Books: The Origins of Woke
Civil Rights Law, Corporate America, and the Triumph of Identity Politics
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True story: I was pushing my shopping cart down the aisle at Giant Eagle when there was an announcement over the loudspeaker about how the store celebrates the LGBTQ+ community. It must play pretty often, since for a month I heard it once or twice every time I stopped by to pick up eggs or milk.
Another month, it was announcements celebrating the Latinx community. If you don’t know, Latinx is the new term for Hispanic people. Most Hispanic people haven’t heard of it, either. My impression was that it is mainly used by activists and academics, but now I hear it in between piped-in music at the grocery store.
I recall a time not so long ago when grocery chains didn’t do this sort of thing. But I’m slightly nervous to even notice and question the change. I don’t like hassle, and that time I coauthored something noticing the proliferation of trigger warnings and microaggression complaints, it resulted in a denunciation or two.
All of these things are what many people nowadays consider examples of wokeness.
What is Wokeness?
Like most morally loaded terms that become popular, wokeness has been stretched all over the place to fit this grievance or that. Much as there are many on the left for whom racist means “whatever I dislike,” there are many on the right who use woke the same way.
But however much they get abused, the terms do refer to real phenomena. In the case of wokeness, lumpers and splitters vary in what they want to include. Most would probably count strong concern with race, sexuality, and gender in all walks of life. Other candidates include rapidly evolving and expansive definitions of what counts as offensive speech, seeing everything in terms of collective oppression, and conspicuously signaling one’s loyalty to certain minority groups.
In his book Origins of Woke, political scientist / Nietzschean gadfly Richard Hanania defines this often-vague term with three pillars: The beliefs that 1) disparities are always the result of discrimination, at least if they favor non-protected groups; 2) that to address this speech needs to be restricted; and 3) that combatting discrimination and regulating speech require a full-time bureaucracy. If I understand, the idea is that most other things associated with wokeness follow from these.
The main thesis of the book is that these pillars of wokeness are results of the law: That each of these is something mandated by government policy. And Hanania thinks the observation is important because critics of wokeness, particularly on the right, tend to rage ineffectually against it without ever realizing that much of what they complain about is legally mandated.
The Legal Basis of Wokeness
Of course, the relationship between law and culture runs both ways, with culture also shaping law. But that relationship seems to get more attention than the reverse. Hanania’s argument is that legal doctrines and decisions have a powerful influence on culture.
In the case of wokeness, he traces much of it to the 1964 Civil Rights Act — well, sort of. It’s the subsequent expansion and transformation through judicial interpretations, presidential executive actions, and the decisions of administrative agencies that are the real story.
He presents “four great innovations of civil rights law” that breed wokeness: federally mandated affirmative action, the disparate impact doctrine, harassment law, and regulation of education by Title IX.
Modern affirmative action has its origins in a 1965 executive order (EO) from President Johnson, later expanded by an order from President Obama. The Johnson order required government contractors adopt goals and establish timetables whenever certain minorities were underrepresented in the workforce.
The effect of the EO was the force any business that works with the government to classify their workers by government demographic categories, tabulate their numbers within various organizational units, and comparing these to the distribution of those categories in the general population. Given the massive size of modern government, this order effected a big swath of private businesses. It made them care a lot about the race and sex of their employees and about having the right demographic mix. As Hanania puts it:
“Long before people noticed that identity-related issues had consumed American universities, something resembling wokeness had already been forced on big business.”
The disparate impact standard is the result of a 1971 Supreme Court Case, Griggs versus Duke Power Company. It makes any employment test or requirement potentially illegal if protected classes underperform relative to nonprotected ones. The standard makes every test and requirement — physical or mental, skill or subject knowledge — a legal danger, since the wrong groups might over- or underperform. The same is true on codes of conduct — thus the Obama administration warned schools about “punishment gaps” between black and white students.
Harassment law is “built on the idea that Title VII is violated when women or minorities are made to feel uncomfortable at work.” A series of court decisions made it so that employers were liable for creating “a hostile work environment” even if there was no tangible harm to the victim, and even if the offensive words or images were not directed at the victim, and even if they were the product of fellow employees and not of the employer.
