The Trump administration has reversed multiple government policies implemented in previous administrations, including rolling back protections in the Affordable Care Act, lifting limits on greenhouse gas emissions and limiting the Justice Department’s use of consent decrees, which ProPublica calls “a storied civil rights tool,” one that supporters say forces local and state governments to implement civil rights reforms that might otherwise languish.
Now civil rights laws are once again in danger of a major rollback, according to a new internal memo from the Justice Department, details of which were reported by The Washington Post Thursday.
Trump administration officials, in the memo, directed senior civil rights officials to review how “disparate impact” regulations can be changed or removed in the officials’ area of expertise. Under the concept of disparate impact, an action or policy can be considered discriminatory if it has an unequal impact based on, for example, race or ethnicity, even if that impact was unintentional.
Similar reviews, the Post reports, are also under consideration at the Department of Education, as well as at Housing and Urban Development. The concept has been applied to lawsuits in multiple issues.
In housing, this applies to lawsuits like one in New York, against an apartment complex with a policy of not renting to anyone with a criminal record. The plaintiffs allege that the rule has an uneven, discriminatory impact against potential African-American and Latino renters, and is relying on disparate impact to make that case.
In education, the Obama administration previously reached settlements with multiple school districts, including one in a Lodi, Calif., which found disparities in how students were disciplined. “African American students,” the Post writes, “were five times as likely as white peers to receive out-of-school suspensions for willful defiance or disruption.”
Limiting the power of disparate impact “has been a longtime goal of conservative legal thinkers,” the Post writes. They’ve avoided action however, “partly out of concerns that the Supreme Court might disagree, or that such changes would be unpopular and viewed as racist.” Roger Clegg, president of the Center for Equal Opportunity, a conservative think tank focused on race and ethnicity, has previously lobbied against disparate impact and said even the George W. Bush administration was “skittish on civil rights.”
Civil rights lawyers and advocates say limiting the use of disparate impact could cripple anti-discrimination laws. “Disparate impact is a bedrock principle,” Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, told the Post. She added, “Through the courts, we’ve been able to marshal data and use the disparate-impact doctrine as a robust tool for ferreting out discrimination.”
Discrimination can be insidious and hard to prove. As Ajmel Quereshi, senior counsel with the NAACP Legal Defense and Educational Fund, told the Post, “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.”
Read the full article here.