Posted on January 7, 2019

Trump Administration Considers Rollback of Anti-Discrimination Rules

Laura Meckler and Devlin Barrett, Washington Post, January 3, 2019

The Trump administration is considering a far-reaching rollback of civil rights law that would dilute federal rules against discrimination in education, housing and other aspects of American life, people familiar with the discussions said.

A recent internal Justice Department memo directed senior civil rights officials to examine how decades-old “disparate impact” regulations might be changed or removed in their areas of expertise, and what the impact might be, according to people familiar with the matter. Similar action is being considered at the Education Department and is underway at the Department of Housing and Urban Development.

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. {snip}


“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 2014, the Obama administration formally advised school systems they may be guilty of racial discrimination if students of color are punished at higher rates.


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. {snip}

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.


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. {snip}