All this puts employers in the position of being potentially legally liable for discomfort among their protected-class employees. It strongly incentivizes them to micromanage workplace interactions and police employee speech, always with an eye on what the most sensitive person might find offensive.
Google’s firing of engineer James Damore is one result of this trajectory.
Damore was fired for circulating a memo suggesting that perhaps the tech industry was not discriminating against women, but hired fewer female coders because relatively fewer women were into coding. Google was making the right business decision given that any speech that might make women uncomfortable was a bigger legal threat than firing someone from an unprotected class. But without that context, it seems like madness that a company would fire an employee for defending the company — Google’s position is that sexism is bad, and we will fire employees who claim we’re not sexist.
Finally, Title IX of the 1972 Education Amendments was meant to forbid sex discrimination in education. But over time it evolved into a social engineering project that micromanages university sports in an attempt to produce more female jocks. It also regulates college student’s sex lives. Using expansive definitions of harassment and tribunals with low standards of proof, Title IX justice makes even talking and joking about sex potentially hazardous.
The Woke Legal Regime
One key feature of this legal regime is the vagueness of standards. A business owner or university president will have trouble knowing whether or not he is violating the law — since violations might include conversations between employees that happen out of his hearing, or expecting potential employees to meet what seems like an obvious requirement of the job.
Another key feature is that it’s stacked against the defendant. In civil rights litigation a successful plaintiff can recoup his or her attorney fees — a successful defendant cannot. Furthermore, civil rights plaintiffs and their attorneys can demand punitive damages far in excess of any material loss to the plaintiff. So even if the defendant wins, he’s out a lot of money, and if he loses, he might be ruined.
The incentives here are to do whatever is necessary to avoid getting sued, in a legal environment where you might get sued over just about anything, and in which there are attorneys who have financial incentives to drum up lawsuits against you.
In the face of all this, businesses and schools protect themselves by following a “best practices” doctrine — a kind of keeping-up-with-the-Joneses in terms of workplace trainings and procedures that a court will judge “reasonable care” to prevent harassment or discrimination. The incentives are clear: Never be the last one to adopt the latest speech codes or training procedures or hiring preferences. A kind of arms race or purity spiral is baked into the legal doctrine.
All this results in Hanania’s third pillar of wokeness: the need for a full-time bureaucracy to interpret the vague laws, police speech, manage interpersonal relations, and keep abreast of best practices. The legal changes he discusses were followed by a massive increase in the Human Resources industry and the growth of university diversity and Title IX bureaucracy.
How Law Shapes Culture
The argument that law shapes society is commonsense in abstract, and people might readily point to famous examples like striking down racial segregation or decriminalizing abortion and birth control. I think what makes Hanania’s discussion interesting is that he points to distal and wide-ranging effects from decisions that are relatively obscure to your average Joe.
Sports
For instance, he seems to love the example of Title IX’s impact on college sports — partly, I imagine, because it seems so absurd.
Decisions in 1993 and 1996 mandated that the sex ratio in the varsity athlete population in universities resemble the university population as a whole. Other court and bureaucrat decisions have even specified what sports count for this purpose. Generally, to count for Title IX, female sports need to the sort of competitive and consuming athletic contests that men tend to be far more interested in doing. Thus cheerleading isn’t a sport, but basketball is.
Universities have responded with tactics like cutting male sports, padding their numbers of female athletes with women who never attend practices or games, and counting male practice players on women’s teams as female athletes. They also needed to create more female sports teams. Many have created women’s rowing teams because it is a sport that easily allows one to inflate the numbers of members, with women joining up to be counted for a few practice sessions and then rotating off.
And of course, given the demand for female athletes, there must be scholarships and admissions preferences to attract them. Actress Lori Loughlin even got busted for trying to pad her daughter’s college application with a fake rowing team membership. Sporting events, scholarships, student composition, and even scams are all shaped by some official’s opinion about whether cheerleading is a sport.
Demographic Categories
Another example Hanania spends a lot of time on is government demographic categories and how they shape the thinking and identity of everyday people.
