Trump undercuts enforcement of the Civil Rights Act of 1964

President Johnson shakes hands with civil rights leader Martin Luther King at the signing of the Civil Rights Act on July 2, 1964. (Getty)

For decades, the political right has purported to broadly support the goals of the civil rights movement of the 1950s and 60s. In recent years, Republicans sought to pare back perceived excesses benefiting minority groups and women, which they attributed not to the historic civil rights movement but modern "wokeism."

Late Tuesday, however, President Donald Trump revealed he is pursuing a far more radical agenda.

Trump issued an executive order repealing Executive Order 11246, which was put in place by Lyndon Johnson in 1965. For 60 years, Executive Order 11246 prohibited government contractors with contracts of more than $10,000 from discriminating in hiring or employment based on race, color, religion, sex, or national origin. Trump's executive order described the repeal as part of "ending radical and wasteful government DEI programs and preferencing."

To understand more about Executive Order 11246 and the historical significance of its repeal, Popular Information spoke with Thomas J. Sugrue, a history professor at NYU and the author of several books on the civil rights movement.

This interview has been edited for length and clarity.

Popular Information: What is the history of Executive Order 11246, and how did it come into being?

Thomas Sugrue: Executive Order 11246 was signed by Lyndon Johnson as part of the process of enforcing the Civil Rights Act of 1964, particularly Title VII of the Civil Rights Act, which forbade discrimination on the grounds of race, color, national origin, religion, etc. So, it was a critical part of the rollout of the Civil Rights Act of 1964.

PI: Was it controversial at the time?

TS: It didn't generate a lot of controversy in the immediate aftermath of it coming out. However, it contained two words that became very controversial, and those were "affirmative action." Affirmative action had been used in a previous executive order by John F. Kennedy, but it was still undefined. And so, over the rest of the Johnson administration and into the Nixon administration, there was a lot of discussion and debate about what exactly affirmative action meant. And so that became a critical part of the legacy. It was resolved by Nixon. The Nixon administration allowed for the use of goals and timetables to measure the inclusion of minorities and other protected groups within government contractors, and that process has been more or less in place since. Essentially, 11246, with some modest amendments, since 1965 has been in place as the primary mechanism for enforcing nondiscrimination in government contracts and also by government vendors and subcontractors.

Executive Order 11246 opened up the government contracting sector, which is a huge segment of the economy, to significant numbers of non-whites and women. So, it's had a very substantial economic impact. And public contracting and public employment are among the most important sectors for non-white Americans, particularly Blacks, and have been since 11246 was put in place.

PI: What was going on with government contracting before Executive Order 11246?

TS: There were very few government contracts that went to firms with significant numbers of non-whites and women. They're still underrepresented in certain sectors. But the change was pretty significant. Essentially, it gave teeth to the government's prescription against discrimination in government contracts. In other words, the Civil Rights Act of 1964 was not self-enforcing. They had to come up with mechanisms to ascertain whether or not contractors were in compliance. And that was what 11246 did.

PI: Could you talk about how Executive Order 11246 worked?

TS: Among many other things, it required employers to declare that they don't discriminate against members of protected groups, women, religious minorities, etc. And then secondly, it required the gathering of data and information on whether or not there had been representation of those groups in contracts. That data-gathering mechanism is really important because it is the only way we know if nondiscrimination is working. Some critics of 11246 and affirmative action argued that it would constitute quotas. But that's a misnomer. There were never specific numerical quotas required by 11246.

Under 11246, government contractors have to demonstrate that they have a plan for reaching out to protected groups, including minorities and women. And then they have to report on the composition of their workforces, or their subcontractors.

PI: What do you think will be the impact of Executive Order 11246's repeal?

TS: The impact is going to be hindering the opportunities of minority and non-white people to get government contracts because there's been scrutiny. That matters whether or not they're in compliance. I mean, look, affirmative action in its various forms has been under siege for a long time. I'm not going to make a case that 11246 is a panacea, but it matters because of the importance of government, because of the size of the government contracting sector, and the importance of government contracting for providing opportunities for folks.

A lot of private firms are government contractors, that includes most of the major corporations in the country who are doing everything from providing office supplies to road construction materials to technology to the federal government. And so they're now released from any commitment to create or maintain a diverse workforce.

PI: So, since data will no longer be collected, we will not be able to fully ascertain the impact of the repeal?

TS: As I understand it, yes. The President's executive order doesn't go into all sorts of specifics about what this might look like, but I think it's safe to say, given that demonstration of compliance in principle and gathering of data are important parts of what the Executive Order entailed, that those will go by the wayside. I presume that the offices that are involved in the enforcement of the Civil Rights Act and the Department of Labor are going to be some of the targets for elimination.

PI: How does Trump's repeal of this Executive Order fit into the broader civil rights movement?

TS: The Civil Rights Act of 1964 and Executive Order 11246 had bipartisan support. The Executive Order remained in place through Nixon, through Reagan, through both Bush administrations, through the first Trump administration. So there was a significant base of bipartisan support, and I think one of the most telling aspects of the decision by this current administration to expunge 11246 is the collapse of Republican support for all sorts of civil rights initiatives, including nondiscrimination in employment.

We're looking at 60 years, and 11246 survived the Reagan administration's fierce challenge to replace anti-discrimination laws and affirmative action. It lived on. It didn't get abolished because there was still substantial Democratic and Republican support for it. So that's the sea change that has happened over the last decade or so. I'm not saying a majority of Republicans supported it. I mean, the support for these programs has declined significantly since the enactment of the Civil Rights Act in 1964, but there was still enough bipartisan support to make it untouchable in prior Democratic and Republican administrations.

---

This week, we started a new publication, Musk Watch. NPR covered our launch HERE. It features accountability journalism focused on one of the most powerful humans in history. It is free to sign up, so I hope you’ll give it a try and let us know what you think.

---