The Right Chooses to Stop Being Coy About Its Bigotry

We all agree that racism is bad, right?  Right?  At least as of this moment, opposing racism still appears to be the public position even of some -- but certainly not all -- of the most extreme Trumpists.  Donald Trump himself has not publicly used the n-word, as far as I know (although no one will be surprised when he inevitably does), but he has been pushing racist ideas for years.  Even so, we have not yet reached that anti-"woke"-est of moments when open, vulgar bigotry will become just another way for Republicans to "own the libs."

Why not?  Because it continues to be perversely useful for Trumpists to appropriate the language of anti-racism as a means to promote White supremacy.  That jujitsu move is hardly new, but it is again a favored tool on the right.  The appointed seat-filler in the Florida Attorney General's office, for example, took it upon himself earlier this year to issued a statement on official stationery that begins with this: "Racial discrimination is wrong.  It is also unconstitutional."  Enlightenment?  Hardly.  The next sentence (ungrammatically) declares: "Yet Florida maintains several laws on its books that promote and require discrimination on its face."

So yes, we are right back to one of the Trumpists' favorite moves: Screaming about reverse racism.  White men have had it tough for too long, you see.  It is time to stop punishing them for no reason, you see.  American conservatives know exactly one thing that the Rev. Dr. Martin Luther King, Jr., said, although they often mangle it.  Something about having a dream where people are not judged by the color of their skin.  Was Dr. King a Trumpist, too?  Again, hardly.  He had a dream about a time when that would be true in the United States and around the world.  He not only predicted that he would never reach that place, but he also never suggested that we were close to reaching it.

How anti-anti-racist are these people?  Policies that might mitigate the effects of racism in the US fall along a continuum, which I will describe below.  It used to be that Republicans would complain about something that was on the relatively robust end of the mitigation scale, contrasting it with something tamer.  In the infamous Bakke case, for example, Justice Powell's rejection of direct quotas was paired with a defense of the so-called Harvard Plan, which used a "holistic" approach to admissions that took race into account as one of several complicating factors in decisions to accept or deny applications to the college.  The idea supposedly was not that "You can't fight the effects of racism" so much as "You can't do it that way."

That is now ultra outre, as Guha Krishnamurthi explained here on Dorf on Law last month.  In "Is the Rooney Rule Illegal?" he examined a letter from that very same Florida AG to the National Football League's offices, a letter that had made the news by claiming bluntly that the league is engaged in "blatant race and sex discrimination" and declaring that "[t]he Rooney Rule and its offshoots are illegal in Florida."  I have no idea what those "offshoots" might be, but we can safely assume that it is all about the AG's obsession with anything that is at all race-conscious.

I have addressed the Rooney Rule on Dorf on Law as well.  In February 2025, I wrote that "[t]he National Football League in 2003 adopted the so-called Rooney Rule, which requires teams to interview at least two minority or female candidates for coaching and senior organizational positions."  I also noted that "the Wikipedia page for the Rooney Rule describes it as both 'affirmative action' and 'hiring quotas,' even though the rule is not at all an affirmative action program and the only quota is in the number of interviewees, not actual hiring."  Clearly, Florida's AG is trafficking in legal ideas from an unimpeachable source.

Professor Krishnamurthi's thoughtful column addressed how the language of Title VII would apply to a challenge to the Rooney Rule, and I commend his analysis to every reader's attention. He notes in particular that the current Supreme Court super-majority of MAGA Republicans (my description, not Professor Krishnamurthi's) might be a willing audience for such a challenge: "But it would not take much to imagine a court—especially the Roberts Court—seeing [Connecticut v.] Teal as prohibiting any classification based on a protected trait at any stage of hiring, seeing even more competition in a job as some kind of deprivation."

My interest here, however, is not in predicting how the courts might address such a challenge.  Rather, I think it is important to come to grips with just how far we have moved down the continuum of efforts to fight the ugly effects of American racism, to the point where ambitious Republican officeholders now feel free to attack something as anodyne as the Rooney Rule.

Consider in broad strokes what that continuum looks like.  On one extreme, there is no allowance for even thinking about race, gender, and so on.  On the other extreme, we can have rigid race-based quotas, where for any selective position (jobs, school admissions, or otherwise) a strict number of places are reserved for historically disfavored groups.  And at the true extreme, it would not even be an "if available" quota.  That is, one could imagine a program that included in its admissions criteria a requirement that 10 places be filled by people who meet the definition of "minority," but if fewer than ten such people were to apply, the unfilled spots could then go to non-minority applicants.  Such a more restrictive policy might even make sense, if one thought that it was important to keep slots open to make it clear that the lack of applicants was itself evidence of racism.  In any case, the UC Davis Medical School rule in Bakke is not at the end of the spectrum, because there were in fact minority candidates who filled the special program's slots.  (Bakke, by the way, was rejected from a number of medical schools explicitly because of age discrimination, which was legal at the time, but Davis chose not to defend itself on that basis.)

