This essay was originally published by Tom Klingenstein on April 9th, 2026.

---

Editor’s Note: We are living through a cold civil war centered on the character of the regime itself: its moral premises and its claims to legitimacy. This essay is the second installment in a triptych series examining why affirmative action has survived decades of state opposition, judicial repudiation, and popular resistance.

The first installment, Our Unslayable Ghoul, argued that affirmative action persists because it is sustained by a civil-rights constitutional morality rather than any single doctrine or policy. It concluded by asking whether Donald Trump—a political actor unusually willing to override institutional norms and conventions—could destroy a regime he still, in crucial respects, inhabits.

---

The American regime is now governed by a civil-rights constitutional morality that operates along two axes. The first is prohibitory: Discrimination is the supreme constitutional wrong, making its eradication a central purpose of federal power. The second is affirmative: demographic diversity is the primary index of institutional legitimacy, signaling impropriety in institutions that fail to produce it. 

What makes these axes a constitutional morality rather than merely a policy is that they function as constraints on institutional legitimacy regardless of what positive law commands on a given subject. In practice, institutions with persistent demographic disparities are presumptively suspect and expected to justify or correct those disparities, even absent a legal violation or discriminatory intent.

As I’ll argue here, President Donald Trump has pushed against both axes — redirecting anti-discrimination enforcement against new targets and creating friction with diversity expectations. Nevertheless, he has done nothing to challenge the axes themselves, and that is why affirmative action will surely survive Trump’s presidency largely intact.

I. Trump’s Unprecedented Offensive

In his second term, President Trump has launched the most aggressive assault on affirmative action by any president in the civil-rights era.

On January 21, 2025 — his second day in office — President Trump issued an executive order repealing Executive Order 11246, the 1965 LBJ directive that had governed federal contractor affirmative action for sixty years. Importantly, Trump did not merely rescind the requirement to maintain affirmative action programs; he also prohibited federal contractors from engaging in such practices and directed the relevant federal agencies to treat these practices as potential civil-rights violations. The administration simultaneously instructed agencies to investigate universities, corporations, and accreditation bodies for violations of federal civil-rights law, now redefined under the order to encompass many of the diversity programs that prior administrations had encouraged or even required.

No Republican president in the modern era attempted a comparable effort. Richard Nixon, as a candidate, engaged in symbolic opposition to aspects of the civil-rights agenda, but once in office he made no effort to dismantle or weaken the civil-rights regime. Instead, he expanded it, most consequentially through the Philadelphia Plan, which imposed numerical hiring goals on federal contractors and institutionalized a form of affirmative-action enforcement more aggressive than anything his predecessors had attempted.

Ronald Reagan did challenge various affirmative-action programs and seriously considered rescinding Executive Order 11246, but he ultimately declined to touch the order, blocked by resistance from business allies, congressional Republicans, and his own Labor Secretary, Bill Brock. His successors moved further still toward accommodating affirmative-action programs: George H. W. Bush did not take a strong position on affirmative action, and George W. Bush was even slightly favorable, taking the position that although quotas are impermissible, diversity itself is a compelling governmental interest and “one of America’s greatest strengths.”

Before Trump, then, GOP affirmative-action politics followed a clear progression: from Nixon’s symbolic opposition, to Reagan’s ambivalent deliberation, to Bush I’s indifference, to Bush II’s tepid support. Trump broke that pattern by directly attacking affirmative action as opposed to merely tolerating it.

Owing to Trump’s more confrontational posture on affirmative action, many observers now believe that, after generations of recalcitrant persistence, affirmative action is finally about to die—if not as a result of the Supreme Court’s decision in Students for Fair Admissions v. Harvard, then through Trump’s unprecedented coordination of a combined judicial, executive, and enforcement offensive against it.

These observers are mistaken. Understanding why requires distinguishing between what Trump changed and what he did not.

II. What Changed: Trump Challenged a Fifty-Year Settlement

In the first generation of the post-war conservative movement — roughly the 1950s through the 1970s —conservative thinkers and pundits generally critiqued the civil-rights revolution as a derogation from the principles of limited government and freedom of association. Beginning in the 1970s, however, conservatives increasingly accommodated themselves to the civil-rights revolution and confined their opposition to the perceived excesses of the civil-rights regime: court-mandated busing, affirmative action, and the most aggressive forms of identity politics.

A major feature of this shift was the rise of neoconservatism within conservative discourse. Neoconservatives—center-left intellectuals increasingly disenchanted with the Democratic Party’s anti-colonial foreign policy and its approach to race and urban politics in the 1960s and 1970s—had been ardent supporters of the civil-rights movement, with some having been actively involved in it. When they migrated to the Republican Party during the Reagan administration, they brought their civil-rights advocacy with them.

By the 1990s, this posture had become a staple of conservative politics, producing what I have called the “civil-rights good, affirmative-action bad” settlement. The settlement did not challenge the civil-rights morality; it operated entirely within it. Diversity remained the master good and discrimination the master wrong. Conservatives working within the settlement still wanted robust civil-rights enforcement and robust black representation in elite institutions; they simply argued that affirmative action was the wrong way of achieving it, because overt racial preferences discriminated on the basis of race and often directed benefits not to those harmed by discrimination but to already-advantaged minorities.

The result was not merely a policy position but a boundary-drawing exercise. The “civil-rights good, affirmative-action bad” settlement licensed conservatives to argue that a particular method of achieving diversity was unlawful while simultaneously constraining opposition to diversity as a value. In this sense, the settlement determined in advance which disagreements counted as legitimate conservative politics and which constituted moral transgression.