While group disparities might seem obviously important, official categories lead us to notice some more than others. You can easily find statistics on imprisonment gaps between Hispanics and non-Hispanic whites, because that’s what the bureaucracy requires everyone to track. Differences that aren’t tracked as government policy get far less attention. Quick: What’s the imprisonment gap between Swedish Americans and Italian Americans and Arab Americans?
Even some of the categories themselves are recent government creations. Hanania notes that Hispanic was not a census category in the 1950s, and that as recently as the 1960s Mexican American activists objected to being classified as non-white. In 1970, Mexican Americans, Puerto Ricans, and Cuban Americans considered themselves distinctly different groups. Many didn’t know what “Hispanic” even meant.
But when Mexican American activists started campaigning for representation in the Equal Employment Opportunity Commission, Puerto Rican activists also got involved. There was thus pressure to come up with a term that would include them as well. The result was a Cabinet Committee on Opportunities for Spanish-Speaking people.
The main problem then was seen as a language barrier among recent immigrants. But the committee created a big load of statistics on Spanish-speaking Americans that became fuel for future activism. A Chicano activist group rebranded itself as a Hispanic activist organization to conform to the new government category and get government grants for its activity. Activist lobbying got Hispanic added as a census category in 1980.
The term remains something you see on all kinds of questionnaire for various institutions. It’s a basis for job preferences, college scholarships, and political activism. Perhaps it is not surprising, then, that many now identify with the term — though a majority of Hispanic Americans still think of themselves primarily in terms of the specific country their family came from, or simply as Americans. Even if only a minority now embrace the Hispanic identity, the concept — a result of dickering interest groups decades ago — is firmly entrenched.
Here again, I think Hanania likes such examples both because they support his argument that law effects culture, and also because of the absurdities they generate. A pure-blooded descendent of Spanish conquistadors can qualify as an oppressed racial minority, while a survivor of the Armenian genocide is a privileged white. Rich Cubans need special government support, but poor Cajuns do not.
And Hanania has special relish for discussing an even stranger government category: Asian American and Pacific Islander (AAPI).
At least Cubans and Mexicans share a language and probably a religious heritage. AAPI lumps together various different languages, religions, and even completely different types of society, from K-pop idols to Melanesian tribesmen.
Hanania notes that the kitchen-sink nature of the AAPI category allows for an odd sleight of hand in constructing media narratives, as when crimes against Samoans are reported as evidence that the Chinese origin of the coronavirus led to an increase in hate crimes against “Asians.” It also leads to things like Hmong immigrants being disadvantaged by affirmative action because South Korean immigrants do too well.
But as much as the lumpy AAPI category is pushing up the sociological hill, it too has real world consequences, and maybe in a generation or two will produce new identity groups.
As an officially recognized category it already shapes activism and research. True story: My wife is a sociologist from Korea. She considers herself a sociologist of culture, but as she searched for advice on how to get ahead in academia, several people — including administrators — told her to rebrand herself as an AAPI scholar. She was perplexed by the notion that she had any kind of expertise in Vietnamese, Samoans, or Hawaiians. She doesn’t even focus on Korean Americans as such.
But such are the incentives of academia — where government categories go, scholarly literatures, college majors, and student organizations will follow.
Gender and Sexuality
Hanania goes on to argue that the law has similarly shaped ideas about sex, sexuality, and gender.
The social engineering efforts of programs like Title IX lean toward promoting a model of womanhood where women should be interested in more typically masculine things — hence we need more female jocks and no, cheerleading doesn’t count.
The inclusion of sexuality and gender as protected categories means corporations looking to be lawsuit-proof find their best strategy is to loudly celebrate their endorsement of LGBTQ+ identities — hence the gay pride announcements on the loudspeaker at my local grocery store in West Virginia.
And harassment law makes flirtation a minefield at school and work, perhaps breeding a new kind of prudishness. True story: My uncle, who retired as a meter reader at a power company, spent the last years of his working life complaining of the neverending training sessions about sexual harassment. At one of them they were informed they could get in trouble for harassment even if the person they were flirting with liked it, as it might make a third party feel harassed.
My uncle spoke up to ask what kind of sense that made: “If I rub on Lois over there, and she likes being rubbed on, what’s the problem?” To which Lois chimed in, “I get mad when he don’t rub on me.”
