is now under consideration by the state Senate.
As it happens, there is already a substantial body of law that explicitly bans most of the kinds of discrimination addressed by HB 171:
- The 14th Amendment to the United States Constitution, which was ratified in 1868, states, “No State shall … deny to any person within its jurisdiction the equal protection of the laws.”
- Title VI of the Civil Rights Act of 1964 forbids discrimination “on the ground of race, color, or national origin … under any program or activity receiving Federal financial assistance” (and most state agencies receive federal assistance).
- Similarly, Title VII of the act makes it unlawful for employers to “discriminate against any individual … because of such individual’s race, color, religion, sex, or national origin” (and all state agencies are employers).
- Finally, the North Carolina State Constitution, which was ratified in 1971, declares, “No person shall be … subjected to discrimination by the State because of race, color, religion, or national origin.”
In view of all those existing laws forbidding discrimination, what possible need can there be for a bill like HB 171? The answer, of course, is that, in a series of decisions beginning with University of California v. Bakke in 1978, the U.S. Supreme Court determined that racial and ethnic “diversity” was such an important objective that it justified violating the seemingly categorical bans on discrimination cited above. (See also Steelworkers v. Weber in 1979 and Grutter v. Bollinger in 2003.)
In response, organizations — including many state agencies in North Carolina — that wanted to discriminate in favor of blacks and other formerly disfavored groups began to issue “diversity” statements and announce “diversity” policies. They also began to hire a new type of bureaucrat to administer those polices: the “diversity, equity, and inclusion” (DEI) bureaucrat. DEI administrators were hired, and DEI departments were put in place all over the country on the assumption that Americans would go on accepting diversity as an excuse for discrimination forever. As it turned, however, they didn’t.
Several factors led to a widespread rejection of DEI. Among these were the realization that racial preferences might be harming their supposed beneficiaries by placing them in institutional settings for which they were unqualified. Another was the discovery that it was Asians rather than white Americans who were bearing the brunt of the discrimination that was taking place in the name of diversity. A third reason was the extent to which the diversity industry aligned itself with ideological extremists in the “critical theory” and “woke” movements.
The resulting backlash against DEI helped Donald Trump win the presidency in 2024, and since taking office he has issued several executive orders dealing with DEI. His administration has been vigorously investigating and prosecuting Civil Rights Act violations by a wide variety of organizations, including a number of high-profile law firms and universities. Here in North Carolina, the response to the anti-DEI backlash includes not just HB 171, but Senate Bill (SB) 227 (“Eliminating ‘DEI’ in Public Education”) and SB 558 (“Eliminating ‘DEI’ in Public Higher Ed”), both of which have just been approved and sent to the governor.
Trump’s executive orders and his other anti-DEI measures are being reviewed by the courts, and it’s far from certain that any of the recently introduced anti-DEI bills will be enacted into law. Regardless of how the litigation over Trump’s executive order plays out, however, and regardless of whether HB 171 and the other bills listed above are enacted, there are good reasons to think DEI’s days are numbered both nationally and here in North Carolina.
In 2023, in SFFA v. Harvard and SFFA v. UNC, the U.S. Supreme Court decided that diversity would no longer be accepted as an excuse for discrimination, at least as far as higher education was concerned. On June 5, in Ames v. Ohio Dept. of Youth Services, the court made a similar decision regarding discrimination by employers. The fact that the latter decision was unanimous suggests that the court is fully committed to enforcing federal civil rights laws as written. If we are lucky, the North Carolina Supreme Court will do the same for the anti-discrimination clause of the state constitution.
That would be inconvenient for those who have made careers in the DEI bureaucracy, and it would be frustrating for those who are committed to woke ideology. The Founding Fathers, however, would be pleased. In 1776, they declared:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.
America has been trying to live up to that ideal ever since. Two previous attempts to do so — the ratification of 14th Amendment in 1868 and the passage of the Civil Rights Act in 1964 — were frustrated by the Supreme Court’s failure to enforce them as written. Now that the Supreme Court has decided that “equal” means “equal,” we have another opportunity to become the kind of country the Founders wanted us to be: one in which the government protects the equal rights of all the people. Wouldn’t that be a nice way to celebrate the 250th anniversary of American independence?
