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Boston Globe
10-05-2025
- Politics
- Boston Globe
Trump seeks to strip away legal tool key to civil rights enforcement
The directive underscores how Trump's crusade to stamp out DEI -- 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. Get Starting Point A guide through the most important stories of the morning, delivered Monday through Friday. Enter Email Sign Up '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 . Advertisement 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. Advertisement 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 the 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, Connecticut, who claimed reverse discrimination when the city threw out a promotional examination on which they had scored better than Black firefighters. Advertisement 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 Trump has adopted from far-right conservatives, who say 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 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. 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 Alito. Advertisement Harrison Fields, a White House spokesperson, 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,' Fields said. 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 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 Trump is trying to effectively gut antidiscrimination laws by fiat. 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. Advertisement 'The impact of this,' Rodriguez said of Trump's order, 'cannot be overstated.' This article originally appeared in
New York Times
09-05-2025
- Politics
- New York Times
Trump Seeks to Strip Away Legal Tool Key to Civil Rights Enforcement
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.'
New York Times
21-03-2025
- Politics
- New York Times
Trump Administration Dropped Policy Prohibiting Contractors From Having Segregated Facilities
The Trump administration has removed a longstanding directive from the civil rights era that explicitly prohibited federal contractors from allowing segregated facilities, the latest move to eradicate diversity, equity and inclusion policies from government operations that has drawn fierce rebuke. The removal of the segregated-facilities policy was included in a memo last month from the General Services Administration, which manages federal property and oversees procurement for the federal government. The memo, which applies to all civilian federal agencies, was among the many directives from agencies aiming to purge safeguards put in place in the 1960s to comply with executive orders issued by President Trump on race and gender identity. In his first days in office, Mr. Trump directed agencies to rid their agencies of 'harmful' and 'wasteful' diversity policies, and 'gender ideology extremism.' The memo, which came to light after it was reported by National Public Radio this week, drops several clauses from the G.S.A.'s Federal Acquisition Regulation, which is used to solicit contracts for services and supplies. The memo said the wording was 'not consistent with the direction of the President.' Among the deletions is a policy, last updated in 2015, that stipulated federal contractors couldn't have 'segregated facilities,' such as waiting rooms, work areas, restrooms, lunchrooms and water foundations. The Civil Rights Act of 1964 still bars discrimination, and segregated facilities, in the United States. But civil rights groups have feared that Mr. Trump's war on D.E.I. programs has signaled the federal government's willingness to retreat from enforcing it. Dariely Rodriguez, the acting co-chief counsel for the Lawyers' Committee for Civil Rights Under Law, said that like Mr. Trump's revocation of a decades-old order issued by President Lyndon B. Johnson barring discrimination in hiring for government contractors, the stripping of the segregation provision 'weakens the very safeguards that promote equity and inclusion across multiple sectors, including workplaces.' 'The Trump administration's actions are pressure-testing our democracy, eroding more than 60 years of progress,' Ms. Rodriguez said. 'The Civil Rights Act of 1964 remains the law of the land,' she added, 'but laws are only as strong as their enforcement.' In a statement to The Times, Stephanie Joseph, a spokeswoman for the General Services Administration, said that the G.S.A. would 'continue to ensure that our federal contractors comply with long established civil-rights provisions found in U.S. laws.' She also said, 'G.S.A. is committed to supporting the President's direction to streamline the federal contracting process to restore merit-based opportunity, enhance speed and efficiency, and reduce costs.' Margaret Huang, the president and chief executive of the Southern Poverty Law Center, called the measure 'another step backwards that threatens to create hostile work environments for women, people of color and others who have faced a history of employment discrimination.' 'We hope contractors have the good sense not to reintroduce segregation into the workplaces,' she said, 'but this decision sends a clear message that the federal government does not care if they do.' The White House dismissed the criticism as 'unserious falsehoods' and 'baseless reporting' that undermined Mr. Trump's charge by his voters to unify the country. 'President Trump continues to follow the law in his pursuit to reverse the disastrous policies of the previous administration and unleash prosperity through deregulation,' Harrison Fields, a White House spokesman, said in a statement. 'Thanks to his leadership, businesses will face fewer bureaucratic roadblocks and have a smoother path to working with the federal government.' The White House has argued that Mr. Trump's executive orders were not aimed at any particular group of people and that agencies have had autonomy in implementing them. But the fallout has disproportionately focused on policies that impact Black people, from purges of employees of color and the erasure of their history.
