Recent actions by the Trump administration have signaled a potential cutting back of certain civil rights protections, otherwise known as “disparate impact” regulations, according to the Washington Post. The use of disparate impact focuses on the discriminatory effects of a policy rather than discriminatory intent. Through this concept, should a policy have an uneven effect which marginalizes specific groups, then it is considered to be discrimination.
As civil rights officials in the Justice Department have been instructed to examine any change or removal of these regulations, many are concerned about the potential effects that new regulations might bring. Although disparate impact is included in Title VI of the 1964 Civil Rights Act, its use could be changed through the rewriting of regulations.
Much — but not all — of the disparate-impact law could be changed by the administration because the concept was incorporated through regulations, which administrations are free to change by following a formal process.
In recent years, the regulation has been used to identify potential discrimination in housing policies on renting to individuals with criminal records in Queens, disproportionately affecting African Americans and Latinos. Other cases include transportation funding in Baltimore as well as school punishment policies in California.
A rollback of this measure may affect the protection of marginalized groups but falls in line with the argument by conservatives that there should be proof of discriminatory intent in order to knock down certain policies. Although conservatives such as Roger Clegg continue to support any change to disparate impact, organizations like the NAACP nonetheless disagree.
“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.”
--Ajmel Quereshi, senior counsel with the NAACP Legal Defense Fund.