The Washington Post reports that the Trump administration is undoing one of the core legal principles guiding civil rights law in the United States. For decades, federal discrimination cases have been brought on the basis of a standard known as “disparate impact,” where ostensibly neutral policies can have discriminatory effects, even if no intent to discriminate is found. This standard emerges from a 1971 Supreme Court case, Griggs v. Duke Powerin which plaintiffs successfully demonstrated to the Justices through statistical analysis that standardized testing was preventing black employees from advancing in the company.
This legal precedent – which has been reaffirmed by SCOTUS in subsequent decisions, informed Department of Justice criteria for bringing cases, and made it into legislation – was done away with an executive order issued on April 23rd titled “Restoring Equality of Opportunity and Meritocracy” by President Trump. “It is the policy of the United States to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible to avoid violating the Constitution, Federal civil rights laws, and basic American ideals,” the order reads, before undoing a list of previous presidential executive orders, and directing the DOJ to “deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability.”
The Post’s analysis goes in depth on the real-world consequences of the order. Two banks, one in Tennessee and another in Florida, had entered agreements with the DOJ to reform their policies after they were both found to have discriminated against Black and Latino communities in Memphis and Jaksonville, respectively. As has been typical strategy for decades, the DOJ demonstrated the discrimination through statistical disparities in their client base over a five-year period, and both banks were also found to have engaged in intentional discrimination, having advertised only in majority-White neighborhoods. In May, both agreements were scrapped by the DOJ.
Another case uncovered by WaPo is that of a school district in South Dakota, where a Department of Education investigation found that Native American students were being referred for disciplinary action at double the rate of the White peers, and also had fewer opportunities for advanced placement classes in a majority-Native school than a majority-White school. The Biden administration reached a voluntary agreement with the district, enacting measures to improve communication with parents, train staff, and ongoing monitoring, among other measures. The deal was undone by the Trump administration in March.
The report also goes on to list a number of other cases that have either already been undone by the Trump administration or are prime targets for the same treatment. In attacking each of these cases, the White House is chipping away at the tenet of disparate impact and inching closer to a larger goal. “It’s clear what the Trump administration is aiming for is to get this question to the Supreme Court in hopes the Supreme Court will take that tool away,” a lawyer for the Legal Defense Fund, a minority civil rights advocacy group, told the Post.
