Posted on January 8, 2021

Justice Dept. Seeks to Pare Back Civil Rights Protections for Minorities

Katie Benner and Erica L. Green, New York Times, January 5, 2021

The Trump administration has embarked on an 11th-hour bid to undo some civil rights protections for minority groups, which could have a ripple effect on women, people with disabilities and L.G.B.T. people, according to a draft document, in a change that would mark one of the most significant shifts in civil rights enforcement in generations.

The Justice Department has submitted for White House approval a change to how it enforces Title VI of the Civil Rights Act, which prohibits recipients of federal funding from discriminating based on race, color or national origin. The regulation covers housing programs, employers, schools, hospitals, and other organizations and programs.

Under the change, the department would continue to narrowly enforce the law’s protections in cases where it could prove intentional discrimination, but no longer in instances where a policy or practice at issue had a “disparate impact” on minority or other groups.

Civil rights groups say that the disparate impact rule is one of their most important tools for showing discrimination because it takes into account patterns of behavior that can seem neutral and compare outcomes for different groups to reveal inequities. Such cases make up most discrimination litigation, as businesses and organizations rarely disclose that they are purposefully engaging in the practice.

But the Justice Department argued that its current approach to enforcing civil rights protections addressed “a vastly broader scope of conduct” than the statute itself prohibits, according to a copy of its draft proposal to amend the regulations obtained by The New York Times. The most substantial amendments to the rule would eliminate references to policies and practices having “the effect of” subjecting individuals to discrimination.

The move is the latest in the Trump administration’s efforts to pare back civil rights protections for minority and other groups. It has curtailed other regulations, reversed affirmative action policies and cut government diversity training. The Justice Department effort also dovetails with a decades-long project in the conservative legal movement to push back on civil rights protections seen as going beyond the law.

The Justice Department quietly submitted the change to the White House Office of Management and Budget on Dec. 21, making it one of former Attorney General William P. Barr’s final acts. {snip}

Should the revised language be put in place, as the White House is expected to do, progressive legal groups are likely to challenge it, setting up a potential review by a Supreme Court with a conservative majority seen as hostile to civil rights protections. The incoming Biden administration could not immediately reverse the move, but a new attorney general could delay its enactment.


The change would be the Justice Department’s first substantial amendment to how it defines discriminatory behavior in Title VI since 1973, according to the draft document.

That proposed change would have broad impact across the federal government because the Justice Department is responsible for defining how the law prohibits discrimination and the attorney general must approve other agencies’ related regulations. {snip}


A widely cited example of disparate impact has been the Jim Crow-era literacy tests that some states created as a condition to vote. The tests did not ask about race and so seemed neutral on their face. But they disproportionately prevented Black people from voting because they had long been forced out of schools and could not read. The tests are generally thought of as discriminatory because of that disparate impact on Black people.

More recently, the protections against disparate impact were crucial to Education Department investigations into disproportionate discipline rates among Black and Latino students in schools. It allowed the department’s Office for Civil Rights to “look at policies and take into account harmful outcomes,” said Shiwali Patel, senior counsel for the National Women’s Law Center, who worked in the office during the Obama and Trump administrations.

In several cases, the office found that schools were disciplining students differently by race.


The Trump administration has long sought to eliminate protections for groups at risk of suffering such impacts, arguing that the Civil Rights Act as passed by Congress only safeguards against intentional acts of discrimination.

The administration had embraced the legal objections of conservative allies, including the widely influential Heritage Foundation, and had put the regulation on a list of anti-discrimination laws championed by the Obama administration whose regulations it planned to revise had President Trump won a second term.