Why America Has Seen an Explosion in Public Recrimination
At its best, Wokeness is an awareness of how race and gender bias can produce societal inequalities. At its worst, it’s a racket in which upper-middle-class college graduates wield victimhood status in a bid for financial gain or career advancement.
When the Civil Rights Act was passed in 1964, victims of workplace discrimination had recourse to only a few remedies, such as back pay, restoration of a promotion or benefits, or job reinstatement. A few years later, newly minted federal Affirmative Action programs held that members of minority groups that had a history of facing discrimination could now benefit from preferential hiring schemes. In the first instance, an employee had to prove discrimination had occurred, in the second, a minority job applicant was assumed to need protection from discrimination in any hiring process.
While remedies for workplace discrimination were not controversial because they were focused on making the victim whole, preferential hiring–as well as college admissions—was problematic by virtue of the fact that it meant that a non-minority’s application could be thrown out to make room for the minority applicant. Not surprisingly, the issue reached the Supreme Court, and in 1978 the justices reached a convoluted split decision that upheld Affirmative Action, made racial quotas illegal, said race could nonetheless be considered in college admissions, and failed to determine how applicants would have to prove past discrimination in order to receive protected or preferential status.
A little more than a decade later, Congress upped the ante by passing the Civil Rights Act of 1991, which for the first time explicitly allowed employees to seek compensatory and punitive damages in both racial and gender discrimination cases. In essence, this updating of the Civil Rights Act transformed the anti-discrimination statute from one whose remedy was equitable relief—restoring the complainant to his or her employment situation to what it had been before the offending act occurred—to something more like a tort—a wrongful or negligent act—which allows for trials in which juries could order parties they found liable to cough up damages.
In short, the CRA of 1991 fundamentally changed the way discrimination was to be remedied. Before 1991, anti-discrimination statutes were based on a traditional labor model that sought conciliation in employer-employee relations. After 1991, employment disputes would more and more be resolved through litigation—or the threat of it— involving compensation for the victim and punishment for the offender. Whereas in the 1960s civil rights advocates had wanted anti-discrimination enforcement to revolve around a New-Deal style government authority, over time they came to embrace the benefits of private enforcement in which every complainant was a potential plaintiff.
Now that large sums of money were potentially involved, most observers anticipated an increase in discrimination litigation. And, of course, that came to pass. Indeed, the new law incentivized the filing of complaints, and changed how Americans approached their interactions with one another in the workplace and beyond. In the same way that the explosion in personal injury lawsuits turned every fall in a shopping center into a potential lawsuit, so too did making discrimination into a tort encourage Americans to see every slight and professional setback as potential sources of compensation.
Just as importantly, the new law made discrimination cases, which had once been considered too much work for too little pay off, more attractive to attorneys. To sweeten the deal, the law now authorized plaintiffs to recover attorney’s fees if they won their cases. One could say that if Martin Luther King, Jr., was among the inspirations for the passage of the Civil Rights Act of 1964, then the flamboyant, scandal-plagued San Francisco attorney Melvin Belli, the so-called “King of Torts,” was the spiritual father of the Civil Rights Act of 1991. More than anyone in America, Belli was responsible for the successful post-war push by trial lawyers to increase damages awards in personal injury cases. Thus, the Civil Rights Act of 1991 married the sacrifices of the 1960s struggle for social justice with the ethos of an era best symbolized by a scene in the 1987 movie Wall Street in which Michael Douglas–playing the fictional corporate raider Gordon Gekko–famously proclaimed that “Greed is good.”
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The term “woke,” which became a watch word among African American activists as early as the first half of the 20th-Century, was catapulted into the mainstream in 2014 in the wake of the shooting of Michael Brown in Ferguson, Missouri. While initially associated with the Black Lives Matter movement, it was quickly adopted by white Progressives committed to fighting inequality. The term then quickly came to encompass a constellation of ideas, slogans, and programs that sought to liberate a growing number of marginalized groups from a structurally biased system.
There was nothing particularly revolutionary about these activists’ stated concerns. What was distinctive was both the tone of their rhetoric and their favored solutions for addressing disparities. Whereas the civil rights movement of the early 1960s inspired some of the nation’s greatest legislative successes through a spirit of forgiveness and reconciliation, the rhetoric of Wokeness was full of resentment, vengeance, and demands for immediate reparation.
