A Trump executive order takes a sledgehammer to key civil rights tool

The president exceeded his authority by effectively nullifying a law passed by Congress and ignoring Supreme Court decisions that upheld disparate-impact litigation.

By Austin Sarat

The Trump administration has already done a lot to dismantle longstanding tools of civil rights enforcement in this country. It has mandated the elimination of programs and offices designed to protect the rights of historically marginalized groups, cut about 70% of the staff of the Cvil Rights Division of the Department of Justice, halted civil rights enforcement lawsuits, and worked to weaken or undo the legal protections against various forms of discrimination.

Those actions, as USA Today explained, “could set the Civil Rights Movement back decades.” In fact, the president is using laws intended to prevent discrimination against those who have historically been its targets as a vehicle for channeling white grievance.

His policies cater to white people who think they have been victimized because of their race. Some, as historian Gunther Peck argued, “feel scorned by a liberal ‘establishment’ … [and] yearn for revenge.”

On April 23, the president took new steps to deliver what they yearn for.

He issued the “RESTORING EQUALITY OF OPPORTUNITY AND MERITOCRACY,” executive order, which targeted a key legal device in the struggle for equal rights in the United States. This device, so-called “disparate-impact liability,” allows litigants in civil rights cases to use statistics to show that facially neutral policies produce outcomes that disadvantage Black people, women, or members of other minority groups. It helps ferret out discrimination that is not overt.

The president has again exceeded his authority by effectively nullifying a law passed by Congress and ignoring Supreme Court decisions that have upheld the use of disparate-impact litigation. If it is allowed to stand, his order will make it much harder to deal with many forms of discrimination.

Let me explain why.

Once civil rights laws made clear that it was no longer acceptable to use race, gender, etc., as a decision-making factor to deny minority groups equal opportunity, much discrimination was driven underground. No longer would decision makers make explicit that they would not hire or promote someone because of those attributes.

The Legal Information Institute at Cornell Law School put it clearly: “…when it is contended that a law, which is in effect neutral, has a disproportionately adverse effect upon a racial minority or upon another group particularly entitled to the protection of the Equal Protection Clause, a much more difficult case is presented.”

That’s where disparate-impact litigation comes in.

More than 50 years ago, in Griggs v. Duke Power Co., a unanimous Supreme Court said “disparate impact” could be used to prove racial discrimination. In that case, Black employees at Duke Power sued, citing Title VII of the Civil Rights Act of 1964, to challenge the requirement that job applicants had to have either a high school diploma or pass an intelligence test to get a job at the power plant.

Writing for the court, Chief Justice Warren Burger said that when it passed the Civil Rights Act, “Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation. More than that, Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question.”

In 1991, Congress explicitly added disparate impact to the 1964 Civil Rights Act.

Disparate-impact litigation proceeds in three steps. Those alleging discrimination could present statistics to show the impact of using facially neutral standards on members of minority groups. If the statistics show that those standards disadvantaged them, the burden of proof shifts to the defendant who must offer a legitimate non-discriminatory explanation for those results. If the defendant cannot, the person claiming discrimination prevails.

They did not have to show that the defendant intended the result, only that their actions produced it. Ten years ago, the court affirmed that disparate-impact claims could be used in cases arising under the Fair Housing Act.

But the court said that proving disparate impact should not be easy. As Justice Anthony Kennedy put it, “A disparate-impact claim relying on a statistical disparity must fail if the plaintiff cannot point to a defendant’s policy or policies causing that disparity. A robust causality requirement is important in ensuring that defendants do not resort to the use of racial quotas.”

“Courts,” he said, “must therefore examine with care whether a plaintiff has made out a prima facie showing of disparate impact.” Kennedy cautioned that “Courts should avoid interpreting disparate-impact liability to be so expansive as to inject racial considerations into every … decision. The limitations … are also necessary to protect potential defendants against abusive disparate-impact claims.”

President Donald Trump’s executive order built on Kennedy’s warning, but instead of using it as a limiting principle in disparate-impact cases, he turned it into an excuse for not using this critical tool for vindicating civil rights claims at all.

The order began by stating that “A bedrock principle of the United States is that all citizens are treated equally under the law. This principle guarantees equality of opportunity, not equal outcomes. It promises that people are treated as individuals, not components of a particular race or group. It encourages meritocracy and a colorblind society, not race- or sex-based favoritism.”

Stoking white grievance, the order goes on to claim that “a pernicifous movement endangers this foundational principle, seeking 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.” It calls disparate-impact liability “a key tool of this movement.”

The executive order mischaracterizes that tool by saying that it creates “a near insurmountable presumption of unlawful discrimination exists where there are any differences in outcomes in certain circumstances among different races, sexes, or similar groups, even if there is no facially discriminatory policy or practice or discriminatory intent involved, and even if everyone has an equal opportunity to succeed.”

Trump argues that disparate-impact liability “not only undermines our national values, but also runs contrary to equal protection under the law and, therefore, violates our Constitution.”

His order directs all federal agencies “to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible to avoid violating the Constitution, Federal civil rights laws, and basic American ideals.”

Make no mistake, this is no mere technical argument about which only lawyers should care.

The New York Times got it right when it wrote, “The disparate-impact test has been crucial to enforcing key portions of the landmark Civil Rights Act…. 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.”

Trump’s effort to gut disparate-impact litigation is a serious blow to that act and the promise of equal justice in this country. Lawsuits challenging the order are inevitable, and they will be warranted.

The federal courts should put a stop to the president’s plan.

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.

---