Trump Curtails Legal Tool That Enforces Civil Rights

Order Ends the 'Disparate Impact' Test For Whether Policies Discriminate

Author

Matt Davis
May 11, 2025

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Today’s front page story is by Erica L. Green and focuses on how President Trump issued an executive order last month with a spate of others targeting equity policies. It was “little-noticed” at the time, Ms. Green reports. But 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 order shows how Mr. Trump’s anti-DEI crusade — “a catchall term increasingly used to describe policies that benefit anyone who is not white and male” — is focused not just on targeting policies and programs that may assist historically marginalized groups, Ms. Green reports. Now, he’s focused on “the very law created to protect them.”

Let’s have somebody explain why this is a nightmare, shall we? Okay…

“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.

Thanks, Dariely! One of the most glaring examples in history of how seemingly race-neutral policies could disenfranchise certain groups are Jim Crow-era literacy tests. Some states set these up as a condition to vote after Black people secured rights during Reconstruction. They were outlawed with the passage of the Voting Rights Act of 1965. Another?

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.

From employment to housing, policy, education and more, the disparate-impact test has been crucial to enforcing key portions of the landmark Civil Rights Act. That Act prohibits recipients of federal funding from discriminating based on race, color or national origin.

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.

Yep. I must say the disparate-impact test sounds like a great tool to test for whether a law has a…disparate impact. It’s also held businesses like Walmart accountable. They paid a $20 million settlement five years ago over giving physical ability tests to applicants for certain grocery warehouse jobs because the tests made it harder for women to get the positions. (Although I bet a trans woman would be great at those jobs? Still, one senses we’re using a broad brush here, and not one designed to discover nuance or hypocrisy).

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.”

I feel that’s drawing a false distinction. It’s like if I put up a sign that says “no Blacks or Irish,” and that has a statistical impact on the number of guests at my hotel, was the sign “explicit and intentional discrimination” prohibited by the Civil Rights Act, or did it merely have a disparate-impact? I would argue that the intent and outcomes are similar.

Here’s a nasty little detail.

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.

Imagine them going and finding a lawyer and filing that lawsuit. What a bitter bunch of men they must have been. Trump tried to get rid of disparate-impact rules in the final days of his last term through a formal rule-making process, but President Joe Biden scotched it. This time around Mr.Trump has evidently lost patience with rule-making processes and decided to issue an executive order.

The order, titled “Restoring Equality of Opportunity and Meritocracy,” echoes far-right conservative rhetoric about the country being too focused on its racist history.

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 says.

There are likely to be legal challenges to Mr. Trump’s order, assuming there’s a law firm left that hasn’t kissed the ring. His executive order falsely claimed that the disparate-impact test is “unlawful” and unconstitutional. But it was codified by Congress in 1991, and upheld by the Supreme Court as recently as 2015.

The test has been particularly effective at spotting 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.

The impact of this executive order “cannot be overstated,” said Ms. Rodriguez. The test helps root out discrimination that many people may not realize is constraining their opportunities, she added.

It’s pretty messed up, huh?

Say, is there a story that might cheer me up a bit?

Oh, sure. Speaking of unfairness, read this profile of a club bouncer in Soho👇🏻

If Your Vibe Is Right, He Might Let You Into the Club

Fabrizio Brienza is among New York City’s most experienced gatekeepers, standing watch outside nightclubs and curating the crowd inside.

Thanks for letting me read the newspaper so that you don’t have to!

Matt Davis lives in Manhattan with his wife and kid.

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