The Trump administration signaled its hostility to the “disparate impact” approach to civil rights enforcement in its recent school safety report. The Justice Department is studying a similar, governmentwide shift. A civil rights advocate calls disparate impact a “bedrock principle.”
The Trump administration is considering a far-reaching rollback of civil rights law that would dilute federal rules against discrimination in many aspects of American life, the Washington Post reports. An internal Justice Department memo directs civil rights officials to examine how decades-old “disparate impact” regulations might be changed or removed in their areas of expertise, and what the impact might be. Under disparate impact, actions can amount to discrimination if they have an uneven effect even if that was not the intent, and rolling back this approach has been a longtime goal of conservative legal thinkers. Past Republican administrations have done little to erode the concept’s application, partly out of concerns that the Supreme Court might disagree, or that such changes would be unpopular and viewed as racist.
Civil rights advocates said diminishing this tool could have sweeping consequences. “Disparate impact is a bedrock principle,” said Kristen Clarke of the Lawyers’ Committee for Civil Rights Under Law. “Through the courts, we’ve been able to marshal data and use the disparate-impact doctrine as a robust tool for ferreting out discrimination.” in 2014, the Obama administration advised school systems they may be guilty of racial discrimination if students of color are punished at higher rates. The Trump administration signaled its hostility to this approach in a report by the Federal Commission on School Safety, which recommended rescinding the school discipline guidance. The report said the validity of disparate impact analysis “cannot be squared with the Supreme Court’s holdings.” The administration revoked the guidance a few days later. The school safety report argued that earlier administrations had adopted the disparate impact concept without regard for what the underlying statute said. It said that interpretation was of “questionable validity” and “dubious, at best.”