President Trump’s Most Controversial Decision Yet — A Move Even Reagan Avoided: Dismantling Affirmative Action

By now, it should come as no shock that President Trump has made sweeping changes to established notions on a range of topics, from A (asylum) to W (wilderness access) — though there haven’t been any significant executive orders on anything that starts with Z yet.

However, in his decision to retract President Lyndon Johnson’s 1965 Executive Order 11246, which initiated decades of de facto racial quotas masquerading as “affirmative action,” Trump has exceeded the most ambitious expectations set by any prior administration.

To provide some context: when the Senate debated Title VII of the Civil Rights Act of 1964, which bans racial discrimination in hiring, critics warned that it would result in racial quotas.

During the debate, Hubert Humphrey, who later became Vice President, refuted this assertion, claiming, “If the senator can find in Title VII any language which mandates that an employer must hire based on percentage or quota related to color, race, religion, or national origin, I will start eating the pages one after another because it is not in there.”

Humphrey essentially misled the public. The civil-rights advocacy groups were already preparing for Johnson’s executive order that would require federal contractors to implement “affirmative action,” effectively introducing quotas through a different terminology.

Given that a significant portion of American businesses engage in contracts with the federal government, this directive had a sweeping impact across the private sector.

While the original EO 11246 did not explicitly mention “goals and timetables,” it did necessitate that all companies submit “compliance reports” to the federal government, which were essentially self-incriminating documents by their very nature.

The only means to ensure compliance and avoid the risks tied to federal or private civil-rights lawsuits was through preferential hiring practices.

By the late 1970s, half of the Fortune 500 companies were grappling with civil-rights lawsuits alleging racial discrimination.

This situation created one of the most dishonest legal regimes ever established, particularly since Title VII, at the insistence of its critics, included explicit language forbidding racial preference in hiring.

Such contradictions are why decades of legal loopholes and euphemisms persisted, effectively reversing the straightforward language of the Civil Rights Act and challenging Martin Luther King Jr.’s vision of a color-blind society.

Justice Antonin Scalia noted that while the Civil Rights Act had been drafted with “a clarity which, had it not proven so unavailing, one might well recommend as a model of statutory draftsmanship,” it had been warped into “a powerful engine of racism and sexism” due to these manipulations.

Yet, Hubert Humphrey never had to face the consequences of his unsustainable commitment to a fiber-rich diet.

Despite widespread public disapproval of affirmative-action quotas (evidenced by repeated popular votes to abolish the practice at the state level, including two in California), no previous Republican administration had the fortitude to confront it directly.

During the Reagan administration, discussions surfaced regarding the revocation of EO 11246 in 1985, spurred on by Attorney General Ed Meese.

The Reagan cabinet faced a significant division on the matter, with moderate Republicans such as Transportation Secretary Elizabeth Dole and Labor Secretary Bill Brock lobbying against the repeal and rallying major corporate CEOs to pressure Reagan to maintain the order.

Corporate leaders felt so threatened by the civil-rights movement that a survey conducted among Fortune 500 companies in the mid-1980s revealed that 88% would uphold their affirmative-action hiring policies even if there were no legal obligation to do so.

Confronted with a unified opposition from his cabinet, party members, and business interests, Reagan ultimately withdrew the proposed repeal of 11246.

Thus, President Trump has ventured where even the Reagan administration hesitated to go.

This change is more than a mere legal adjustment; it signifies the revival of the truly understood principle of equal rights.

Steven F. Hayward is the Edward Gaylord Distinguished Visiting Professor at Pepperdine University’s School of Public Policy.