Trump’s 2016 campaign indirectly challenged this feature of conservative discourse. Whether by calculation or temperament, he refused to perform the ritual through which conservatives had come to demonstrate civil-rights fidelity. Trump did not confine contestation to the safe perimeter. His politically incorrect rhetoric embraced and even courted the moral disapproval that prior Republican leaders had spent decades trying to avoid.

Trump’s challenge to the settlement opened a long-foreclosed debate about civil rights on the Right. Without Trump’s 2016 campaign, figures like Tucker Carlson would not have been emboldened to raise questions that had long been treated as professionally disqualifying, such as why elite institutions across the political spectrum treat “diversity is our greatest strength” as a settled article of belief rather than a proposition subject to scrutiny and refutation. Indeed, without Trump, much — and perhaps even all — of today’s heterodox work on civil rights, from Christopher Caldwell’s The Age of Entitlement to my own civil-rights scholarship, would not have taken the form it has. Our ideas did not generate the rupture; Trump’s rupture in American politics provoked them.

But Trump’s 2016 rupture also activated the civil-rights regime. Although there were traces in Obama’s second term of what we have come to call “wokeness,” its most aggressive manifestations appeared as a direct response to Trump’s perceived legitimacy violations. This was a defensive activation of the civil-rights regime, making explicit what had long remained implicit: that diversity functions as proof of institutional legitimacy and that disparate outcomes between groups signal the moral evil of discrimination.

As this defensive activation strengthened in 2020, following the killing of George Floyd and the unrest that ensued, an organized anti-woke response emerged. New organizations such as America First Legal were founded, and activists like Christopher Rufo rose to prominence with the express purpose of challenging affirmative action and related forms of identity politics. A New Right arose, fusing anti-woke politics — encompassing DEI programs, critical race theory, and transgender policy — with Republican governance, making anti-wokeism a defining feature of the party’s new political identity.

By Trump’s second term, the moral constraint that had once rendered critique of the civil-rights regime professionally disqualifying had weakened substantially. Positions that would have been career-ending in 2015 became viable conservative stances by 2025. Trump’s 2016 campaign created political space that had not existed in generations.

But creating space is not the same as transforming it.

III. What Did Not Change: The Operating System

Trump’s 2016 rupture briefly opened something more radical than a policy debate. For a moment, it seemed possible to think outside the civil-rights morality altogether: to treat the regime not as a neutral baseline in need of better management but as a rival constitutional order in need of a fundamental challenge.

That possibility of moving toward a genuine alternative was real. The heterodox work the rupture provoked pointed toward an alternative that would defend the right of institutions to produce whatever demographic composition their academic missions yield — without federal scrutiny, without apology, and without the presumption that deviation from national demographic patterns signals moral failure. This alternative called for the development of a rival moral grammar grounded in associational freedom, communitarian subsidiarity, and institutional autonomy—traditions deeply rooted in American constitutional thought but progressively subordinated by the civil-rights morality.

That project, however, was quickly muted by the anti-woke coalition that coalesced around Trump’s second term. This coalition — including center-left figures like Bari Weiss and Bill Ackman, and activists like Christopher Rufo — wasn’t interested in moving beyond the civil-rights regime. Instead, it sought to redirect the regime, turning its enforcement machinery against new targets.

Indeed, Ackman led the public pressure campaign against Harvard over its handling of anti-Zionist protests, helping to force the Harvard president’s resignation. Rufo called on conservatives to build “a new civil rights agenda” and argued that “the Right is winning” because the Trump administration was wielding civil-rights law as a weapon against new targets. Weiss’s Free Press provided the frame, becoming the primary platform through which campus anti-Zionist activity was translated into a civil-rights crisis demanding federal intervention.

What the 2016 rupture produced in thought was extraordinary. It was the first serious challenge to the civil-rights regime in decades. But what it produced in action was ordinary civil-rights politics: Reagan-era critiques of Executive Order 11246, complaints about insufficient Asian representation at elite academic institutions, and an expanded use of Title VI to control campus political speech in the name of battling antisemitism, culminating in the DOJ’s lawsuit against Harvard and the administration’s effort to treat campus political expression as actionable discrimination under federal civil-rights law. All that changed was who wielded the weapons. The operating system remained.

Trump exposed the civil-rights regime’s rituals, provoked its defensive activation, and dismantled the background conditions that had long insulated affirmative action from fundamental challenge. He created the political world in which the SFFA opinion was written, decades-old critiques of Executive Order 11246 were finally realized, and anti-woke politics became a governing identity. This is not nothing. Indeed, it represents the most serious challenge to the civil-rights regime in more than fifty years.

But it’s not enough. Demographic governance does not survive because affirmative-action critics have failed to find the right workaround. It survives because conservatives and liberals alike inhabit the same operating system. This is the paradox at the heart of modern conservatism: it speaks the language of the regime to contest the outcomes the regime produces. In doing so, it entrenches the very framework that makes those outcomes necessary.

The next administration will inherit the enforcement apparatus intact and ready for redeployment, running the same operating system and now equipped with a new tool: civil-rights law repurposed to regulate political speech and campus activity. Critics of liberal immigration policy or DEI may soon find themselves on the receiving end of that same machinery. Admissions offices will return to prior practices with little difficulty.

The ghoul will not need to be resurrected. It will simply resume walking.

Until a political movement is willing to build an alternative constitutional morality—one that denies diversity’s legitimating function, defends institutional differentiation as a competing constitutional good, and grounds those commitments in the traditions of associational freedom and communitarian subsidiarity that the civil-rights morality has progressively subordinated—every victory over affirmative action will prove temporary. Affirmative action will continue to serve as a sanctioned target, absorbing conservative dissent while preserving the regime that makes it necessary. What building such an alternative would require is the subject of the third and final installment.