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civil rights act
Trump and the Supreme Court Try to Return the US to the 19th Century
With the Supreme Court’s rulings against the Voting Rights Act and the Trump administration’s refusal to enforce the Civil Rights Act, they are trying to repeal the legacy of the civil rights movement.
May 26, 2026
On December 18 1865, Congressman Thaddeus Stevens, Republican from Pennsylvania, during debate on how to treat the traitorous Confederate states and on support for newly freed people who had been enslaved in the United States and in British North America for almost 250 years, warned, “If we fail in this great duty now, when we have the power, we shall deserve and receive the execration of history and of all future ages." The United States failed to rectify injustice in the past, and it is failing once again.
Nikole Hannah-Jones, a key contributor to The New York Times’ award winning The 1619 Project, recently wrote that “The Civil Rights Era Is Collapsing Before Our Eyes.” In Tennessee, the white-dominated Republican controlled state legislature eliminated the state’s only Black majority congressional district after the MAGA-dominated Supreme Court ruled that congressional maps that ensured political representation for African Americans and other racial minorities now violated the Constitution. Other white-dominated, Republican-controlled states are racing to make similar changes. It is as if the Republican Party, with the aid of the Supreme Court, is trying to return the United States to the level of racism that dominated the country in the 19th and first half of the 20th century.
After the Civil War, Congress passed and the states ratified the 13th, 14th, and 15th Reconstruction Amendments to the United States Constitution. The 13th Amendment ended chattel slavery in the United States. The 14th Amendment defined citizenship to include people born in the United States with very limited exceptions and ensured that all persons, whether citizens or not, were entitled to legal due process. The 15th Amendment prevented states and localities from denying Black men the right to vote. Each amendment included a clause that “Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” Rebelling Confederate states were required to approve the 14th and 15th Amendments to fully reenter the Union.
A right-wing dominated Supreme Court then proceeded to systematically emasculate the amendments and supporting legislation including the Civil Rights Act of 1866, the Reconstruction Acts of 1867, the Enforcement Acts of 1870 and 1871, and the Civil Rights Act of 1875. The first Civil Rights Act enforced the 13th Amendment after a number of Southern states passed "Black Codes" to limit the rights of freedmen, and the Reconstruction Acts required the former Confederate states to accept the 14th Amendment. The Enforcement Acts provided federal protection for voting rights that were being interfered with by organizations like the Ku Klux Klan. The Civil Rights Act of 1875 targeted racial segregation and guaranteed African Americans equal treatment in public accommodations including hotels and theaters and transportation and prohibited attempts to exclude them from juries. To put teeth in enforcement, violations were tried in federal, not state courts.
The Trump administration has launched a systematic campaign to undermine civil rights protections passed into law and approved by the Supreme Court in the 1950s and I960s.
In 1873, in the Slaughter-House Cases, the Supreme Court limited the ability of African Americans to sue in federal courts against discriminatory state laws. In 1876, in the United States v. Cruikshank, the court ruled that the 14th Amendment did not apply to private acts of violence, preventing federal authorities from prosecuting hate crimes, and in the 1883 United States v. Harris case the Court threw out the Enforcement Acts because Congress did not have the authority to punish private groups like the Ku Klux Klan for conspiring to violate the civil rights of African Americans.
The most damaging court decision was in a consolidated case known as the Civil Rights Cases. In 1883, by an 8-to-1 majority, the Supreme Court declared the Civil Rights Act of 1875 unconstitutional. The majority ruled that the 14th Amendment only applied to discrimination by state or local governments and did not permit the federal government to prohibit discrimination by private individuals. The only dissenting justice was John Harlan, who argued that government and individual actions often overlapped and the court was interpreting the 14th Amendment too narrowly. Harlan was also the only justice to vote against the majority decision in Plessy v. Ferguson (1896) that established that the Constitution permitted racially segregated “separate-but-equal” facilities.
