What Is Replacing DEI? Racism.

I am told on good authority that now is the time to look for common ground with critics of diversity, equity, and inclusion. Concede overreach and avoid conflict, goes the guidance. Compromise and compliance are not complicity: Those who defend DEI and those who attack it differ over which policies best honor the idea that all are created equal, but they agree on that idea.

Here’s the thing: I don’t buy it. The logic of the multi-pronged assault on DEI in higher education — which includes, among other elements, a Supreme Court case, a Dear Colleague letter, and purges at service-academy libraries — sees racial inequality not as something to be overcome but as the natural order of things. With such a view, there can be no compromise.

In 2023, the U.S. Supreme Court effectively ended the use of affirmative action in college admissions. The 6-3 majority opinion in Students for Fair Admissions v. Harvard held that, by considering applicants’ race, Harvard and the University of North Carolina had violated the 14th Amendment’s equal-protection clause, which bars government from discriminating on the basis of race. In the majority opinion, Chief Justice John Roberts wrote that an applicant “must be treated based on his or her experiences as an individual — not on the basis of race,” and that race-conscious admissions programs have “concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin.” Admissions policies at Harvard and UNC did not, the majority held, comply with the equal-protection clause’s purpose of “doing away with all governmentally imposed discrimination based on race.”

More recently, the Trump administration has sought to extend the Court’s ruling to cover an increasingly wide range of educational policies and practices. In his February 14 Dear Colleague letter, the Department of Education’s acting assistant secretary for civil rights stated: “Although SFFA addressed admissions decisions, the Supreme Court’s holding applies more broadly. At its core, the test is simple: If an educational institution treats a person of one race differently than it treats another person because of that person’s race, the educational institution violates the law.” This interpretation far outruns the majority opinion in SFFA. Nevertheless, it partakes in its spirit: Students are to be treated as “individuals” and not on the basis of race.

The Dear Colleague letter goes further still, warning colleges that even programs that “appear neutral on their face” are impermissible if they are “motivated by racial considerations”: “It would, for instance, be unlawful for an educational institution to eliminate standardized testing to achieve a desired racial balance or to increase racial diversity.”

Here the target of criticism shifts from efforts to tackle racial imbalance by means of race-conscious decision-making to race-neutral efforts to achieve the same goal. It isn’t immediately clear how eliminating standardized testing might involve what the letter calls a “proxy for race,” but apparently the principle is that removing an impediment to achieving a more racially diverse student body would be impermissible if achieving a more racially diverse student body were the rationale for removing it. What the letter suggests is that efforts to achieve racial balance or to increase racial diversity are impermissible, regardless of the means employed.

This latter claim — that even apparently neutral means are unlawful — represents a significant departure from both the letter and the spirit of SFFA. By conflating so-called race-based decision-making (i.e., race-conscious programs) and decision-making that is “motivated by racial considerations” (i.e., aimed at correcting racial imbalances), the Dear Colleague letter rejects not simply some means of achieving the goal of racial proportionality but the goal itself.

The Dear Colleague letter’s repudiation of the goal of achieving “racial balance” is consistent with other moves by the Trump administration to roll back so-called DEI programs. Indeed, by making explicit the administration’s position, the letter sheds light on what otherwise might seem a bewildering cascade of abrupt changes to federal policy and practices. What unites these changes is not merely a formal conception of equality but a normative conception of racial inequality.

If you’re searching for the secret heart of the war on diversity, look no further than the controversial University of Pennsylvania law professor Amy Wax. The core of Wax’s view is that racial disparities within, say, the medical profession are the result not of structural impediments or systemic racism but of real differences of ability among racial groups. Here is Wax writing in the William & Mary Law Review:

The idea here is that the workplace is a meritocracy. Those with the ability to succeed will thrive; those without it will be winnowed out. What explains the underrepresentation of “blacks, and to a lesser extent Hispanics” in certain skilled professions, Wax claims, is a lack of aptitude on their part. Wax calls her position “disparate impact realism”: “The harsh reality is that more capable people tend to perform better at work, and that minorities — most notably blacks and to a lesser degree Hispanics — know less and possess fewer skills, on average, than whites and Asians across a number of domains that reflect modern workplace demands.”

