Is culture downstream from law?

Andrew Breitbart’s claim that politics is downstream from culture always made sense to me. More importantly, it quickly gained widespread acceptance among conservatives.

But in this insightful article, Richard Hanania, writing on Substack, argues, in effect, that culture is downstream from law. He states:

People have generally misunderstood wokeness as a purely cultural phenomenon. It does have a cultural component, of course, but it is important to also understand wokeness as something that has been law in the United States for the last half century.

The triumph of this ideology over the last 10 years in public discourse is simply culture catching up to law.

Hanania traces what he deems the core tenets of “wokeism” to developments in the law. The first tenet is “a belief that any disparities in outcomes favoring whites over non-whites or men over women are caused by discrimination.” I call this “equity theory.” According to Hanania, this view gained its foothold in 1971 with the Supreme Court’s holding in Griggs v. Duke Power Co. that facially neutral employment policies with a disparate impact on blacks are unlawful unless they are job related.

I see two problems with Hanania’s argument that equity theory is simply a case of culture catching up to law. First, Griggs itself was the product of a cultural shift.

By 1971, there was, thank goodness, a broad, bipartisan consensus that artificial barriers to the advancement of blacks should be removed. Griggs involved classic artificial barriers to black advancement. The company required a high school diploma and success on two written tests for menial jobs like coal handler at a power plant.

The Supreme Court thought the record evidence failed to show that these requirements were imposed with the intent to discriminate against blacks. Thus, in order to find discrimination the Court had to conclude that discriminatory intent need not be proven when a neutral rule with a disparate racial impact isn’t job related.

Again, the ruling was in line with the prevailing culture of 1971. This, after all, was a period in which a Republican administration was imposing quota hiring in certain trades to break down old barriers to equal employment opportunity.

The second, and main, problem with Hanania’s argument is that Griggs did not adopt “equity” theory. The Court did not hold, as the woke left insists , that all racial disparities in outcomes are caused by discrimination. Under Griggs, employers can show that disparate outcomes are not the result of discrimination by proving that the policy producing the outcome is “related to the job.”

Unfortunately, the Court also said that the “touchstone” in these cases is “business necessity.” But most courts properly concluded the such necessity exits when the requirements in dispute are reasonable, given the job at issue.

Equity theory, by contrast, doesn’t care whether the policies that produce racial disparities are reasonable or, I gather, even necessary. Griggs did not give the green light to this radical view.

The second tenet of wokeism that Hanania traces to the law is the view that “the speech of those who would argue against [equity theory] needs to be restricted in the interest of overcoming. . .disparities, and the safety and emotional well-being of the victimized group in question.” According to Hanania, “government interpretation of the Civil Rights Act. . .invented the concept of the “hostile work environment,” which, in turn, gave rise to restrictions on speech.

Although this development in the law did not occur in a cultural vacuum, Hanania is on firmer ground here. He cites the work of Eugene Volokh, who pointed out years ago that “harassment law potentially burdens any workplace speech that's offensive to at least one person in the workplace based on [protected characteristics]. . .even when the speech is political and even when it’s not severe or pervasive enough to itself be actionable.”

Hanania might also have cited the work of Gail Heriot, who finds the “roots of wokeness” in the 1991 expansion by Congress of Title VII's remedial provisions to allow for the recovery of compensatory and punitive damages, including damages for emotional distress. The expansion led both to restrictions on free speech and to the third element of wokeness Hanania identifies — the HR bureaucracies that promote “equity” and manage on-the-job speech and social relations.

Professor Heriot writes:

Two of the most lasting and consequential effects [of this legislative change] may have been to encourage the growth of identity politics and to weaken support for American norms of free expression—at least as those norms apply to statements that relate to race, sex, or national origin.

We all know that culture affects law. But, one way or another, law affects culture, too.

The answer to the question I posed in the title of this article can be found, I think, in Heriot’s last sentence. Culture isn’t downstream from law, nor are law and politics really downstream from culture.

The “downstream” model is useful, at least as Breitbart formulated it. However, it’s too simplistic. Perhaps “feedback loop” provides a better analogy to the process that gave rise to wokeism.

Unfortunate cultural, political, and legal outputs all became inputs which produced new, worse outputs in a continuous process. Accordingly, the war against wokeism needs to waged vigorously on all of these fronts.