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Rule change would limit some ‘disparate impact’ civil rights cases

It is perhaps the most significant shift in civil rights enforcement in a generation or longer. In a last-minute proposal, the U.S. Department of Justice has proposed a rule change that would change how it enforces Title VI of the Civil Rights Act, which bars recipients of federal funding from discrimination based on race, color and national origin.

Title VI applies to a wide variety of organizations that receive federal funding, including schools, employers, housing programs, hospitals and others.

At issue is discrimination that is not necessarily intentional, but rather has the effect of discriminating against a protected group. Certain policies and actions can seem neutral but have a discriminatory effect. This is referred to as “disparate impact discrimination.”

A classic example of disparate impact discrimination is the Jim Crow-era literacy test for voting. These tests were usually put into place using neutral language that applied to Blacks and whites equally. However, Black people were much more likely to fail the test than white people because Black people had been systematically excluded from schools. Since these seemingly neutral laws had such a profoundly negative effect on Black people, they have generally been considered a form of discrimination.

That could change if the new rule goes into effect. The Justice Department’s position, as of Dec. 21, 2020, when the rule was proposed, is that Congress never meant to make disparate impact discrimination illegal at all. The agency argues that the disparate impact theory involves “a vastly broader scope of conduct” than the Civil Rights Act actually prohibits.

Under the new rule, the Justice Department would remove all regulatory references to policies and practices that have “the effect of” discriminating against protected groups. It would cease to bring enforcement actions in disparate impact cases.

Disparate impact theory is crucial to fighting discrimination

Most civil rights advocates agree that disparate impact discrimination is a real problem in the United States. The theory of disparate impact allows the government and private actors to fight policies and practices that have the effect of discrimination even when the organization involved can’t be proven to have intentionally discriminated.

Disparate impact theory has been useful, for example, in showing that seemingly neutral school policies can result in disproportionate and unfair discipline rates among Black and Latino students. It has also been used to show the true impact of police practices that result in widespread civil rights violations against Black people.

Is disparate impact theory valid?

Most legal scholars agree that it is a valid theory. In fact, the U.S. Supreme Court has repeatedly ruled that policies and practices with a substantial disparate impact against minorities are discriminatory. As recently as 2015, the high court found disparate impact theory to be a crucial tool in civil rights litigation.

The reality is that it can sometimes be hard to prove that a particular policy that has a discriminatory effect was created intentionally in order to have that effect. Yet disparate impacts can be just as profound and negative as intentional discrimination.

If the rule goes into effect, it would represent the Justice Department’s first substantial change in how it defines Title VI discrimination since 1973. Disparate impact theory has been considered a valid legal theory in all the decades since.

If you have experienced discrimination, Leigh Law Group may be able to help you identify the improper policy or practice and take action to stop it.