The Department of Justice struck a mighty blow for the primal constitutional principle of equality under the law when it implemented an executive order by Donald Trump, signed last April, that ordered the attorney general to rescind regulations that encouraged racial preferences.
Even the Washington Post (!) agreed with the action by Attorney General Pam Bondi to end the routine practice of using "disparate impact" metrics to "prove" discrimination. The disparate impact process grew from a 1971 Supreme Court case, Griggs v. Duke Power Co. At that time, there had to be evidence of "intentional" discrimination.
The Equal Employment Opportunity Commission (EEOC) decided to test the limits of Title VI of the Civil Rights Act by arguing to the Supreme Court that the purpose of Title VI was to “accomplish economic results, not merely to influence motives or feelings.” In other words, all a plaintiff had to prove was that blacks or other minorities were "underrepresented" in a company's workforce to win a discrimination case.
Thus was born "disparate impact," and like any good bureaucratic rule, over the next 50 years, it grew into a monster. The rule tilted the playing field further and further against companies whose intentions to be fair were tossed out the window in favor of counting the color of noses to determine whether the company was discriminating.
“For decades, the Justice Department has used disparate-impact liability to undermine the constitutional principle that all Americans must be treated equally under the law,” said Attorney General Pamela Bondi. “No longer. This Department of Justice is eliminating its regulations that for far too long required recipients of federal funding to make decisions based on race.”
The Washington Post agrees.
The Civil Rights Act of 1964 is aimed at intentional discrimination. The concept of disparate impact stretches that idea to the point of incoherence. It says that different average outcomes among groups — even if there was no intent to discriminate — can still be a civil rights violation. Institutions that receive Justice Department grants have been regulated according to this standard, prohibited from doing anything that has the “effect” of creating disparities among groups.
Not anymore. As Bondi explains, the old standard subjected grant recipients to penalties under Title VI of the Civil Rights Act for “unintentional disparate outcomes, which the recipient may not even know about without investigation.” The regulations created an incentive for institutions to tally and classify their students or employees — Black, White, Mexican, Chinese, Jewish and so on — to avoid numerical imbalances that could trigger liability.
The impact of this rule change by the DOJ will be felt immediately. EEOC will drop almost all its lawsuits that used disparate impact metrics to charge companies with violations of civil rights law.
The American Civil Liberties Union (ACLU) was not happy.
"The ACLU has long relied on disparate impact liability as a tool to remove systemic barriers to opportunity in housing, employment, education, and beyond for historically marginalized people," the group said in a statement. "For example, the ACLU has fought to remove unjust barriers to housing opportunities for Black women and other renters of color by challenging landlords’ use of blanket bans on prior eviction records, regardless of whether the eviction cases were dismissed," the statement said.
“For over 50 years, the prior disparate-impact rule fostered the very thing the Civil Rights Act of 1964 prohibited — discrimination on the basis of race, color, or national origin,” said Chief of Staff and Supervisory Official for the Office of Legal Policy, Nicholas Schilling. “But with today’s rule, the Department reaffirms Congress’ commitment to measure all Americans by merit.”
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The law, as enforced by the EEOC and the DOJ, was a confusing, incoherent mess. As Bondi put it, “The law seems to both forbid and require the same conduct," discriminating against some while giving other Americans a pass.
Claims that these revisions somehow authorize discrimination are bogus. They do the opposite. Purposely treating one group differently than another remains illegal, as it should. And Bondi’s memo notes that “eliminating disparate-impact liability does not preclude the use of data on disparate outcomes to help prove intentional discrimination.”
Intent matters. Otherwise, the federal government has a free-floating license to zealously police the racial composition of private institutions. Some of the Trump administration’s anti-woke agenda has been irresponsible, but this is a reasonable correction to past overreach. Bondi’s memo is a model for other disparate-impact provisions across the federal code to be identified and repealed.
That will happen over the next few months. Any action is likely to be challenged, and the matter will almost certainly end up in the Supreme Court. This court is not likely to rule in favor of disparate impact statements.
But nothing is stopping a later court of leftists from reimposing it. Congress needs to codify the change into law before that happens.
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