It was not until the 1950s and 1960s, in what has been called the Second Reconstruction, that Supreme Court decisions and federal legislation, under intense pressure from the African-American civil rights movement, restored civil rights for African Americans stolen by a conservative Supreme Court in the 1870s, 1880s, and 1890s. The best known Supreme Court decision was in Brown v. Board of Education of Topeka in 1954. Brown combined five cases challenging the legality of school segregation pursued by the NAACP and the legal team headed by Thurgood Marshall. In a unanimous decision, the Supreme Court under the leadership of Chief Justice Earl Warren ruled that segregated schools established a racial caste system and violated the equal protection clause of the 14th Amendment. In other decisions, the Warren Court ruled that Mexican Americans and all other racial groups had equal protection under the 14th Amendment (Hernandez v.Texas, 1954); that segregation in facilities serving interstate transport was illegal (Boynton v. Virginia, 1960); that election districts intended to prevent the election of Black representatives violated the 15th Amendment by disenfranchising Black voters (Gomillion v. Lightfoot, 1960); against segregation in public accommodations overturning the 1883 Civil Rights Cases decision (Heart of Atlanta Motel, Inc. v. United States, 1964); the federal government had the authority to abolish discriminatory literacy testing for voter registration (South Carolina v. Katzenbach, 1966); state laws banning interracial marriages were unconstitutional (Loving v. Virginia, 1967); and that the Fair Housing Act of 1968 banning discrimination in the sale of rent of housing was constitutional (Jones v. Alfred H. Mayer Co., 1968).
Federal civil rights legislation passed in the Second Reconstruction included the Civil Rights Act of 1957. It was the first federal civil rights law passed by Congress since 1875. This law established the United States Commission on Civil Rights and a Justice Department Civil Rights division to investigate charges of racial discrimination. A 1960 law established federal penalties for interfering with someone’s ability to vote. Federal courts were authorized to appoint officials to assist African Americans in registering to vote in states and localities with a documented history of discrimination, and the 24th Amendment, ratified in 1964, outlawed poll taxes.
The two most important pieces of federal legislation during this period were the Civil Rights Act of 1964 and the Voting Rights Act of 1965. The Civil Rights Act outlawed segregation in public accommodations including hotels, restaurants, and theaters; ended discrimination in employment based on race, color, religion, sex, or national origin; and created the Equal Employment Opportunity Commission to enforce these regulations. Title VII of the Civil Rights Act established the “disparate impact” legal standard which was upheld by the Supreme Court in Griggs v. Duke Power Co. (1971). The disparate impact standard prohibits policies that disproportionately impact protected groups and does not require proof of discriminatory intent. It was later codified in the Civil Rights Act of 1991.
The Voting Rights Act included a number of key provisions. It allowed people to sue to overturn discriminatory laws and voter registration and candidate nomination procedures and provided for federal legal assistance. It also required states and localities with histories of discrimination to obtain prior approval from the Department of Justice or a federal court before changing voting rules. As a result of the Voting Rights Act, the racial disparity in voting registration rates declined from about 30% to 8% 10 years later. As a result of the Voting Right Acts, In addition, the number of Blacks serving in Congress increased from four in 1960 to 62 in 2023. In 2006, the Voting Rights Act was reauthorized by Congress with wide bipartisan support.
However, since 2013, the Supreme Court has whittled away at voter protection for minority groups. In a 2013 decision in Shelby County v. Holder, the court eliminated the pre-clearance requirement of the Voting Rights Act of 1965. In 2021 the Supreme Court made it more difficult to bring lawsuits challenging discriminatory voting rules, and in 2026, in Louisiana v. Callais, the court further gutted the Voting Rights Act, allowing state governments to redraw election districts dividing up Black communities so it would be more difficult to elect Black officials.
The Trump administration has launched a systematic campaign to undermine civil rights protections passed into law and approved by the Supreme Court in the 1950s and I960s. In an attack on the Civil Rights Act of 1964, President Donald Trump issued an executive order in April 2025 ordering federal agencies not to support or enforce disparate impact claims, arguing that it was discrimination against white people and violated its interpretation of the equal protection of the law. The administration has cut funding for enforcement of fair housing laws, equal employment opportunities, and environmental justice for minority communities disprotortionately impacted by climate change and pollution.
With the Supreme Court’s rulings against the Voting Rights Act and the Trump administration’s refusal to enforce the Civil Rights Act, they are trying to repeal the legacy of the Second Reconstruction and return the United States to the era of Jim Crow segregation and racism institutionalized in the 19th century.
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Children Are in the Crosshairs of Trump and McMahon's Attack on Public Education
The pair's efforts to return education to the states appear motivated not by improving educational outcomes, but by creating tax breaks for the rich while privatizing public education and weakening teachers’ unions, a pillar of the Democratic Party.