The trainer running the session was not amused. One imagines this kind of banter will die out with the Boomers.
Bureaucratic Bloat and Moral Dependence
Much of what people now call wokeness overlaps with what Bradley Campbell and I call victimhood culture — a moral culture defined by high sensitivity to slight, strong partisanship toward those seen as oppressed, a tendency to handle conflicts through complaint to third parties, and a tendency to emphasize the victimization of oneself and one’s allies.
Our explanation for the rise of victimhood culture is an increase in several features of social structure, including especially weak social ties, diversity, equality, and ready access to authority.
Regarding the last of these, we discuss how authority figures can breed what sociologist M.P. Baumgartner calls “moral dependency” among their subordinates. To the extent authorities dominate the handling of grievances, people become increasingly likely to turn to them, and may lose their willingness or ability to deal with things in different ways.
Historically, totalitarian regimes have bred such dependence by encouraging people to inform on one another, and by taking all such accusations very seriously. Modern university bureaucracies lack such brutal authority but encourage similar reliance. They continually train their subject population in the range of deviance they should notice and report, and can be incredibly credulous about accusations.
One consequence is that grievances, whatever their origin, tend to get transformed into categories the officials take seriously — disloyalty to the state in the USSR, racism, sexism, or harassment in modern America. And other ways of handling conflict get replaced with complaint to authority — whether filing confidential reports or staging public demonstrations.
Tanner Greer at Scholar’s Stage makes a similar argument on how youth raised by all-encompassing bureaucracy learn to deal with problems:
Consider the 30 year old staffer in Congress, or her counterpart protesting out on the streets…the politics of her university experience boils down to causing a ruckus until the administration decided to bequest to the ruckus-causers the object of their desires. All she has learned from these experiences is that solving problems means petitioning the powers that be….”
Campbell and I point to the rapid growth of university administrations, including especially parts created for moralistic ends — to define and respond to wrongdoing.
Where Hanania’s argument dovetails with ours is that he too thinks this bureaucracy shapes modern culture. Only whereas we took it as an independent variable that explains patterns of conflict, he tries to explain the rise of moralistic bureaucracy itself.
And rise it has. The bureaucratic bloat of universities is most extreme. Hanania writes:
“Yale currently has about as many administrators and managers as it does students. Many new employees have job titles that did not exist only a few decades before. As of 2020, Ohio State University employed 132 administrators with ‘diversity’ or ‘equity’ in their job titles to the cost of $13.4 million.”
But it’s not limited to academia. Bureaucratic bloat afflicts even private corporations. On the growth of the human resources industry, he writes:
“In 1968, only 1 in 558 American workers were employed in human resources. By 2021, that number had risen to 1 in 102, including 1 in 184 men and 1 in 68 women.”
“One today needs bureaucracy to manage all aspects of interpersonal relations, and bureaucracy itself to be managed by more bureaucracy.”
Totalitarianism without Dictators
The bureaucracy, he argues, is almost totalitarian:
“No matter how well intentioned, once the government opened the door to concepts such as ‘hostile work environment’ and ‘disparate impact,’ there was no natural limit to the reach and power of full-time social engineers.”
I’ve seen other people talk about the possibility of distributed totalitarianism in modern America, and it’s an interesting idea — that one can have an intrusive system of ever-present authority, without the extremely centralized dictatorships of the fascist, communist, and Nazi states. Is such a thing possible?
A chunk of Hanania’s argument comes from work by sociologists Frank Dobbin and James Sutton, who he cites in the book. I quote from their article in the American Journal of Sociology:
“Organizations created new offices not because the law dictated that they do so but because the law did not tell them what to do. Management journals defined specialized offices, with expert staffs, as the best protection against costly lawsuits. Our analyses show because legal standards are vague and open-ended, but because they’re not even directly enforced — enforcement is largely farmed out to private litigants, and from that to schools and corporations micromanaging their own personnel so as to avoid litigation.”
