Progressive identity politics is in retreat after resounding defeats in court and at the ballot box. But if a future Democratic administration wants to recommit to woke politics, it will still have many tools at its disposal. One of them is the legal doctrine of “disparate impact,” which encourages companies, universities and state and local governments to fixate on race and ethnicity to a fault. Attorney General Pam Bondi has chipped away at the doctrine with revised regulatory guidance this week, and other departments can follow her lead.
The Civil Rights Act of 1964 is aimed at intentional discrimination. The concept of disparate impact stretches that idea to the point of incoherence. It says that different average outcomes among groups — even if there was no intent to discriminate — can still be a civil rights violation. Institutions that receive Justice Department grants have been regulated according to this standard, prohibited from doing anything that has the “effect” of creating disparities between groups.
Not anymore. As Bondi explains, the old standard subjected grant recipients to penalties under Title VI of the Civil Rights Act for “unintentional disparate outcomes, which the recipient may not even know about without investigation.” The regulations created an incentive for institutions to tally and classify their students or employees — Black, White, Mexican, Chinese, Jewish and so on — to avoid numerical imbalances that could trigger liability.
The regulations also authorized grant recipients to take “affirmative action” — that is, impose racial or ethnic preferences — “to overcome the effects” of unequal conditions. In some circumstances, those preferences were mandated. The result of this vague regime, combined with the Civil Rights Act’s prohibition on intentional discrimination, was that “the law seems to both forbid and require the same conduct,” as Bondi put it.
The regulatory rollback follows President Donald Trump’s April executive order targeting this practice. It will reduce compliance costs for institutions such as police departments, universities and law-oriented nonprofits.
Claims that these revisions somehow authorize discrimination are bogus. They do the opposite. Purposely treating one group differently than another remains illegal, as it should. And Bondi’s memo notes that “eliminating disparate-impact liability does not preclude the use of data on disparate outcomes to help prove intentional discrimination.”
Intent matters. Otherwise the federal government has a free-floating license to zealously police the racial composition of private institutions. Some of the Trump administration’s anti-woke agenda has been irresponsible, but this is a reasonable correction to past overreach. Bondi’s memo is a model for other disparate impact provisions across the federal code to be identified and repealed.
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