A late move by the Trump administration would stop enforcement of protections against discriminatory practices that have a “disparate impact” on protected groups.
WASHINGTON — 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. It did not make the language available for public review or comment, as is typically required in the federal rule-making process, citing an exception for matters related to agency loans, grants and contracts because the rule covers organizations that receive federal funding.
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.
A Justice Department spokeswoman did not immediately respond to a request for comment.
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. The draft rule noted a signature line for Mr. Barr.
“The regulation and explanation are exceedingly sparse, and it shows the dangers of rule-making without following the legally required process, including opportunities for public comment,” said Lauren Sampson, a staff attorney at Lawyers for Civil Rights.
She added that the department’s proposal incorrectly says that the Supreme Court has raised questions about disparate impact as not legally sound, when it has upheld as recently as 2015 disparate impact as a vital tool in the work of protecting civil rights.
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.
“Disparate impact analysis is important to create accountability at schools around the discriminatory effects of discipline policies, particularly since it’s difficult to prove racially motivated intent behind the policies,” Ms. Patel said.
The Justice Department also relied on Title VI to conduct investigations into policing, including a high-profile examination of the Baltimore Police Department that found widespread civil rights violations against the city’s Black residents, according to Becky Monroe, a lawyer at the Leadership Conference on Civil and Human Rights who worked at the Justice Department.
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.
“Federal agencies are honeycombed with policies that adopt the disparate-impact approach, and the Trump administration needs to root them out,” Roger Clegg, the former president and general counsel of the Center for Equal Opportunity, a conservative think tank, wrote in National Review in 2018.
The Trump administration has already signaled its objection to the concept and taken steps to undermine it.
In 2017, the administration closed a complaint from civil rights groups, including the NAACP Legal Defense and Educational Fund, alleging that the cancellation of a large transportation project in Maryland called the Red Line by Gov. Larry Hogan, a Republican, violated the Civil Rights Act because it disproportionately hurt the city’s Black residents. The Transportation Department shelved the complaint, which was opened on the last day of the Obama administration, without a finding or an explanation.
The most forceful denouncement of the regulation came in 2018, when the Trump administration essentially blamed an Obama-era guidance document that addressed the disproportionate discipline rates among children of color in the United States for the mass shooting carried out by a troubled white student in Parkland, Fla.
Trump administration officials sought extensively to link the document to the disparate impact doctrine. In the days before the Education and Justice Departments rescinded the document in December 2018, a federal school safety commission headed by Education Secretary Betsy DeVos issued a report recommending the guidance be withdrawn because it “relies on a disparate impact legal theory, but that theory lacks foundation in applicable law.” It called the document’s reading of the law “dubious, at best.”
Last fall, the Department of Housing and Urban Development completed a rule that would have weakened anti-discrimination policies regulating the mortgage industry.
The move drew a highly unusual request from the country’s four biggest banks — which would benefit from the proposed changes — that the department avoid rewriting the requirements. The federal government “should acknowledge that Americans’ attention to racial discrimination is more pronounced and expansive,” Michael DeVito, Wells Fargo’s executive vice president for home lending, wrote in a letter to the housing secretary, Ben Carson.
Civil rights lawyers sued the department, and in October, a federal judge in Massachusetts issued a nationwide injunction on the rule, finding it arbitrary and capricious.
“These significant alterations, which run the risk of effectively neutering disparate impact liability under the Fair Housing Act, appear inadequately justified,” Judge Mark Mastroianni wrote.
Among the first cases in which the Supreme Court tackled disparate impact was an education dispute, Lau v. Nichols, in which non-English-speaking Chinese students sued the San Francisco Unified School District for not offering bilingual education or remedial English, arguing that they were not afforded the same educational benefits as their English-speaking peers.
In 1974, the court ruled in favor of the plaintiffs, citing an agency regulation issued under Title VI that said that “discrimination is barred which has that effect even though no purposeful design is present.”
The case cemented the concept of disparate impact as a bedrock of educational civil rights enforcement and is also credited for robust programming for English-language learners now. The Justice Department’s move could jeopardize that, advocates warned.
“Deleting this regulation not only denies the government an important enforcement tool for detecting and addressing racial discrimination, but it will draw into question longstanding requirements that organizations that take federal funds from the department provide meaningful access to their programs to people who do not speak or read English,” said Seth Galanter, the senior director of the National Center for Youth Law.
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