December 30, 2019

NEW YEAR’S RESOLUTIONS FOR THE TRUMP ADMINISTRATION?: Even if 2020 doesn’t turn out to be the administration’s last year, officials need to act on the assumption that it might be.

A couple of years back I recommended that the Trump Administration take a close look liability for “disparate impact” under Titles VI and VII of the Civil Rights Act of 1964 (as well as few other statutes). So far there’s been no action.   And time is running out.  But these are serious issues that need to be addressed.

Here is why I believe disparate impact liability under Title VII is unconstitutional. For Title VI, no one claims the statute itself imposes liability for disparate impact; the claim is that the regulations made pursuant to Title VI do. Here is why I believe that this is a misinterpretation of the regulations and that if it’s not a misinterpretation the regulations are beyond the scope of the rulemaking power granted under Title VI and unconstitutional.

There are a variety of things—large and small—the Trump Administration could do about this.  I hope they will have the time and the inclination to act.

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