The Trump administration has announced a new offensive in its war on “disparate impact.”
Under disparate-impact doctrine, discrimination doesn’t have to be intentional to be illegal. Race-neutral policies that happen to affect some demographic groups more than others—say, a landlord who refuses to rent to tenants with criminal records or a law enforcement agency that uses a written test to screen applicants—are treated as presumptively illegal if challenged. In court, defendants must prove these policies’ necessity—and explain why proposed alternatives are not suitable—in lengthy, expensive, and risky proceedings.
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The civil rights laws passed in the 1960s said nothing about disparate impact, but the doctrine soon crept into various aspects of the law through executive agencies, federal courts, and even Congress (in employment law). Seeing the unfairness and legal problems inherent in disparate-impact doctrine, the president directed the federal government to minimize enforcement earlier this year.
As part of that effort, the Department of Justice is now removing disparate impact from its regulations under Title VI of the Civil Rights Act of 1964, which apply to federally funded programs. Agencies across the federal government are likely to conform their own Title VI rules, which are subject to approval by the attorney general, to the new policy.
The executive branch has special influence in this area. In employment-discrimination law, private individuals can sue based on “disparate impact,” and Congress changed the text of the law to recognize the doctrine in the Civil Rights Act in 1991. But under Title VI, there is no private right of action for disparate-impact claims, and the underlying statute still doesn’t mention the doctrine. There’s little question that the executive branch has the authority to roll back regulations it made up in the first place.
It’s worth noting some key limits, though. Most importantly, the rule change merely reinforces the administration’s policy of not pursuing disparate-impact enforcement, and a future administration can change it back. Indeed, the administration made this change on unusually short notice, thanks to the Administrative Procedures Act’s exception from “notice and comment” for policy changes involving federal grants and contracts.
Also, intentional discrimination remains illegal within programs receiving federal funds, including when it’s achieved through policies with a disparate impact. In other words, you can’t choose a policy because it will disproportionately exclude certain racial groups—and rightly so.
Thus, I don’t believe that this will weaken, for example, efforts to fight DEI in education, though the Washington Post raises the possibility. The administration is seeking more detailed admissions numbers from colleges, as the Post notes—but such numbers can show more than just unintentional disparate impact. They can also provide evidence that schools are treating similar students of different races differently—for example, showing that two racial groups get admitted at different rates despite having the same academic qualifications—which would imply intentional discrimination and justify deeper investigation.
As I’ve written before, truly rooting out disparate impact will involve more than just executive action. Ideally, Congress would rewrite the laws, though the courts also have room to narrow the doctrine or even find it unconstitutional. But meantime, the administration’s latest moves strike a strong blow to the policy.
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