January 22, 2024 - 6:35pm

A rift has been forming on the American Right over civil rights and what the movement’s response should be to affirmative action and DEI. 

The conflict came into public view over Martin Luther King Jr. Day weekend in mid-January, when comments from Right-wing commentator Charlie Kirk criticising both King and the Civil Rights Act of 1964 came to light. Kirk had argued in a November speech that “we made a huge mistake when we passed the Civil Rights Act in the 1960s” because it led to the current moment of DEI. 

His statements, which triggered widespread condemnation in the press, are part of an ideological battle that’s long been bubbling under the surface on the American Right: should civil rights laws be used to advance Right-wing goals, or be scrapped altogether? 

Christopher Rufo has called for conservatives to weaponise civil rights law against the liberal project of “equity” – the pursuit of equal outcomes rather than equal opportunities. The Right, he argued, must apply 1960s civil rights laws in order to outlaw all racial discrimination. To his camp, civil rights laws are fundamentally good things which have been manipulated by the Left for sinister and discriminatory ends — yet it’s not too late to restore the true spirit of civil rights. 

“The ideological capture of the Civil Rights Act is neither fixed nor inevitable. Rather than argue for its abolition, Americans concerned about the excesses of the DEI bureaucracy should appeal to higher principles and demand that our civil rights law conform to the standard of colour-blind equality,” he wrote. “The answer to left-wing racialism is not right-wing racialism — it is the equal treatment of individuals under law.”

The activist’s call to action involves legislative bans on racial preference and affirmative action, abolishing DEI bureaucracy and overturning the 1970 Supreme Court precedent in Griggs v. Duke Power Company, which held that racially disparate outcomes are evidence of illegal discrimination, forming the legal framework for today’s pursuit of equal outcomes over equal opportunities.

Rufo’s views are popular not only on the Right but across the board; Americans broadly support equality of opportunity over equality of outcomes. Vivek Ramaswamy, Bill Ackman and activist James Lindsay have taken similar stances on the issue. 

But there are competing factions on the Right seeking to dismantle affirmative action and DEI through other means. Rather than using civil rights law to take down discriminatory “equity” programmes, libertarians would prefer the repeal of the Civil Rights Act of 1964, which they believe violates the constitutional right to freedom of association by banning discrimination in the private sector. Lately, this idea has been repopularised by the political scientist Richard Hanania, who argues that our current predicament is just the culture catching up with the legal framework of civil rights.

Along similar lines, there is some concern among social conservatives that a colour-blind approach to race and civil rights law is a band-aid solution. Unequal outcomes are inevitable, and this inequality leads to accusations of discrimination and subsequent calls for remedy in the form of affirmative action, meaning that restoring colour-blind civil rights laws would eventually bring us right back to where we are now: affirmative action and DEI. 

Far on the other side of the conservative movement, a handful of Never-Trump type figures have been broadly supportive of the racial equity model. New York Times columnist David French memorably argued in 2021 that white Americans owe an intergenerational debt to black Americans because of slavery and discrimination, to much criticism from his fellow conservatives. 

Donald Trump praised the Supreme Court decision which struck down racial discrimination in college admissions in 2023 and championed the colour-blind approach during his time in office, barring the federal government and military from engaging in hiring practices that stereotype or scapegoat on the basis of race. One target of this mandate was a federally funded lab claiming “rationality over emotionality” was a characteristic of “white male[s]” and asking individuals to “acknowledge” their “privilege”. 

As the de facto leader of the conservative movement in the US, Trump will set the tone over the coming year through his campaign. If elected, his appointees and hiring decisions will give a strong indication as to which route the Right will take on civil rights. 


is UnHerd’s US correspondent.