Abstract

Kimberly West-Faulcon, White Predominance Is the Point, 6 North Carolina Civil Rights Law Review 77 (Spring 2026) (201 footnotes).  (Full Document)

A new breed of “blitz-style” legal attacks on racial diversity, equity, and inclusion (DEI) propagate the false narrative that “wokeness” in corporate America is victimizing Whites. Blitz-style attacks on racial DEI policies ignore and seek to undo the existing federal civil rights doctrinal rule that considering race for the purpose of including non-Whites is nondiscriminatory and legal. Despite their flagrant advocacy against racial inclusion, it is insufficiently recognized that anti-DEI attacks are part of a project to convert existing pro-race inclusion civil rights statutory doctrine into a tool for preserving white predominance of the nation’s most valued economic and workforce opportunities. This Article corrects this failing by surfacing the statutory endgame of contemporary blitz-style legal attacks on racial diversity, equity, and inclusion--DEI--in corporate America: an automatic statutory illegality for inclusion-motivated race-conscious policies. It explains that the anti-DEI doctrinal objective is not a universally colorblind set of legal rules but, instead, a yet-to-be-realized and unprecedentedly race-exclusionary perversion of the meaning of federal civil rights statutes. The ultimate objective of this Article is to explicate that the project to destroy DEI is an interim step toward the installation of a never-before-existing legal regime that would, if realized, make it illegal to diminish, to any extent, white predominance in America’s most coveted business funding and employment opportunities.

Part I analyzes the purpose and current doctrinal meaning of a federal civil rights provision originally enacted by the U.S. Congress as § 1 of the Civil Rights Act of 18667--42 U.S.C. § 1981’s contract clause-- stating that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts ... as is enjoyed by white citizens.” Starting with an analysis of the similarity between tactics used to promote white supremacist ideologies and the tactics used by opponents of DEI to create moral opposition to racial inclusivity policies, it examines the textual and historical context of § 1981’s requirement that non-Whites be afforded the same contracting rights as Whites. This Part also sets forth the purpose and doctrinal meaning of the federal law that protects Americans from employment actions unlawfully based on race--Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991.11

Part II examines a contemporary lawsuit that weaponizes § 1981 against a business investment firm for funding Black female entrepreneurs. Specifically, it explains how the American Alliance for Equal Rights v. Fearless Fund case, filed in 2023, exemplifies what this Article terms a blitz-style white predominance attack on DEI. Following on prior analysis of Title VII doctrine, this Part presents a second example of a blitz-style white predominance legal attack. It discusses a 2023 complaint letter that calls on the U.S. Equal Employment Opportunity Commission (EEOC)--the federal agency statutorily tasked with enforcing Title VII--to investigate a privately owned sports entertainment company’s adoption of policies to increase inclusion of women of all races and non-White men in the job categories of race car driver, pit crew member, and intern. This is an examination of a letter sent by an anti-DEI organization named America First Legal (AFL) to the EEOC that calls on the agency to investigate the National Association for Stock Car Auto Racing, LLC (NASCAR) for allegedly engaging in “illegal discrimination against white, male Americans” in violation of Title VII. In addition to touching on how AFL’s tactics mirror tactics used to mainstream white supremacist ideologies, Part II contrasts the erroneous assertions about Title VII’s meaning presented in AFL’s letter to the EEOC with the Supreme Court’s currently binding Title VII precedent.

The Article’s conclusion synthesizes its identification of the change in law--the federal statutory doctrinal consequences of the tactical deployment and distortion of the Civil Rights Acts of 1866, 1964, and 1991--for which the project to destroy racial DEI in corporate America is merely an interim step. It calls for recognition that the project of destroying DEI programs it examines is a project to preserve white predominance.

[. . .]

A key tactical feature of blitz-style white predominance attacks on race DEI is deployment of a pejorative version of colorblindness terminology--using the term “wokeness”--to erroneously paint the inclusion-motivated dismantling of job category racial hierarchies as racism against Whites. In addition to its naming of blitz-style white predominance attacks and its explanation that blitz-style legal attacks on racial DEI policies are flagrantly at odds with the existing 42 U.S.C. § 1981 and Title VII precedent and doctrinal rules, this Article makes the novel contribution of observing that the legal attacks on the racial inclusivity policies of entities like the Fearless Fund and NASCAR echo tactics employed in white supremacist deployment of genetics research.

Considering race to increase inclusion of non-Whites in employment and business-funding contexts where White persons enjoy high levels of white racial predominance is not racism against Whites. It is a dismantling of America’s longstanding racialized hierarchies and a counterbalance to contemporary vestiges of America’s centuries-old racial caste system in which the White racial group is assigned to the dominant racial caste. Nevertheless, contemporary anti-DEI forces seek to preserve existing overwhelmingly high levels of white predominance in selective university admissions, corporate jobs, venture capital funding, racecar team and video game development internships, student editors of law journals, news anchors, television writers, air traffic controllers, the U.S. Vice Presidency, city mayors and fire chiefs, and other elected government positions. If the statutory race inclusion illegality regime anti-DEI forces are promoting comes to pass, their project to pervert federal civil rights laws like §1981 and Title VII to protect white predominance will succeed.

Footnotes

Professor of Law and James P. Bradley Chair in Constitutional Law, Loyola Law School, Los Angeles; B.A., Duke University; J.D., Yale Law School.