Under the concept of disparate impact, actions can amount to discrimination if they have an uneven effect even if that was not the intent, and rolling back this approach has been a longtime goal of conservative legal thinkers. Past Republican administrations have done little to erode the concept’s application, partly out of concerns that the Supreme Court might disagree, or that such changes would be unpopular and viewed as racist.
Civil rights advocates said diminishing this tool could have sweeping consequences.
“Disparate impact is a bedrock principle,” said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law. “Through the courts, we’ve been able to marshal data and use the disparate-impact doctrine as a robust tool for ferreting out discrimination.”
In New York, a lawsuit alleges that a large apartment complex in Queens will not rent to anyone with a criminal record, and that this has the effect of discriminating against African American and Latino renters. The suit is pending, relying on disparate impact to make the case.
In Maryland, civil rights groups complained to the federal government after the state shifted transportation money from a light-rail project that would have helped mostly African American residents of Baltimore. The money instead went to bridge and road projects that served mostly white residents elsewhere in the state. A Transportation Department investigation into the matter was closed this summer.
In education, the Obama administration reached settlements with school systems such as the one in Lodi, Calif., where an investigation found widespread disparities in student discipline. African American students, for instance, were five times as likely as white peers to receive out-of-school suspensions for willful defiance or disruption.
In 2014, the Obama administration formally advised school systems they may be guilty of racial discrimination if students of color are punished at higher rates.
When investigators and courts incorporate disparate impact in a review, they are looking at more than the intent of laws or practices. They are also evaluating whether a policy’s impact varies based on race, ethnicity or other factors. 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 signaled its hostility to this approach in a report issued last month by the Federal Commission on School Safety, which recommended rescinding the 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.” The administration revoked the guidance a few days later.
Disparate impact was written into the original regulations that implemented Title VI of the 1964 Civil Rights Act, which bars discrimination based on race, color or national origin by entities, including schools, that receive federal funding. The school safety report argued that earlier administrations had adopted the concept without regard for what the underlying statute said. It said that interpretation was of “questionable validity” and “dubious, at best.”
One person familiar with the administration’s planning said the strong language in the school safety panel’s report “really signals the direction that the administration is going in.” To that end, the Education Department is considering replacing the original Title VI regulation, this person said. He and others spoke on the condition of anonymity because they were not authorized to describe internal discussions.
One option under consideration includes “clarifying” the Title VI regulation to make its use consistent with the Trump administration’s legal views. Another option would replace the regulation with a new one, which would require a formal and lengthy process of public notice and comment.
Those options are separate from the Justice Department memo, which was described by a person familiar with the document as a starting point for moving toward removing disparate-impact-based regulations across the federal government.
In June, the Department of Housing and Urban Development published a notice announcing that it plans to consider revising its 2013 regulation on disparate-impact claims in the Fair Housing Act, which prohibits discrimination on the basis of race, religion and other factors in sale, rental or financing of housing. The agency signaled that it was reconsidering how the regulations affect the insurance industry, which has challenged them in court.
Data showing that a policy resulted in uneven consequences is not sufficient to prove a discrimination claim. A school or other institution accused of discrimination under the concept of disparate impact can defend itself by showing the policy is justified and that no other method exists to accomplish a goal.
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, now retired. Some conservatives have speculated that the new court, with Justice Brett M. Kavanaugh in Kennedy’s place, might decide the same matter differently.
Much — but not all — of the disparate-impact law could be changed by the administration because the concept was incorporated through regulations, which administrations are free to change by following a formal process. A broad-based rewrite of regulations could affect areas such as transportation and environmental law, as well as education and housing. But it would be harder to make changes to voting and employment law, experts say, because the concept of disparate impact is overtly written into the underlying statute, not just the regulations.
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.
“Most people don’t have access to what’s going on in somebody’s mind. Even if a decision was intentionally discriminatory, it’s going to be very difficult to prove,” said Ajmel Quereshi, senior counsel with the NAACP Legal Defense Fund.
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.
“The disparate-impact approach requires decision-makers to make decisions with an eye on race. That is exactly what the civil rights laws are supposed to prohibit,” said Roger Clegg, president of the Center for Equal Opportunity, a conservative think tank focused on race and ethnicity. He said he has lobbied Trump administration officials to write the idea out of federal regulations.
Disparate-impact analysis, he argued, is not necessary to combat “true discrimination.” He said he also tried to persuade officials in the George W. Bush administration to do the same, without results. “The Bushes were very skittish on civil rights issues,” he said.
“I’m sure that my counterparts are saying this is a radical change,” Clegg added. “Yes, it’s been used for a long time, but it’s been controversial for a long time.”