Outsourcing social control to private litigation means that everyone is your policeman. In the realm of contract law, where things are more clearly defined and damage awards are limited to what was at stake in the deal, this isn’t such a problem. Combined with a system where pretty much anything can be actionable, and compensation can be far in excess of damage done, it’s a different beast. Organizations in turn empower various HR bureaucrats to police their members in the hopes of fending off litigation.
Dobbins and Sutton argue that the dispersal of rule enforcement even shapes how people come to understand and justify the rules:
Justifications for these offices drifted away from compliance and toward pure efficiency. By 1980, managers were advocating each kind of office in the rational language offered by the new human resources management paradigm. We argue that this occurred in part because constitutional protections against the rise of federal tyranny signal that government domination of private enterprise is inefficient and illicit. It occurred in part because the law gave employers a particularly active role in devising compliance mechanisms, and hence, middle managers came to see those mechanisms as their own. And it occurred in part because ambiguous federal mandates are a thin reed on which to build elaborate new personnel programs. [Emphasis added.]
Their article came with the playful title “The Strength of a Weak State” (a reference to a famous article on social networks called “The Strength of Weak Ties”). The ironic observation is that if the American state had laid down clear statues to be directly enforced by police, the effects would be far less intrusive and all-encompassing.
It fits with historian Jan Gross’s observation that what made Soviet totalitarianism totalitarian wasn’t just the centralization of authority. It was that the state recruited private individuals to be its agents of social control — encouraging and incentivizing them to inform on one another, thus leading to people being sent to gulags for all matter of petty personal grievances.
So perhaps one can have totalitarianism in less centralized regimes, so long as the power of authorities is readily accessible for a sufficiently wide range of issues. The sanctions will be less brutal — as Emile Durkheim observed long ago, absolute authorities punish more harshly. But the extensive reach of authority will be felt all the same. If Dobbins and Sutton are right, people will even come to see the rules they enforce as their own.
Texas abortion law also outsources enforcement to private litigants, though I don’t know that it incentivizes litigation in the same way as civil rights law. But I do wonder if using private litigants to route around limitations on state police power is some sort of hack in the Anglo-American system that will become more common with time. On the other hand, the common-law system is really old: If it were so vulnerable to turning totalitarian, wouldn’t it have happened by now?
A Lesson in Legal Realism
If you tell people that you think civil rights law is causing problems in US society, their first reaction is probably to think you are against civil rights. What, you support a return to racial segregation and disenfranchisement of black people?
But a point Hanania keeps coming back to is how different the law in practice is from the Act that was actually passed to ensure civil rights.
The book is a crash course in legal realism. If you don’t know, legal realism is a school of thought that arose among American legal scholars in the early twentieth century. It held that the content of the rules — the law in the books — did a very poor job predicting the outcome of legal cases — the law in action.
(FYI, I’ve a post legal realist Fred Rodell’s Woe Unto You, Lawyers!)
Regarding the Civil Rights Act of 1964, Hanania writes:
“It is likely that few, if any, members of Congress at the time would have believed that the bill signed by President Johnson would ultimately force police departments to lower their physical fitness standards to accommodate women, much less make employers subscribe to theories about the malleability of gender that had yet to be invented.”
The idea of the Act was to put the final nail in the coffin of Jim Crow by forcing an end to discrimination against blacks. Hanania claims that “no one in American society thought that Congress was in the process of creating an open-ended and indefinite commitment to achieving equality between various groups.” Yet over the ensuing decades judicial and administrative interpretations of the law did exactly this.
While the law specifically forbade discrimination based on color or sex and was passed with assurances that it forbade any kind of reverse discrimination in favor of minorities, this is exactly what the Affirmative Action regime mandates.
The same goes for the disparate impact standard. Two senators even specified that the Civil Rights Act would not invalidate a job qualification just because, owing to background and education, some groups met it more than others. But the disparate impact standard does just that: Any standard that one group is on average better at meeting is prima facie evidence of discrimination. Within a decade a Supreme Court decision and Equal Employment Opportunity Commission practice brought about exactly what the senators had said the law wasn’t intended to do.
Hanania writes:
“What has become civil rights law bears little resemblance to the act that Congress passed in 1964….Time and again, members of Congress foresaw the possibility that Title VII could be used to push for a disparate impact standard or equality of outcomes, and it is difficult to imagine how they could have made themselves clearer that such interpretations were forbidden.”