While the definition of discrimination had been expanding steadily since 1964, suddenly Americans were being told that there were a whole lot more ways to offend and oppress their fellow Americans than they had ever imagined. Even as most Americans thought that the lives of minorities and women had improved significantly since the 1960s, the bar for what constitutes–and the standard of evidence to prove–discrimination was being lowered. University administrators and company human resources experts now considered American society so fundamentally prejudiced and hostile that they introduced new ways of protecting people–such as trigger warnings and safe spaces–from even the slightest faux pax, which were now inelegantly called microaggressions.
Meantime, those who failed to comply with the growing list of social infractions risked being “called out,” “cancelled,” fired, sued, and otherwise painted with a scarlet letter. To a sober observer, the sheer number and frequency of these auto-da fés seemed more than a little exaggerated. There’s no denying that discrimination occurs in America, but why all of a sudden was there an explosion of accusations and public recriminations, particularly in universities and among the educated upper middle classes, people who are among the most privileged humans on the planet? And why did so many people who were not directly involved in the incidents join in the angry choruses while others remained silent in the face of what were objectively disturbing spectacles?
Greg Lukianoff and Jonathan Haidt, the authors of The Coddling of the American Mind, have called the driving impulse of this era of discontent “vindictive protectiveness,” the practice of publicly shame and punishing those accused of having said or done anything to harm a member of a protected group. Because even casual defenders of the accused are not immune to these mob attacks, those uncomfortable with the idea of public stoning tend to keep their objections to themselves. This behavior, Lukianoff and Haidt argue, created “a culture in which everyone must think twice before speaking up, lest they face charges of insensitivity, aggression, or worse.”
Vindictive protectiveness, Lukianoff and Haidt argue, arose from a style of fearful and overprotective parenting that educated middle-class and above parents began to practice in the 1980s and ’90s in an effort to give their children a competitive edge in life. Wanting only the best, these parents sought to cultivate their children’s talents while erasing all potential sources of risk and adversity in their environments. Overscheduled, over supervised, and left with precious little time to play and explore on their own, these children eventually arrived on university campuses believing that the world was dangerous, bad people should be removed from their presence, and that the institutions around them should protect them in the way their parents had.
The universities, of course, obliged. As higher education has become big business, students have been transformed into customers, and we all know that the customer is always right. Furthermore, Lukianoff and Haidt suggest, the rise of vindicative protectiveness may also “be related to recent changes in the interpretation of federal antidiscrimination statutes.” Not only do university administrators seek to avoid lawsuits from students, they also want to avert any investigations by the Department of Justice into their civil rights compliance. Ironically, that’s why they developed “bias incident reporting” systems that allow students to report anonymously on anyone they feel has caused them or anyone else to experience any type of bias. At Cornell University, for example, a bias incident is something done or said “that one could reasonably and prudently conclude is motivated, in whole or in part, by the alleged offender’s bias against an actual or perceived aspect of diversity, including, but not limited to, age, ancestry or ethnicity, color, creed, disability, gender, gender identity or expression, height, immigration or citizenship status, marital status, national origin, race, religion, religious practice, sexual orientation, socioeconomic status, or weight.”
In short, a combination of the desire to protect students as well as to remain in compliance with civil rights statutes and regulations turned campuses into places where students are encouraged to report on professors, staff, subcontractors, and, of course, one another. In response to professor pushback at the anonymous reporting system at Stanford, a university spokesperson insisted that the “process aims to promote a climate of respect.” Still, there is a growing realization that such reporting systems can be both easily abused and limit free speech. Nonetheless, as students graduate from college, they take the expectations these systems foster with them into the labor force.
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The commentariat is telling us that Trump’s victory spells the end of Woke. But too many election post-mortems treat Wokeness as a purely political phenomenon. Yes, it employs left-wing ideologies that treat identity and victimization as sources of resistance and power. But Wokeness would never have become so pernicious outside the university had there not been the temptation (and fear) of financial gain (and loss). In addition to money, cancellation also holds out the promise of professional advancement. Campaigning to remove one’s colleague or boss–and even helping others cancel theirs–is also a way for young people to remove their supervisors, clear the field of competition and move up the ranks.
Ask any cynical political hack how to decode the power and drive of any politicized trend and they’re likely to tell you to follow the money. Wokeness is no different. After you find out who all has profited from this phenomenon, you’ll come face to face with the absurd fact that one of the most diverse countries in the world has chosen to encourage private litigation and the threat of financial damages to curb discrimination and promote a more just and cooperative society. What could possibly go wrong?
Gregory Rodriguez is the author of Whiteness: An American Tragedy and Other Essays and Mongrels, Bastards, Orphans, and Vagabonds: Mexican Immigration and the Future of Race in America. He is working on a book on the rise and fall of rights-based liberalism.