Sep 27, 2025
After surviving a contentious US Senate confirmation hearing, Linda McMahon, the former World Wrestling Entertainment CEO turned secretary of education, received a profound first directive from President Donald Trump: “Put yourself out of a job.” Like other appointees, Mrs. McMahon has done exactly as ordered by a president who accepts nothing less.
As Secretary, McMahon has championed Trump’s executive order dismantling her department and delivering its K-12 responsibilities to state and local governments. She has fired 1,315 department employees, targeting jobs in the Office for Civil Rights and the Institute of Education Sciences, groups that investigate civil rights complaints in schools and provide advice on best practices in teaching. As a result, the department’s staff has been nearly halved since January.
And now Secretary McMahon is spiking the ball in a 50-state tour called “Returning Education to the States.” More than a celebration of the administration’s defeat of brainy bureaucrats at the Department of Education, the tour touts the passage of the “Educational Choice for Children Act” (ECCA) as part of the president’s “One Big Beautiful Bill.” The act creates a national opt-in voucher system for students to attend private or religious schools, to be funded by an extraordinarily generous dollar-for-dollar tax credit for donations to Scholarship Granting Organizations.
The problem is that in these related cases—the attacks on the department of education and the creation of a national voucher system—Secretary McMahon and President Trump are not acting in the interests of students, nor do they seem to be thinking about them at all. These efforts to return education to the states appear motivated not by improving educational outcomes, as we’ll explore, but by creating tax breaks for the rich while privatizing public education and weakening teachers’ unions, a pillar of the Democratic Party.
But First, a Little Backstory...
To fully grasp the stakes of the attack on the Department of Education, we must remember why the federal government got involved in education in the first place. Conservatives rightly note that the Constitution does not mention education, leaving it instead as a reserved power for the states. They’re also correct that despite providing only 10% of total public school funding, the role of the federal government in education has grown significantly over the past half-century.
Yet federal power in education grew neither by accident nor by conspiracy, but in response to systemic failures that states could not and in some cases would not address.
In 1965, following the Civil Rights Act and amid the War on Poverty, the Johnson administration sought to tackle two forms of intransigence: the South’s resistance to school integration and the persistence of poverty amid plenty. A former schoolteacher himself, President Lyndon Johnson proposed the Elementary and Secondary Education Act (ESEA), which directed federal funds, called Title I, to low-income schools and students. Crucially, it tied Title I funding to compliance with desegregation orders. This strings-attached model became the foundation of the federal approach to K-12 education and is critical to understanding its outsized voice.
When Secretary McMahon announced that her “Returning Education to the States” tour would kick off in Louisiana, Arkansas, and Tennessee, it sounded like yet another state’s rights dog whistle.
Flash forward a decade: When President Jimmy Carter created the Department of Education in 1979, conservatives saw it as the fulfillment of a politically motivated campaign promise to secure support from the National Education Association, the largest teachers’ union in the country. Politics was surely part of the calculus, which conservatives have long resented.
Yet beyond the politics of the moment, the new department was also created to increase efficiency and effectiveness, allowing the federal government to consolidate its education-related functions into a single agency. Navigating the two largest streams of K-12 funding—Title I and IDEA—would be less complicated under its purview. Continuing the strings-attached model, the department established an Office of Civil Rights to investigate whether schools receiving funds were in compliance with federal civil rights laws. But this last piece represented a continuation of federal oversight that some states resented, especially across the South.
So in 1980, when Ronald Reagan campaigned against the new department and called for returning control to the states, he appealed—intentionally or not—to two groups. The first were earnest conservatives who, after decades of government expansion, sought a renewed federalism that would respect greater state and local autonomy. The second were those who felt the federal government had overreached, in schools and elsewhere, by enforcing civil rights laws in the South. Reagan’s advisors seemed to understand this double-meaning and tapped into it with dog whistles, directing the Gipper to open his 1980 campaign with a “state’s rights” speech in Neshoba, Mississippi, a town made infamous by the 1964 murders of three prominent civil rights activists.
President Reagan was ultimately unable to get rid of the Department of Education. Instead, Reagan decided that if he couldn’t kill the department, he would render it useless by appointing leaders, like Secretary William Bennett, who did not believe in its purpose. This was the template for Trump’s appointment of both Betsy Devos and Linda McMahon.
