An internal Justice Department memo directed senior civil rights officials to examine how disparate impact regulations can be changed or removed, the Washington Post reports.
Disparate impact is the idea in civil rights law that a rule might be discriminatory even if it doesn’t have that intent.
For example, the Obama administration reached a settlement with the Lodi Unified School District in California after it found that several seemingly neutral policies – like allowing schools within the district to set their own disciplinary policies, and schools with a higher percentage of African American students having tougher punishments for the same disciplinary incidents – resulted in a negative impact on black people, even though Obama administration lawyers never proved a racist intent.
“Disparate impact is a bedrock principle,” said Kristen Clarke, 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.”
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Several unnamed sources familiar with the matter told the Washington Post that the Education Department and the Department of Housing and Urban Development are also considering doing away with regulations based on disparate impact.
Last month, the Trump administration’s Federal Commission on School Safety released a report that rescinded 2014 Obama administration advice that schools may be guilty of racist discrimination if disciplinary procedures punish students of color more harshly than white students.
The report said that disparate impact analysis – which was adopted across the government after the passage of the Civil Rights Act of 1964 – “cannot be squared with the Supreme Court’s holdings.”
The 2014 guidance was formally revoked in December.
One source the Washington Post talked to said that the report “really signals the direction that the administration is going in.”
This is not the first aspect of civil rights law the Trump administration has attacked. In 2017, the Justice Department filed a brief that argued that fighting anti-LGBTQ discrimination is not a good enough reason for states to pass certain laws, and the Trump administration has long supported broad and sweeping religious exemptions that allow those accused to discriminating to break the law if they say they were motivated by their religious beliefs.