Moving away from that end of the continuum, we find affirmative action.  Although there are many variations on the idea of affirmative action, I think the most useful way to think about it is by reference to so-called "plus factors."  In the form with which I am most familiar, the idea is that a program would identify certain characteristics that have not typically been thought of as part of the process but that might be useful for some broader purpose.  Powell, for example, wrote that "[a] farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer."

[As an aside, note that this is the basis for my oft-stated belief, as I reiterated in my Rooney Rule column last year, that J.D. Vance was a DEI admittee to Yale Law (and possibly also to The Ohio State University as an undergraduate).]

Slightly further along the continuum, other affirmative action programs have a hard cutoff on supposedly objective criteria (test scores, in the paradigm case) to determine who meets the basic qualifications for the position, with the plus-factors only coming into account when assessing that smaller pool.  For example, if one were to say that an 85 percent test score indicated that the applicant could perform as needed, and there were five people with scores about 85 vying for one remaining slot, race could then be a plus-factor rather than continuing to use test scores.

The longstanding objection from the right to that kind of program, of course, involves obsessing over small (and generally meaningless) numerical differences and treating every unit as a sacred measure of one's worthiness.  "Candidate X had a score of 90, and Candidate Y had a score of 87, but the less qualified candidate stole the slot from the merit-based candidate because of race!"  Again, if the entity involved thinks that anyone who scores 85 or better can do the job, then that should be the end of the story about merit.  We can all agree that, say, Stanford Law School is better in some meaningful sense than the University of American Samoa's law school, but at some point we have to concede that no algorithm based on "objective" criteria will tell us with certainty whether Stanford is better than NYU or Columbia.

Anyway, the fact is that the White-grievance-fueled American right has always found ways to chip away at the legitimacy of every possible variation on an affirmative action program that explicitly took race into account in making decisions.  The brilliance of the Rooney Rule thus could be seen in its explicit rejection of anything resembling a policy to use race or gender even as a plus-factor.  The subtle but powerful motivation behind the Rooney Rule was simple, as I described it last year:

The idea was that team owners had a "usual suspects" mindset that resulted in the same White guys being recycled through the ranks, with the hope being that simply having them talk to minority candidates might turn up an unexpected surprise or ten.  An unintended negative impact of that rule was that minority candidates have been put through pro forma interviews that wasted their time, but it did lead to a small but meaningful increase in the number of Black coaches in the league.

So the idea there is to say to decision makers: "Hey, there's a bunch of people who might be very good, but you've been overlooking them for some reason.  To be part of this league, you need to at least talk to them, and we hope (but won't require) that you will do so in good faith."

That final sentence is key, because there was nothing in the Rooney Rule that would stop a team from deciding in advance to hire Junior Lombardi (to use Professor Krishnamurthi's cleverly named imaginary candidate).  One simply never knows, however, when or how often such a mindset could be pierced by an awesome interview, where the owners issue a collective gasp and says, "Damn!  How did we not know about this Junior Tomlin guy?!  Sign him up now!"

So what is the right's objection to the Rooney Rule, not as a Title VII matter or a constitutional matter, but in the context of White grievance and the belief that "White guys have everything going against them"?  The Rule does not say that race is a plus-factor in hiring.  It does not say that there is a threshold of "good enough."  It certainly does not say that no Whites need apply.  It says only that people who are making decisions based on their own definition of "best candidate" have to sit through at least two interviews with non-usual suspects.  And maybe listen.

Although I have described these policies are existing along a continuum, this is a categorical difference.  We are no longer being told that more-qualified White guys are losing out to less-qualified (or supposedly unqualified) diversity hires.  We are being told that White guys cannot tolerate even to be put in a position where the applicant pool includes people who might turn out to be more qualified, full stop.

As I also noted in last year's column, the Trumpist right no longer even bothers to say that there might be people who are non-White men who are in fact qualified.  As a presumptive matter, they attack anyone as per se unqualified who is a woman, a racial or ethnic minority, LGBTQ+, or any other group that they hate.  I wrote: "Any person from a disfavored group is now deemed to be unqualified -- not even as a rebuttable presumption, but simply as a given fact of nature."

Years ago, I had a conversation with a guy who gamely (and sincerely) argued that discrimination against women and minorities was genuinely a good thing, because by putting up barriers that people in those groups had to surmount, we were guaranteeing that truly the best of the best would make it through the gauntlet.  Of course, that argument conveniently ignored the implication that we should be comfortable with White dudes never having to pull a muscle trying to prove themselves.  But I honestly never thought we would reach the point where the bigotry would be even more extreme, with the new presumption being that nothing could ever prove that anyone other than a White man is the most qualified candidate.

The attack on the Rooney Rule is therefore not only an open admission of bigotry but a concession that the bigots never truly believed that they were losing because were not being given a fair process -- unless "fair" is simply redefined to mean "resulting in White male supremacy."  Why bother to compete when it is easier to make words mean just what we choose them to mean -- neither more nor less?

- Neil H. Buchanan