After years of conservative complaints, the Justice Department moved Tuesday to kill a decades-old provision of civil rights law that allows statistical disparities to be used as proof of racial discrimination.
The new regulations reinterpret a key plank of the Civil Rights Act and were issued without an opportunity for public comment, which is unusual for major regulatory action. The rules are final and will take effect Wednesday. While they apply only to Justice Department programs, the administration has made clear that it plans similar regulatory rollbacks across the government.
Under regulations written in the years after the Civil Rights Act became law in 1964, government and private-sector policies could be deemed as discriminatory even if that was not the intent using a data analysis tool called “disparate impact.” That allowed for investigations and discrimination lawsuits when policies impacted people of different races differently, even if that was not the goal.
The Trump administration had already stopped using this analysis and has been unraveling casesbrought under past administrations that depended on it. By rewriting the underlying regulations, the Justice Department is bolstering its legal position and making it harder for a future administration to change the policy back.
Conservatives have long argued that proving discrimination should require proof that someone intended to treat people differently. And they say that when people are being judged by data, they feel pressure to make decisions based on racial quotas. In that way, the Trump administration argues, a policy meant to fight discrimination is actually fostering it.
“This Department of Justice is eliminating its regulations that for far too long required recipients of federal funding to make decisions based on race,” Attorney General Pam Bondi said in a statement.
Supporters of disparate impact analysis say it is a critical tool because finding “smoking gun” evidence to prove someone intended to discriminate is difficult. And even if the intention wasn’t to discriminate, advocates say institutions should be held accountable for discriminatory effects.
Disparate impact analysis has been used to investigate banks for discouraging people of color from applying for loans, by the Education Department to assure Black, Hispanic and Native American students are not being disciplined at higher rates, and by the Justice Department examining alleged racial discrimination in police departments.
“How is it good government and responsive to the people when the attorney general eliminates an important civil rights tool that has been used to root out discrimination for nearly 60 years and does so without public comment?” said Christine Stoneman, former chief of the Justice Department’s Federal Coordination and Compliance section in the Civil Rights Division. “It is unnecessary and it is harmful.”
Stoneman was one of 200 former Justice Department civil rights attorneys who signed an open letter Tuesday accusing the Trump administration of destroying the work and mission of the division.
Michael Pillera, another veteran federal civil rights attorney, also was dismayed.
“I think this is another example of the administration’s lawless approach to disregarding precedent and just decreeing what they want to exist,” said Pillera, who worked for a decade at the Education Department’s Office for Civil Rights before becoming director of the Educational Opportunities Project at the Lawyers’ Committee for Civil Rights. “They’re upending regulations that have been there for five decades on the assertion they’ve been unlawful the whole time, which is hard to buy into.”
Federal agencies typically would allow time for public comment before publishing a final rule like this. Asked about the decision, Justice Department spokeswoman Natalie Baldassare pointed to the regulation, which cited a provision in the Administrative Procedures Act that allows a final rule to be published without prior public notice or comment if it relates to federal loans, grants and contracts.
Even as the administration rejects the idea that data can prove discrimination in certain cases, it is making new efforts to obtain race-based data from colleges and universities. In April, President Donald Trump ordered the Education Department to collect admissions data, including the grades and test scores of applicants and admitted students, broken down by race.
The administration’s goal, officials said then, is to ensure that schools are not giving preferences in admissions based on race, which the Supreme Court barred in 2023 in a case known as Students for Fair Admissions vs. Harvard University.
Baldassarre declined to comment on whether the government would use that data for some sort of disparate impact analysis.
Without that type of analysis, such data could not be used to prove discrimination on its own, experts said. Dan Morenoff, executive director of the American Civil Rights Project, a conservative public interest law firm, said the administration might simply use the data to indicate where more investigation is needed.
“That would be the most generous reading of how these things are consistent,” he said. He said he supports the new regulation and hopes that the administration is consistent in applying it.
The regulations eliminating disparate impact analysis will affect Title VI of the Civil Rights Act, which bars discrimination on the basis of race, color or national origin in programs receiving federal funding. Tuesday’s action only affects Justice Department programs, but that agency sets legal guidance for the entire federal government, and other agencies have already announced that they will undertake similar regulatory efforts.
The legal standard around disparate impact analysis dates back to Griggs v. Duke Power, a landmark 1971 Supreme Court decision that became a staple of civil rights litigation. In that case, attorneys relied on statistical evidence to show how standardized testing prevented Black employees in North Carolina from advancing at the energy company.
The legal theory has been consistently recognized by the Supreme Court, written into federal regulations and enshrined into employment law by Congress. But in a 2015 housing case, the high court upheld the theory by a narrow 5-4 vote, in an opinion written by Justice Anthony M. Kennedy, who is now retired. Some conservatives have predicted that the new, more conservative court might decide the same matter differently.
In April, Trump declared the use of disparate analysis unconstitutional and issued an executive orderthat kicked off an intense review of civil rights regulations, enforcement actions and settled cases.
Conservatives welcomed Tuesday’s move as overdue.
“This is the sweeping elimination of disparate impact that conservative lawyers have been pushing for over the last quarter century,” said Kenneth L. Marcus, who headed the Education Department’s Office for Civil Rights during both George W. Bush’s administration and Trump’s first term, and is now chairman and CEO of the Louis D. Brandeis Center for Human Rights Under Law. “This new rule is the most forceful push for color-blind justice since the Supreme Court’s Harvard decision.”
Perry Stein contributed to this report.
The post Justice Dept. kills long-time tool used to prove racial discrimination appeared first on Washington Post.