Wax likes to represent herself as asking taboo questions. Her views on race have never been difficult to discern, but in recent years, she has made them more explicit. In an interview with Glenn Loury, Wax declares, “I am a race realist.” Race realism is generally understood as the view that race is an explanatory factor: Differences of racial character are said to explain differences of outcome across populations. For race realists, race is not a social construct with a cultural history but an objective fact about humanity. Writing in The American Conservative last year, Wax urges “serious engagement” with the claims of “hard realism,” such as “evidence from genomics and other sources that some racial differences, including in cognitive ability, are at least partly innate” and that “acknowledging innate differences is the only effective way to defeat unceasing demands to close racial gaps.”

If this sounds like racial pseudoscience of the sort peddled by Charles Murray, that is because it is. While plenty of sociologists would point to differences of “social capital” to explain differences in average professional attainment across groups, few would agree that these disparities are a result of an independent variable called “race.” Most geneticists similarly recognize that race is socially constructed and forcefully reject the attempt to use genetics to rank populations.

Wax’s conclusions are straightforward: Because employers should be free to hire the best qualified workers, they should not be faulted for maintaining a disproportionately white work force. Whereas federal law provides that discrimination can exist where a facially neutral policy results in unequal outcomes among different groups, a doctrine known as “disparate-impact liability,” articulated by the Supreme Court in Griggs v. Duke Power Company in 1971, Wax claims that divergent outcomes are to be expected as a result of real differences of ability among racial groups and ought not to be taken as evidence of a flawed policy.

Something like this conclusion — that racial disparities should be understood not as injustices to be rectified but as reflective of differences of average ability among people of different racial groups — is, I believe, the key to understanding much of today’s opposition to the values of diversity, equity, and inclusion. This opposition is not a good-faith contribution to the debate over how most effectively to bring about an equitable society. It is not the claim of the Roberts Court that a “color-blind society” — one in which racial differences do not correlate with differences of education, wealth, or health — can best be achieved by means of “color blind” methods. Rather, it is a repudiation of that very goal.

Wax is not alone in seeking to end disparate-impact liability. Kimberly West-Faulcon likens the campaign to overturn Griggs to the decades-long effort to overturn Bakke, the landmark 1978 Supreme Court decision that upheld affirmative action in college admissions. For these critics, diversity within a student body at an elite university, among the professoriate, and in other skilled professions can be achieved only through heavy-handed social engineering. It represents external interference in systems properly based on merit. For a skill-based organization to attempt to mirror the distribution of groups in the society as a whole is unjust, no matter its methods, because it assumes, incorrectly, that people of all groups are equally capable. In fact — or so the thinking of race-realists goes — white and Asian people are, on average, better qualified and so should comprise a larger percentage of most selective organizations.

The notion that white people are being held back, and less competent people of color promoted, goes a long way to explaining not only the seething resentment that has erupted over everything now being branded as “DEI” but also the shift in focus from methods to goals. It isn’t simply that Black applicants, say, are imagined to be receiving special treatment not afforded to white applicants; it is that anything less than a racially tiered society is understood as a miscarriage of justice, an inversion of the natural order of things. If racial taxa correspond to differences of average intelligence and ability, then a diverse workplace or law-school class is ipso facto undesirable, irrespective of how the diversity was arrived at. Roberts’s view is that equal opportunity will result in an equitable society. Wax’s argument is that it will result in a racially stratified one. Roberts’s view is ahistorical and naïve. Wax’s is repellent.

It is not difficult to see how it is possible to slide from a purely formal view of equality like Roberts’s to a substantive conception of inequality like Wax’s. Once structural and historical explanations for inequality are discounted, or declared irrelevant, what is left? The natural response is to “blame the victim.” This is precisely what Wax, who claims that “the taboo against blaming the victim has profoundly distorted thinking about race,” advocates. Rejecting historical and structural explanations pushes one toward race realism as an account of disparities.