Back to the Present
When Secretary McMahon announced that her “Returning Education to the States” tour would kick off in Louisiana, Arkansas, and Tennessee, it sounded like yet another state’s rights dog whistle. Compounding that feeling is the fact that the secretary’s layoffs in March targeted the department’s Office for Civil Rights, leaving it unable to perform its oversight and investigative duties and leading to a long list of civil rights cases that may never be reviewed.
But more than civil rights oversight is at stake. The Institute of Education Sciences, which researches best practices in teaching and provides comparative data about educational outcomes, was also targeted in the Secretary’s layoffs. The institute additionally oversees the National Assessment of Educational Programs (NAEP) tests, which are used to gauge academic achievement by various measures across the country.
None of this is in the interests of students.
President Trump and Secretary McMahon have shown no consideration of the fact that, as research suggests, many of these programs will fail students, affecting millions of children nationwide.
The growing backlog of cases in the Office for Civil Rights does nothing to protect vulnerable students, just as the effective shuttering of the Institute of Education Sciences does nothing to improve teaching and learning. But rendering the Office for Civil Rights useless does give cover to states to do as they please—and if doing so hurts test scores, a dataless Institute of Education Sciences will lack the information critical for accountability.
Secretary McMahon and President Trump have also expressed interest in turning Title I, the largest stream of federal money for K-12 education, into block grants. Doing so, as Project 2025 advises, would give states greater discretion over how the funds are used. Without vigorous oversight, it is likely that some states would not direct the money toward low-income schools and students. The president has already issued guidance for how states can redirect Title I money into voucher programs and, according to Politico, has worked with House Republicans to propose a $5.2 billion cut to the program for fiscal year 2026.
But the most immediate push for vouchers comes in an overlooked part of the “One Big Beautiful Bill,” called the “Educational Choice for Children Act” (ECCA). It establishes the first national voucher system, allowing students in states that opt in to use vouchers to send students to private or religious schools. The program is funded through federal tax credit. These breaks are an unusually generous dollar-for-dollar credit on any donation to Scholarship Granting Organizations. And, shockingly, donations can include stocks that will be valued at their pre-capital gains amount, meaning donors will save more from the donation than they would make from cashing out the stock.
More than an appealing program for the wealthy, the ECCA voucher program is politically appealing to Republicans because it undermines public schools—and their teachers’ unions—in states that opt in. When students accept vouchers to leave for private schools, the traditional public school they previously attended loses that money, forcing them to continue providing the same services for all students but with less funding. And while conservatives frame this as “school choice,” the choice lies equally with private schools that, unlike public schools that are required to educate every student, have the right to reject applicants on the basis of talent, character, and even disability—leaving public schools to educate only the most challenging students.
In other words, the program sets up public schools to fail—and when they do, they will likely be blamed for their own failure, leading to additional disinvestment and greater failure.
One thing is clear: The ECCA voucher program, like the rest of Trump and McMahon’s K-12 policy, isn’t about helping students, nor is it even about education; it’s about fattening pockets and weakening political opponents. The tax credit is a boondoggle for the wealthy at a cost of billions to the public. But the credit is also a tool for attacking a pillar of the Democratic Party by undermining traditional public schools and teachers’ unions. Children are in the crosshairs of this battle but under Trump, the Republican Party is unwilling to value them above entrenching their own political power and financial interests.
It is a tragic moment in K-12 education. To be clear, there are valid debates about school choice and vouchers. There have even been successes in certain targeted voucher studies, and we should learn from them. But overwhelmingly, recent studies show that voucher programs have yet to scale well and have consistently led to lower test scores. Indiana, Louisiana, and Ohio have large, longstanding voucher programs. In the past decade, each has witnessed a decline in math and reading scores for students entering from public school.
In 2016, researchers at Tulane University found that voucher users who performed “at roughly the 50th percentile” before entering the program fell “24 percentile points below their control group counterparts in math after one year.” Martin West, professor of education policy at Harvard and a 2012 campaign adviser to Mitt Romney, described the results as “as large as any” he’s “seen in the literature.” Results are similarly poor in Ohio, where the erstwhile voucher-supporting Thomas B. Fordham Institute concluded, “Students who use vouchers to attend private schools have fared worse academically compared to their closely matched peers attending public schools.”
