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In late 2020, even as the instigators of insurrection were marshaling their followers to travel to Washington, D.C., another kind of coup—a quieter one—was in the works. On December 21, in one of his departing acts as attorney general, Bill Barr submitted a proposed rule change to the White House. The change would eliminate the venerable standard used by the Justice Department to handle discrimination cases, known as “disparate impact.” The memo was quickly overshadowed by the events of January 6, and, in the chaotic final days of Donald Trump’s presidency, it was never implemented. But Barr’s proposal represented perhaps the most aggressive step the administration took in its effort to dismantle existing civil-rights law. Should Trump return to power, he would surely attempt to see the effort through.
Since the legislative victories of the civil-rights movement in the 1960s, legal and civil rights for people on the margins have tended to expand. The Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968 were followed by voting provisions for Indigenous people and non-English speakers, a Supreme Court guarantee of the right to abortion, increased protections for people with disabilities, and formal recognition of same-sex marriage. The trend mostly continued under presidents of both parties—until Trump. Though his administration could be bumbling, the president’s actions matched his rhetoric when it came to eroding civil-rights enforcement.
Under Trump, the Justice Department abandoned its active protection of voting rights. The Environmental Protection Agency ignored civil-rights complaints. The Department of Housing and Urban Development scaled back investigations into housing discrimination. Trump’s appointees to the Supreme Court, for their part, have whittled away at landmark civil-rights legislation and presided over the end of affirmative action.
In a second term, the most effective way for Trump to continue rolling back protections would be to dismantle disparate-impact theory. Under the theory, the federal government can prohibit discriminatory practices not just in instances of malicious and provable bigotry, but also in cases where a party’s actions unintentionally affect a class of marginalized people disproportionately.
The theory is important because discrimination can be perpetuated without ill intent; even seemingly benign or neutral policies can perpetuate a legacy of bias, or create new inequities. But disparate impact is also essential because landlords, business owners, and municipal officials who do wish to discriminate have learned how to operate without expressing overt bigotry. Under disparate impact, the government’s burden is not to prove that these actors intended to discriminate, only that their actions resulted in discrimination.
For decades, lawyers have invoked disparate impact as a means of fighting discrimination. The standard has been applied across the federal government. After the housing crisis of 2008, the DOJ brought a series of lawsuits against banks that had charged higher mortgage rates and fees to minority borrowers, winning hundreds of millions of dollars in settlements from the lenders. In 2015, the DOJ released a damning report on the practices of the police department in Ferguson, Missouri, after an 18-year-old Black man, Michael Brown, was shot and killed by a police officer. Disparate impact was mentioned at least 30 times in the report, including in its main takeaway: “African Americans experience disparate impact in nearly every aspect of Ferguson’s law enforcement system.”
Many conservatives have long been suspicious of disparate impact. The most principled objections center on the claims that it invites government overreach and inefficiency, that it impedes state and local policy development, and that it always entails some degree of ghost-chasing—in a country as unequal as America, discerning what exactly contributes to a disparate outcome can be difficult.
But these philosophical and practical objections to the theory have always served to disguise a more visceral disdain. Many conservatives simply believe that ensuring equality is not a legitimate federal priority. In the Trump era, as the Republican Party has embraced white nationalism, its leaders have been emboldened to abandon the guise. They edge closer to the line once held by the architects of Jim Crow: Equality is undesirable because people are not equals; some of us might not even be people.
Trump himself has always had a preternatural gift for identifying and channeling grievance; white backlash against civil-rights legislation was one of the major forces behind his advancement to the presidency, and that backlash can be traced directly to disdain for civil-rights legislation and enforcement. Once Trump was in office, one of his early targets was HUD. In 2020, the department finalized a rule that demolished its discriminatory-effect standard, which had been the basis for enforcement at the department for at least 40 years. Trump’s HUD secretary, Ben Carson, said that the move would spur efficiency at the local level without undermining the department’s antidiscrimination work. But Carson has long been a skeptic of desegregation; during his 2016 presidential campaign, he described desegregation efforts in cities as “failed socialist experiments.” Ultimately, Carson’s attempt to undermine the discrimination standard was stymied by lawsuits. But the cause of fighting bias suffered nevertheless. In 2020, at the end of Carson’s tenure, the number of secretary-initiated complaints had gone from several dozen in 2015 to three.
Trump did serious damage to disparate impact as president; there’s little question that he would finish the job if given another chance. A second Trump administration could go beyond simply abandoning the theory, perhaps even bringing lawsuits seeking to declare the entire concept unconstitutional. Trump could thus attack civil-rights law from both sides, sabotaging the government’s capability to adjudicate cases while also arguing that it should not have that capability in the first place. If this two-pronged strategy succeeds, it will be difficult for any future administration to undo the changes. With today’s conservative-dominated judiciary and high levels of political polarization, any substantive changes Trump makes to civil-rights enforcement could effectively become permanent.
Without disparate impact, the DOJ would lose its primary tool for addressing brutality in police departments, and current efforts to finally enforce environmental laws in communities of color and hold cities accountable for creating slums in Black and Latino neighborhoods would be stalled. Given the damage that has already been done by the courts, there is a future—perhaps a likely future—in which the remaining foundations of the civil-rights era are undone. If Trump were to win in 2024, he would see the victory as a mandate to tear everything down now.
This article appears in the January/February 2024 print edition with the headline “Civil Rights Undone.”
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Vann R. Newkirk II
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