The Trump administration has been considering this change for more than two years but waited until its final weeks to try to put it into effect. A notice about the change was filed for regulatory review at the White House last month and a copy of the proposal was shared with The Washington Post.
The document says the change would “provide much needed clarity to the courts and federal funding recipients and beneficiaries,” noting that the Justice Department currently distributes about $6 billion a year in grants or awards, though it also concedes it is unclear what portion of that might be affected by the planned change.
The planned change was pushed in late December by William P. Barr, one of his last acts as attorney general. A Justice Department spokeswoman declined to comment.
Typically regulations of this magnitude are published first as proposals and the government collects public comment before publishing its final version. It would be unusual to publish a final regulation — particularly one of this magnitude — without going through that process, but the document says that its proposal falls under an exception and therefore the administration is not required to seek public comment.
A government website that tracks the regulatory process shows meetings on this proposal are scheduled with White House officials as late as the morning of Jan. 20, inauguration day. Usually, final rules are not published until after these meetings are held.
Civil rights activists responded with alarm to the news.
“The idea they would use this process at the 11th hour to undermine civil rights protections is deeply alarming though not surprising,” said Becky Monroe, director of the Fighting Hate and Bias program at the Leadership Conference on Civil and Human Rights, who worked at the Justice Department in the Obama administration. “This is a big deal.”
The regulation, if finalized, would directly affect the rules for grants awarded by the Justice Department, but because the agency is involved in legal matters that stretch across the government, it could have a broader effect in setting the tone for legal policies and practices in other agencies.
Still, other agencies would have to issue their own, similar regulations if they wanted to ensure that the new interpretation applied to their grants.
Under the concept of disparate impact, actions can amount to discrimination if they have an uneven effect, even if that was not the intent. Regulations across the government implementing the 1964 Civil Rights Act and its amendments define discrimination as including this unintentional form of bias.
The Trump administration has signaled its hostility to disparate impact analysis on multiple occasions. In 2018, an internal Justice Department memo directed senior civil rights officials to examine how the regulations in this area might be changed or removed across the government, people familiar with the matter said at the time. Rolling back disparate impact analysis has been a longtime goal of conservative legal thinkers. Past Republican administrations have done little to erode the concept’s application, though, partly out of concerns that the Supreme Court might disagree, or that such changes would be unpopular and viewed as racist.
For example, during the Obama administration, the Education Department investigated school systems when data showed that students of color were disciplined at higher rates than their White peers, even if there was no evidence of discriminatory intent. It also issued guidance urging schools to refrain from this type of discrimination.
The Trump administration signaled its hostility to this approach in a report issued in 2018 by the Federal Commission on School Safety, which recommended rescinding this school discipline guidance. In a sharply worded and controversial chapter, the report said the validity of disparate impact analysis “cannot be squared with the Supreme Court’s holdings.” It added that earlier administrations had adopted the concept without regard for what the underlying statute said and said that interpretation was of “questionable validity” and “dubious, at best.”
The administration revoked the guidance a few days later.
The Supreme Court has recognized disparate impact claims, but in a 2015 housing case, its use was upheld by a narrow 5-to-4 vote, in an opinion written by Justice Anthony M. Kennedy, who now is retired. Some conservatives have speculated that the new, more conservative court might decide the same matter differently.
Supporters of disparate impact analysis say it is a critical tool because finding “smoking gun” evidence to prove someone intended to discriminate is difficult. And even if the intention wasn’t to discriminate, advocates say institutions should be held accountable for discriminatory effects.
But conservatives have long argued that proving discrimination should require proof that someone intended to treat people differently. And they say that if people are being judged by numbers, they may feel pressure to make decisions based on racial quotas.