Featured Article: Trump Justice Department Discontinues Disparate Impact Liability

Last week, the Department of Justice (DOJ) announced that it would end its use of disparate impact liability, a significant step in the Trump administration’s broader effort to dismantle the ideology behind it. The move followed a May Executive Order (EO) directing the executive branch to abandon disparate impact enforcement.
 

While Federal agencies typically allow time for public comment before putting forth a final rule like this, the DOJ’s citing of a provision within the Administrative Procedures Act that “allows a final rule to be published without prior public notice or comment if it relates to federal loans, grants and contracts” signals the Trump administration’s seriousness on this issue—but there is certainly more to be done.
 

For those unfamiliar, disparate impact liability was an extension of the Civil Rights Act of 1964. While the original Civil Rights Act, specifically Title IV, prohibits discrimination on the basis of race, color, or national origin in educational programs and activities receiving Federal financial assistance, and Title VI maintains that no person, on the basis of race, color, or national origin be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any federally funded program or activity, the 1973 addition of the new disparate impact rule seemingly undermined the intent of the original Act. Disparate impact “refers to the concept of imposing liability on a federal fund recipient only because there may be different outcomes for different people, not based on prejudice or intent.” Such “discrimination occurs when a seemingly neutral policy or action causes a disproportionate and unjustified negative harm to a group, regardless of intent.” The DOJ’s announcement last week that it will remove disparate impact from its regulations under Title VI of the Civil Rights Act “means that a program or decision-maker is no longer presumed guilty of racial discrimination simply because policies or decisions affect members of different racial or ethnic groups differently,” says Teresa Manning. 
 

As a matter of practice, the issue with disparate impact comes down to the conceptual shift it makes away from intent. While the Civil Rights Act protects against intentional discrimination, disparate impact theory effectively replaces that standard with outcomes—think using “unequal” results as direct proof of discrimination, even if the intent of the policy or action was race-neutral. In reality, every policy and practice benefits some more than others, and an equality of results does not occur in nature without intervention—if at all. Thus if disparate impact is used as a measuring tool by the government, it perpetuates an unnecessary cycle of government intervention and overreach. 
 

But how does disparate impact theory affect higher education? 
 

First, as our report Waste Land notes, “Disparate impact theory, as applied to education, holds that any policy with disparate racial or sexual effect violates civil rights law.” The intent of disparate impact liability may have originally been well intentioned, but time has shown that the rule tends to only work one way—to the opposite effect of protecting against discrimination. Citing Title IV of the Civil Rights Act and the accompanying disparate impact theory, the Department of Education (ED) has supported policies that apply informal race and sex quotas upon the educational system. In past practice, disparate impact theory was used as follows,
 

In 1999, for example, ED distributed draft guidelines that would “challenge the use of standardized tests when they have a ‘disparate impact’ on racial or ethnic groups.” Disparate impact theory threatens to make special education impossible to function, since ED investigates states and school districts for civil rights violations whenever they identify too few or too many students of each race who need special education.

Additionally, disparate impact theory has crippled school discipline practices. K-12 schools in particular were cautioned by the ED that any racially disparate impact in school hearings could be investigated and/or prosecuted as a violation of civil rights law. This had a clear chilling effect upon teachers and school administrators when doling out discipline, as the threat of federal investigation or loss of federal funding is a sufficient motivator to avoid being accused of violating Title VI because of disparate impact theory. The ED’s use of disparate impact was further entrenched by its illegal expansion of the scope of antidiscrimination law, see Waste Land for more on this.
 

What happens now? 
 

For starters, “The Department’s new rule ensures that recipients of federal funding will be judged on their actual conduct, not on statistical outcomes or circumstances beyond their control,” meaning that colleges and universities who receive federal funding will have to shape up and ship out discriminatory practices or face DOJ scrutiny. In February of this year, the National Association of Scholars recommended the ED declare that disparate impact theory has no legal standing and should,
 

• Rescind all policies, documents, case resolutions, and investigations that depend upon the disparate impact standard. 
• Particularly rescind all policies, documents, case resolutions, and investigations concerning school discipline and special education that depend upon the disparate impact standard. 
• Inform all educational institutions that they are not obliged to use any policy that depends upon the disparate impact standard. 
• Inform all educational institutions that policies that depend upon the disparate impact standard may themselves constitute violations of civil rights if they are conducted with discriminatory intent.

To truly eradicate disparate impact at all levels will require Congress to rewrite the laws as well as the courts to narrow or find disparate impact theory unconstitutional. The ED could also follow the DOJ with their own rule to strengthen the Trump administration’s executive branch crusade against disparate impact theory. In the meantime, the EO and the DOJ rule will do a lot to weaken disparate impact now and possibly in future, with continued efforts to reform.
 

Until next week.

About the NAS