Trump's silent strike on civil rights enforcement

In an Executive Order that received relatively little attention, the Trump administration launched an assault on a crucial aspect of civil rights law: disparate impact liability. This allows proving discrimination by showing the discriminatory effects of a policy or law without needing to prove that there was an intent to discriminate. On April 23, President Trump issued an Executive Order, "Restoring Equality of Opportunity and Meritocracy." It declares: "It is the policy of the United States to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible to avoid violating the Constitution, Federal civil rights laws, and basic American ideals." 

It is impossible to overstate how devastating it would be for the enforcement of civil rights laws to end disparate impact liability. It is enormously difficult to prove intentional discrimination on the basis of race or sex. Decision-makers rarely express racism or sexism as their motives for action. Moreover, volumes of literature document that we all have unconscious biases that influence our choices. At the very least, we should be concerned when our laws or practices have the effect of perpetuating discrimination.

For over half a century, federal civil rights laws have been interpreted to allow liability based on proof of discriminatory impact on the basis of race or sex even if there is no proof of an intent to discriminate. In 1971, in Griggs v. Duke Power Company, the Supreme Court held that Title VII of the 1964 Civil Rights Act - which prohibits employment discrimination based on race, sex, or religion - creates liability when there is disparate impact. The Court held that even if there is no discriminatory intent, an employer may not use a job requirement that functionally excludes members of a certain race if it has no relation to measuring performance of job duties. The Court rightly interpreted Title VII as saying that tests or measures used in hiring are not permissible if they have a discriminatory effect unless they have some connection to the job.

In 1982, Congress amended the Voting Rights Act to provide that proof of a racially discriminatory impact was sufficient to establish liability for a state or local government. In 1980, in City of Mobile v. Bolden, the Supreme Court held that proving a denial of equal protection under the Constitution with regard to voting required demonstrating discriminatory intent. But Congress, by statute, can provide more protection of rights than exist under the Constitution. It did exactly that by amending Section 2 of the Voting Rights Act to provide that a state or local government acts illegally if it adopts an election practice that has a racially discriminatory effect.

Most recently, in 2015, in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., the Court held that Congress intended to allow disparate impact liability under the Fair Housing Act.

Additionally, federal agencies have adopted regulations under civil rights laws that are clear that discrimination can be proven by showing a racially disparate effect. Title VI of the 1964 Civil Rights Act says that recipients of federal funds cannot discriminate on the basis of race. Federal regulations provide that proof of racially disparate impact is sufficient for a violation of Title VI.

Disparate impact liability thus long has been a cornerstone of enforcing civil rights law.

It makes the Trump effort to end this potentially devastating. In his April 23 Executive Order, President Trump ordered "all agencies shall deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability." Furthermore, he ordered federal agencies, such as the Equal Employment Opportunity Commission, to "take appropriate action with respect to such matters consistent with the policy of this order." In other words, he wants federal agencies to stop finding liability based on disparate impact. Additionally, the Executive Order rescinded regulations from 1966 and 1973 approving disparate impact liability under Title VI

The Executive Order seeks to undo the countless instances in which there have been settlements or injunctions providing remedies based on disparate impact. It commands reviewing all "existing consent judgments and permanent injunctions that rely on theories of disparate-impact liability and take appropriate action with respect to such matters consistent with the policy of this order."

And the Executive Order does not stop with changing federal law. It commands the Attorney General to "take appropriate measures" to have state civil rights laws that create disparate impact liability to be deemed preempted by federal law.

Simply put, the Trump administration is trying by Executive Order to make it vastly more difficult to prove discrimination and to enforce civil rights laws. Its purported justification is that the Constitution requires that the government be colorblind and "[d]isparate-impact liability all but requires individuals and businesses to consider race and engage in racial balancing to avoid potentially crippling legal liability."

The premises of the Executive Order are wrong. Never has the Supreme Court held that the Constitution mandates "colorblindedness." Indeed, in Students for Fair Admission v. President and Fellows of Harvard College (2003), only Justice Clarence Thomas interpreted equal protection as requiring this. But that is not what the Constitution says, and the Congress that ratified the Fourteenth Amendment adopted a number of race-conscious programs, indicating that colorblindness never was intended.  

Moreover, decision-makers should be attentive to the discriminatory consequences of their actions. In a society with a long history of racism, the racially discriminatory effects of policies are not a reflection of coincidence. As the Supreme Court has long recognized, the disparate impact of a practice or law requires close scrutiny because so often it reflects biases and perpetuates discrimination.

President Trump cannot change federal statutes by an Executive Order. Courts can and must continue to apply federal laws creating disparate impact liability. Nor can the President by fiat change government rules. That requires following the rule-making procedure mandated by the federal Administrative Procedures Act.

But federal enforcement of civil rights laws obviously will dramatically lessen during the Trump presidency. Even more disturbing, it is clear that the Trump administration will make a concerted effort to do all it can to end disparate impact liability. It is an enormous setback for racial equality in the United States.