This would appear to be the path taken by the current administration. A March 27 executive order titled “Restoring Truth and Sanity to American History” asserts that “Once widely respected as a symbol of American excellence and a global icon of cultural achievement, the Smithsonian Institution has, in recent years, come under the influence of a divisive, race-centered ideology.” As evidence, it cites an exhibit called “The Shape of Power: Stories of Race and American Sculpture” which, the executive order complains, “promotes the view that race is not a biological reality but a social construct, stating ‘Race is a human invention.’”

Meanwhile, acting on orders from Defense Secretary Pete Hegseth, military academies have removed library books by Black authors and books critical of racism. The New York Times reports that “civilian Navy officials, following orders originating from Mr. Hegseth, pulled from shelves books including one that critiqued The Bell Curve, a 1994 text that argues that Black men and women are genetically less intelligent than white people. But the academy kept The Bell Curve itself on its shelves.” Maya Angelou’s I Know Why the Caged Bird Sings has been removed, but “two copies of Mein Kampf by Adolf Hitler are still on the shelves.”

Racism is acceptable; “critical race theory” is not. Removing exhibits and books about racial injustice deprives students and the public of an understanding of the real reasons for racial inequities. Keeping books that promote racism and race realism provides them with a pseudo-explanation. Once historic injustices have been erased, efforts to correct them will inevitably seem unfair. Indeed, they will be called “racism.”

What is replacing DEI is not a system of individual merit but a reified understanding of racial difference. A refusal to admit and tackle racial injustices has given rise to explanations of racial gaps rooted in race realism. According to this view, efforts to deal with structural racism are to be rejected not because “race blind” means will yield equitable and diverse results, but because they will naturally give rise to the appropriate racial hierarchy. When they do not, or if employed in the pursuit of equity, they are suspect. DEI is now the catch-all term of abuse for anything that might upset this supposed natural order.

Seen in this light, the Dear Colleague letter’s example of standardized testing takes on new significance. The thought appears to be the following: If standardized tests are an impediment to diversity, it is not because they are biased, say, but — on the contrary — because they successfully sift the intellectual wheat from the chaff, resulting in a student body that is whiter and more Asian than the background population. Eliminating testing might achieve racial diversity but at the expense of quality control. If white students on average score better, eliminating testing to achieve racial balance would apparently, from the standpoint of the Department of Education, be illicitly treating scores as a proxy for race. What the letter ignores is that tests may have the effect of racial sorting due to bias or language, or because of inequities, and thus might not be a strong predictor of student success. (All of these are, of course, empirical questions.) To forbid their elimination because of its anticipated result of greater diversity, while ignoring structural explanations for why this might be the case, as the letter does, is, ironically, to treat higher scores as a proxy for whiteness, albeit with the end not of addressing an injustice but of maintaining it.

Higher education is the laboratory in which an alternative approach to racial disparities is being prepared for wider rollout. Indeed, in “Restoring Equality of Opportunity and Meritocracy,” an executive order issued on April 23, President Trump avers that “[i]t is the policy of the United States to eliminate the use of disparate-impact liability in all contexts.” Echoing Wax, the order claims that “disparate-impact liability has hindered businesses from making hiring and other employment decisions based on merit and skill, their needs, or the needs of their customers because of the specter that such a process might lead to disparate outcomes, and thus disparate-impact lawsuits.”

According to a White House spokesman, disparate-impact liability “wrongly equates unequal outcomes with discrimination and actually requires discrimination to rebalance outcomes.” Invoking the prospect of so-called reverse discrimination, Trump appeals to Roberts’s dictum: “As the Supreme Court put it, ‘[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.’” The executive order directs the attorney general to “initiate appropriate action to repeal or amend the implementing regulations for Title VI of the Civil Rights Act of 1964 for all agencies to the extent they contemplate disparate-impact liability.”

All of this is consistent with Wax’s view. “Indeed, as Charles Murray has shown in Facing Reality,” she wrote in 2023, “reverting to the original meaning of the civil rights laws, which means returning to a colorblind meritocracy, will drastically reduce and in some cases virtually eliminate the presence of some minorities, and especially blacks, in many of society’s most demanding, rewarding, and influential positions.” Is this the aim of the Trump administration? That the administration is of one mind is unlikely. What is clear is that something like race realism explains a lot that would otherwise not make much sense.