Even in the best cases of scaled-up experiments, as in Florida and Arizona, results are mixed. Some studies suggest slight academic improvement while others range from no benefit to moderate academic decline. And yet without nuance or humility, the Trump administration is all-in on vouchers as the future of education, at least in the Republican-led states. President Trump and Secretary McMahon have shown no consideration of the fact that, as research suggests, many of these programs will fail students, affecting millions of children nationwide.
If the administration truly had a non-ideological interest in vouchers as part of a commitment to improving educational outcomes, they would recognize the shortcomings of many recent voucher experiments and propose more targeted voucher programs that expand on areas where they’ve shown some success.
But they haven’t done that because it’s not about students. And for all the wrong reasons, we’re about to scale vouchers across much of the country at a time when the Department of Education, the leading K-12 oversight body, is on life support.
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Stop Trump and His Supreme Court From Tightening the Circle of Personhood
The right-wing Supreme Court, in rulings on Trump administration policies, has done its best to murder what's left of civil rights in the United States.
Sep 26, 2025
Warning: dangers in the mirror are often closer than they may appear. In other words, the next few paragraphs may seem to be hyperbole but are, in fact, expressions of reality (animated by a cold fury).
On September 8, 2025, the Supreme Court did its best to murder what’s left of civil rights in this country. As Charlie Savage of the New York Times reported, in an unsigned 6-3 ruling, it overturned a lower court’s order forbidding Immigration and Customs Enforcement and the Border Patrol in Los Angeles from stopping, interrogating, and detaining people based on any of four factors: “apparent race or ethnicity; the fact that they speak English with an accent or speak Spanish; their presence at particular locations like farms or pickup sites for day laborers; and the type of work they do.”
Those six conservative justices might as well have stood in front of the court and set fire to the 1964 Civil Rights Act, which outlawed segregation and discrimination based on race, religion, sex, or national origin in a wide variety of venues and actions, including public accommodations, education, the provision of government services, housing, transportation, and voting. The Civil Rights Act outlawed exactly the kind of racial profiling now being practiced—and permitted by our highest court—in the Trump administration’s war on immigrants.
While they were at it, those six robed arsonists might as well have burnt the Constitution’s Fourth Amendment, which outlaws unreasonable searches and seizures and requires a court-issued warrant for arrests. They could have added the 14th Amendment to their bonfire, which was one of three passed and ratified during the Reconstruction period following the Civil War. Those three amendments established full citizenship rights for emancipated Blacks and future generations of US denizens, regardless of race. The 13th Amendment, of course, outlawed slavery, and the 15th secured voting rights for all (male) citizens regardless of race, color, or previous conditions of servitude. The 14th Amendment, while establishing birthright citizenship, also guarantees “all persons” (regardless of citizenship status) due process under the law—including those suspected of being in the country illegally.
Centuries of Struggle Undone
No one gave us those rights. Successive generations of Americans fought for them, starting in the late 1780s and in the 1791 passage of the Bill of Rights, the first 10 amendments to our Constitution. That’s when the Fourth Amendment established the rights that centuries later would be invoked to prevent people from being stopped for “driving while Black” or seeking work while looking Latino. (It’s also when, thanks to the First Amendment, we secured freedom of speech and the press, which gives me the right to state publicly, even in the wake of his despicable assassination, that the founder of Turning Point USA, Charlie Kirk, built his organization on explicit contempt for women, especially women of color, and LGBTQ people.)
It took a civil war and the deaths of almost 700,000 soldiers on both sides to end legal slavery in this country and give us those three Reconstruction amendments, passed between 1865 and 1870.
As we’ve seen repeatedly, the hard-won legal remedies for racism are now being turned against both the historic and present-day targets of racism.
And it took decades of mostly nonviolent struggle and sacrifice (and more deaths) to win passage of the 1964 Civil Rights Act and the 1965 Voting Rights Act. Those two laws essentially reiterated the same rights that had been secured back in the 1860s but had been denied in practice in the Southern states of the former Confederacy. “Denial” is a weak word for the life-destroying discrimination and segregation that was then systematically enforced by state-sponsored terrorism (all too often in the form of lynching) against those accused of violating the Jim Crow regime of that era.
The Supreme Court had already torn the guts out of the Voting Rights Act in 2013, deciding in Shelby County v. Holder that states with a history of race-based voter suppression would no longer have to seek “preclearance” from the Department of Justice for changes to their voting procedures. The court’s argument was essentially that voting discrimination no longer exists in the states named in the 1965 Voting Rights Act. Justice Ruth Bader Ginsburg dissented, observing that ending preclearance was like “throwing away your umbrella in a rainstorm because you are not getting wet.”