The influence of Title IX on women’s sports is yet another example. Surely the text of the Act had nothing to say about whether cheerleading was a sport or colleges needed to have women’s basketball — but that is exactly how the law was interpreted:
“The process through which we got from the text of Title IX to a federal government obsessed with sports and sex in college is hardly believable in a country that prides itself on the rule of law.”
Legal realists like to point out that if judges and other legal officials have sufficient latitude in interpreting the laws drafted by elected lawmakers, then it calls into question the extent to which those elected representatives actually are lawmakers. They’re not making the law — the judges and bureaucrats are.
Which maybe raises some problems for the idea that “civil rights law” explains our current culture. For even if he’s got the causal story right, it’s less a matter of wokeness comes from law and more a matter of it comes from judges.
I think there’s a meaningful difference between a badly written law producing unintended consequences and officials straining the law to get an outcome they already want. One is a problem analogous to writing the program, running it, and finding it doesn’t work right. You fix it by rewriting the program. If the problem is the officials — well, they’ll bend whatever instructions you give them, so the solution is different officials. And if the problem is some set of social conditions that would make your replacements officials apt to act the same way….
Law as Explanation
Explanation can be pursued indefinitely, with the independent variables in one theory becoming the dependent variable in another theory. But any given effort needs to stop somewhere. Campbell and I were content to use the proliferation of bureaucratic authority as an explanatory variable — our goal was to explain patterns of moral conflict, not patterns of organization.
But I’ll admit that since we point to pruning back moralistic bureaucracy as a feasible way to reduce victimhood culture, it was awkward to field questions about how to do it.
In Hanania’s book we have a theory of the origin of this bureaucracy in particular executive orders and judicial precedents. He argues that undoing these with subsequent judicial decisions and EO’s would go a long way toward rolling back wokeness. What judges and EOs have made, judges and EOs can unmake.
Since presenting a strategy to do this is his main goal, his own explanation stops with these legal origins. But of course, one can go further and ask why judges, presidents, and regulators made these decisions in the first place. And it’s not necessarily a trivial question, since presumably any attempt to push things in the opposite direction will run against the forces that pushed it in this direction to begin with.
Hanania’s book is an expansion of his Substack piece “Wokeness Woke Institutions Is Just Civil Rights Law.” My biggest quibble with that was the word “just.”
For there must have been some other factors that led to the law being interpreted and implemented in the way that it was. If indeed the law in practice is as contrary to the written law as he claims, we have to ask if the written law was even necessary to produce these outcomes. Couldn’t the powers-that-be just wildly reinterpret some other law instead?
On X, Christian author Neil Shenvi raises a similar question: How come this civil rights act gave us wokeness, and not the several civil rights acts passed between 1866 and 1964?
Heck, if you want another example of law on the books bearing little relation to law in practice, there were civil rights acts in place all through the history of Jim Crow segregation. Those laws didn’t work as intended, either.
The other big puzzle is that wokeness and/or victimhood culture are similarly advanced in other countries that don’t share the same laws. I’ve written elsewhere about how these countries have comparable legislation, but that just pushes the question back — why the convergence? Are there some other shared factors that help explain why law and culture evolved as they have?
If we’re generalizing specifically from Hanania’s book, I wonder if the English legal tradition of relying heavily on judicial law (common law or law of precedent) would lead Anglophone countries be more woke than others.
Regarding the government creation of victim categories, I too have written on the curious contradictions that come from classifying the privileged and downtrodden based on a crude set of demographic categories. I said it’s plausible that to some degree the list of “official” victims is historically contingent, a result of backroom dealing between interest groups. But I think there’s also more general social factors at work, from actual history of oppression to the ease with which a characteristic is the basis for forming an interest group. See also my thoughts on whether anti-bullying measures in South Korea will result in growth of victimhood culture there.
It’s unfair to ask any explanation to be complete. And I don’t think explanation is the main goal of this book — it’s to focus attention on paths for political action. But to judge it as sociological theory — my default after all these years of doing that sort of thing — I do think it would have been stronger with more comparative material.
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Substacks cited above: