Trump Seeks to Strip Away Legal Tool Key to Civil Rights Enforcement

New York Times

09-05-2025

President Trump has ordered federal agencies to abandon the use of a longstanding legal tool used to root out discrimination against minorities, a move that could defang the nation's bedrock civil rights law.
In an expansive executive order, Mr. Trump directed the federal government to curtail the use of 'disparate-impact liability,' a core tenet used for decades to enforce the Civil Rights Act of 1964 by determining whether policies disproportionately disadvantage certain groups.
The little-noticed order, issued last month with a spate of others targeting equity policies, was the latest effort in Mr. Trump's aggressive push to purge the consideration of diversity, equity and inclusion, or D.E.I., from the federal government and every facet of American life.
The directive underscores how Mr. Trump's crusade to stamp out D.E.I. — a catchall term increasingly used to describe policies that benefit anyone who is not white and male — is now focused not just on targeting programs and policies that may assist historically marginalized groups, but also on the very law created to protect them.
'This order aims to destroy the foundation of civil rights protections in this country, and it will have a devastating effect on equity for Black people and other communities of color,' said Dariely Rodriguez, the acting co-chief counsel at the Lawyers' Committee for Civil Rights Under Law, an advocacy group.
The disparate-impact test has been crucial to enforcing key portions of the landmark Civil Rights Act, which prohibits recipients of federal funding from discriminating based on race, color or national origin. For decades, it has been relied upon by the government and attorneys to root out discrimination in areas of employment, housing, policing, education and more.
Civil rights prosecutors say the disparate-impact test is one of their most important tools for uncovering discrimination because it shows how a seemingly neutral policy or law has different outcomes for different demographic groups, revealing inequities.
Lawyers say the test has been crucial in showing how criminal background and credit checks affect employment of Black people, how physical capacity tests inhibit employment opportunities for women, how zoning regulations could violate fair housing laws, and how schools have meted out overly harsh discipline to minority students and children with disabilities.
Over the last decade, major businesses and organizations have settled cases in which the disparate-impact test was applied, resulting in significant policy changes.
One of the largest settlements involved Walmart, which in 2020 agreed to a $20 million settlement in a case brought by the Equal Employment Opportunity Commission that claimed the company's practice of giving physical ability tests to applicants for certain grocery warehouse jobs made it more difficult for women to get the positions.
The use of the disparate-impact rule, however, has also long been a target of conservatives who say that employers and other entities should not be scrutinized and penalized for the mere implication of discrimination, based largely on statistics. Instead, they argue that such scrutiny should be directed at the explicit and intentional discrimination prohibited by the Civil Rights Act.
Opponents say that that disparate-impact rule has been used to unfairly discriminate against white people. In 2009, the Supreme Court ruled in favor of white firefighters in New Haven, Conn., who claimed reverse discrimination when the city threw out a promotional examination on which they had scored better than Black firefighters.
Mr. Trump's order resurrects a last-ditch effort made in the final days of his first term to repeal disparate-impact regulations through a formal rule-making process, which was nixed by the Biden administration when he left office.
The new order, titled 'Restoring Equality of Opportunity and Meritocracy,' echoes arguments that Mr. Trump has adopted from far-right conservatives, who say that the country has become too focused on its racist history, and that protections from the civil rights era have led to reverse racism against nonminority groups.
Disparate-impact liability is part of 'a pernicious movement' that seeks to 'transform America's promise of equal opportunity into a divisive pursuit of results preordained by irrelevant immutable characteristics, regardless of individual strengths, effort or achievement,' the order stated.
The president ordered federal agencies to 'eliminate the use of disparate-impact liability in all contexts to the maximum degree possible,' under the law and Constitution, and required that agencies 'deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability.'
That means that no new cases are likely to rely on the theory in civil rights enforcement — and existing ones will not be enforced.
His order also instructs agencies to evaluate existing consent judgments and permanent injunctions that rely on the legal theory, which means that cases and agreements in which discrimination has been proved could be abandoned.
The order takes aim directly at the use of the test in enforcing the Civil Rights Act, requiring Attorney General Pam Bondi to begin repealing and amending any regulations that apply disparate-impact liability to implement the 1964 law.
One of the most glaring examples in history of how seemingly race-neutral policies could disenfranchise certain groups are Jim Crow-era literacy tests, which some states set as a condition to vote after Black people secured rights during Reconstruction.
The literacy tests did not ask about race, but were highly subjective in how they were written and administered by white proctors. They disproportionately prevented Black people from casting ballots, including many who had received an inferior education in segregated schools, and were eventually outlawed with the passage of the Voting Rights Act of 1965.
In 1971, the Supreme Court established the disparate-impact test in a case that centered on a North Carolina power plant that required job applicants to have a high school diploma and pass an intelligence test to be hired or transferred to a higher-paying department. The court ruled unanimously that the company's requirements violated the Civil Rights Act because they limited the promotion of minorities and did not measure job capabilities.
Mr. Trump's executive order, which is likely to face legal challenges, falsely claimed that the disparate-impact test was 'unlawful' and violated the Constitution. In fact, the measure was codified by Congress in 1991, upheld by the Supreme Court as recently as 2015 as a vital tool in the work of protecting civil rights, and cited in a December 2024 dissent by Justice Samuel A. Alito Jr.
Harrison Fields, a White House spokesman, said the disparate impact theory 'wrongly equates unequal outcomes with discrimination and actually requires discrimination to rebalance outcomes.'
'The Trump administration is dedicated to advancing equality, combating discrimination and promoting merit-based decisions, upholding the rule of law as outlined in the U.S. Constitution,' Mr. Fields said.
GianCarlo Canaparo, a senior legal fellow at the Heritage Foundation who has argued that eliminating disparate impact would be the final blow to D.E.I., noted that Mr. Trump would need the help of Congress to fully eradicate the rule.
But he said the president's order would still have a 'salutary' impact on the American public by helping people understand that racial animus and disparate outcomes 'are not the same things, and they shouldn't be treated the same way in law.'
'These claims that racial discrimination is the sole cause of racial disparities in this country is just empirically false,' Mr. Canaparo said. 'The problem with disparate-impact liability is that it presumes that falsehood is true, and accordingly distorts civil rights.'
Mr. Trump's order contends that businesses and employers face an 'insurmountable' task of proving they did not intend to discriminate when there are different outcomes for different groups, and that disparate impact forced them to 'engage in racial balancing to avoid potentially crippling legal liability.'
Catherine E. Lhamon, who served as the head of the Education Department's Office for Civil Rights under Presidents Barack Obama and Joseph R. Biden Jr., disputed that. Her office conducted several disparate-impact investigations that found no intentional wrongdoing, she said.
'It's a rigorous test,' Ms. Lhamon said, 'and sometimes it proves discrimination and sometimes it doesn't.'
The order's impact will be particularly felt at the Education Department, where the Office for Civil Rights has heavily relied on data showing disparate outcomes when investigating complaints of discrimination in schools.
In one case, the office examined large disparities in the rates of Native American students being disciplined, particularly for truancy, compared with their white peers in the Rapid City Area Schools in South Dakota. In the course of the investigation, the school superintendent attributed the tardiness of Native American students to 'Indian Time,' the Education Department report stated. The superintendent later apologized and was fired.
Last year, the school district agreed to make changes to its practices as part of a voluntary resolution agreement with the Education Department. The Trump administration abruptly ended that agreement in April, citing the president's directives to eliminate race-conscious policies.
The Justice Department has also long relied on the theory to identify patterns of police misconduct and other discrimination pervasive in communities of color. In 2018, the department helped secure a settlement and a consent decree with the City of Jacksonville and the Jacksonville Fire Department after finding that Black firefighters were blocked from promotions because of a test that did not prove necessary for the fire department's operations.
Now the Justice Department's embattled civil rights division has halted the use of disparate-impact investigations altogether, officials said.
In an interview last month, Harmeet K. Dhillon, the assistant attorney general for civil rights, praised the executive order for rolling back what she called 'a very discredited' theory that 'should be overruled.'
'We're not in that business anymore, pursuant to the executive order,' she told the conservative podcast host Glenn Beck.
She went on to suggest that the level of discrimination that spurred civil rights laws no longer existed. 'It's 2025, today,' she said, 'and the idea that some police department or some big employer can be sued because of statistics, which can be manipulated, is ludicrous and it is unfair.'
Civil rights advocates say Mr. Trump is trying to effectively gut anti-discrimination laws by fiat.
Ms. Rodriguez, of the Lawyers' Committee for Civil Rights Under Law, said disparate impact had become a crucial guardrail for 'ensuring that there are no artificial barriers that are limiting equal access to economic opportunity in every facet of our daily life.' The test helps root out discrimination that many people may not realize is constraining their opportunities, she added.
'The impact of this,' Ms. Rodriguez said of Mr. Trump's order, 'cannot be overstated.'