The fact that a storm of suppression was indeed still raging became clear almost immediately, as affected states began passing laws making it more difficult for people of color to vote. Ironically, US President Donald Trump’s crew hasn’t yet completely purged the Department of Justice’s website of support for voting rights. You can, for instance, still find there a 2023 blog post by Assistant Attorney General Kristen Clarke lamenting the depredations of Shelby and praising the Biden administration’s support for the—never passed—John Lewis Voting Rights Advancement Act as a remedy.
Now, in a one-paragraph decision, the six right-wing justices, appointed by a series of Republican presidents including Trump, have made another contribution to his administration’s all-out attack on race and gender equality. Justice Brett Kavanaugh found it necessary to amplify the court’s decision in a lengthy concurrence. In words untethered from the real world, he wrote:
The Government sometimes makes brief investigative stops to check the immigration status of those who gather in locations where people are hired for day jobs; who work or appear to work in jobs such as construction, landscaping, agriculture, or car washes that often do not require paperwork and are therefore attractive to illegal immigrants; and who do not speak much if any English. If the officers learn that the individual they stopped is a US citizen or otherwise lawfully in the United States, they promptly let the individual go.”
Let me repeat that: “If the officers learn that the individual they stopped is a US citizen or otherwise lawfully in the United States, they promptly let the individual go.” Tell that to Kilmar Abrego García.
Oh, California
In the last few decades, some very bad ideas have come out of my own state, California. This may surprise readers who think of Californians as living in a great blue expanse on the country’s “Left Coast.” They may think our governor, Gavin Newsom, is an avatar of liberalism. (Despite my criticisms of the man, I will admit that his recent trolling of Donald Trump’s ALL-CAPS MEDIA STYLE is pretty funny.)
Nevertheless, some seriously bad ideas have triumphed as ballot propositions here. In 1978, there was Proposition 13, which made it all but impossible to raise taxes in the state—especially property taxes, which provide almost half the funding for our public schools. That “taxpayer revolt” (as it came to be known) spread rapidly to other states. Then, in 1994, Republican Gov. Pete Wilson transformed his flagging reelection campaign by inflaming white anxiety about immigration in California. He launched a series of TV ads with the tag line “they keep coming,” a reference to people crossing the Mexican border looking for work in my state. Weaponizing white anxiety was something Donald Trump would borrow when he ran for president in 2016, 2020, and 2024.
To ramp up his 1994 gubernatorial campaign, Wilson endorsed the anti-immigrant Proposition 187, or “Save Our State” initiative. And Californians then indeed did reelect him, while passing the proposition, which outlawed the provision of any government services—including healthcare and education—to any undocumented immigrant. Government employees at any level were required to report anyone (including schoolchildren) they suspected of being in the country illegally. In language forebodingly similar to the rhetoric of both of Trump’s presidential campaigns and his two administrations, Proposition 187 began:
The People of California find and declare as follows:
That they have suffered and are suffering economic hardship caused by the presence of illegal aliens in this state. That they have suffered and are suffering personal injury and damage caused by the criminal conduct of illegal aliens in this state. That they have a right to the protection of their government from any person or persons entering this country unlawfully.
What happens in California doesn’t always stay in California. As the Washington Post reported 25 years later, “Since 1994, 65 initiatives and referendums to change state immigration laws were attempted via direct democracy mechanisms.”
Almost immediately, federal courts prevented the implementation of most parts of Proposition 187. Three decades later, however, the Supreme Court has effectively validated Proposition 187’s premise, permitting the use of racial profiling to identify possible “illegal aliens.”
The right wing wasn’t done with legislating racism in my state. In 1996, Proposition 209, also known by the (completely unironic) ironic title its proponents gave it, the “California Civil Rights Initiative,” outlawed affirmative action at any level of government in the state, including access to public colleges and universities.
Though it faced legal challenges, Proposition 209 remains in force today. There’s no doubt that earlier Supreme Court decisions, including the 1978 finding in University of California v. Bakke, had indeed laid the groundwork for it. In it, a 30-year-old white man had challenged his rejection by the medical school at the University of California, Davis. He sued and was eventually admitted. In his case, the court upheld the principle of affirmative action to address racial or other discrimination against protected classes of persons, but outlawed specific numerical quotas.
