Lyndon B. Johnson issued Executive Order 11246 on Sept. 24, 1965, directing federal agencies and contractors to not only avoid discrimination but to also “take affirmative action to ensure ... equal employment opportunity based on race.” Despite the promises of various Republican politicians, affirmative action remains firmly entrenched in government, higher education, and even in many private sector employers who are outside the scope of Order 11246.
The legal basis for affirmative action is tenuous at best. An executive order can be undone with the stroke of the presidential pen and discrimination on the basis of race is prohibited by the Constitution and nu-merous statutes. Yet it is now simply taken for granted that nonwhites will receive preferential treatment when they are con-sidered for employment or schooling.
Although Title VII of the Civil Rights Act of 1964 should prohibit discrimination against whites, courts have often imposed a higher burden of proof on whites who allege discrimination. The Sixth Circuit Court of Appeals, for example, regularly affirms dismissals of reverse discrimination claims on the grounds that there were no “background circumstances [to] support the suspicion that the defendant is that unusual employer who discrimi-nates against the majority.”
This is the seldom-mentioned back-drop to the Biden administration’s executive order requiring the federal government to comprehensively...