By 2023, however, an ever more right-leaning Supreme Court had ruled in Students for Fair Admissions v. Harvard that affirmative action violates the equal protections guaranteed by the 14th Amendment. As we’ve seen repeatedly, the hard-won legal remedies for racism are now being turned against both the historic and present-day targets of racism.
Then, in 1998, another ballot initiative outlawed most bilingual education in California public schools (though it was finally repealed at the ballot box in 2016).
Disparate Impact
By 2003, however, in part because of changes to the demographic makeup of the electorate, California voters had had enough of legally weaponizing white anxiety. They roundly rejected Proposition 54, known as the “Racial Privacy Initiative,” which, as the American Civil Liberties Union of Northern California put it, “would have banned most agencies from collecting data on race, ethnicity, and national origin, with disastrous consequences for health, education, public safety, and civil rights.”
But in the Heritage Foundation’s Project 2025, the right-wing strategists for a second Trump presidency made it very clear that their plans included implementing a national version of the Racial Privacy Initiative. The author of the section on labor advocated prohibiting the Equal Employment Opportunity Commission, or EEOC, from collecting employment data based on race. The mere existence of such data, he wrote, “can then be used to support a charge of discrimination under a disparate impact theory. This could lead to racial quotas to remedy alleged race discrimination.” In other words, if you can’t demonstrate racial discrimination in employment (because you’re enjoined from collecting data on the subject), then there’s no racial discrimination to remedy. Case closed, right?
I used to suggest to my philosophy students that you could view the last 2,000 years of “Western” history as a gradual widening of the circle of beings who count as full persons.
It seems that Donald Trump agrees. In April 2025, he issued an executive order entitled “Restoring Equality of Opportunity and Meritocracy.” In it, he noted that “disparate-impact liability all but requires individuals and businesses to consider race and engage in racial balancing to avoid potentially crippling legal liability.” Trump and his handlers don’t see taking systemic racism and contemporary bias into consideration as a solution to a problem. Such consideration is the problem. “It not only undermines our national values,” says the order, “but also runs contrary to equal protection under the law and, therefore, violates our Constitution.”
Whatever Trump may decree, current employment law (as implied in the 1964 Civil Rights Act, affirmed in 1970 by the Supreme Court in Griggs v. Duke Power Co., and codified in the 1991 Civil Rights Act passed under the presidency of George H.W. Bush) supports the use of disparate impact. As of now, plaintiffs can still seek to prove discrimination by demonstrating the disparate impact of a company’s “facially neutral” hiring, firing, or promotion policies. How long will it be, however, before this Supreme Court reverses decades of progress in equal employment?
We’ve already seen the “disparate impact” of Trump and his Department of Government Efficiency’s destruction of the federal workforce, which has disproportionately affected Blacks, and especially Black women. It’s a major factor explaining why 300,000 Black women have lost jobs since Trump took office.
If you have any doubt whether race (and sex) bias continues to exist at the highest levels in this administration, consider the words of a man Trump thought of as “sort of like a son,” the recently assassinated right-wing firebrand Charlie Kirk:
If I see a Black pilot, I’m going to be like, boy, I hope he’s qualified.
If I’m dealing with somebody in customer service who’s a moronic Black woman, I wonder is she there because of her excellence, or is she there because of affirmative action?
And about a list of prominent Black women, including Supreme Court Justice Ketanji Brown Jackson, Kirk said: “You do not have the brain processing power to otherwise be taken really seriously. You had to go steal a white person’s slot to go be taken somewhat seriously.”
Circling Backwards?
I used to suggest to my philosophy students that you could view the last 2,000 years of “Western” history as a gradual widening of the circle of beings who count as full persons. At first, that circle contained only high-born men. Centuries of struggle saw the inclusion of men without noble birth, and later without property. Racial concepts, themselves a human invention, long excluded men who were not deemed white. Eventually, fitfully, they, too, were admitted to the circle of personhood. Most recently, women seem to have become persons, and with that addition, people of a variety of genders and sexual orientations have also joined the circle.
But right now, six people on the Supreme Court, along with the Trump administration, are doing all they can to tighten that previously ever-widening circle of personhood and Donald Trump is on board in a big-time way. Let us hope that we can stop them from turning that circle into a noose.
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