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The Trump administration’s attack on diversity, equity and inclusion rules and programs has been remarkably successful — and this week, his Justice Department took it to the next level.
Corporations, colleges and universities, state and federal agencies and others have revised or eliminated these polarizing, unlawful policies thanks to President Trump’s executive orders.
More in-depth rules are likely on the way.
But another area of law needs targeting just as robustly: disparate-impact liability.
It isn’t as widely known as DEI, but disparate-impact liability has had catastrophic effects on American life and law.
This gravely flawed legal doctrine has allowed advocacy groups and bureaucrats to impose race-based policies on our public and private lives without any evidence of actual racial discrimination.
It’s unconstitutional and unfair.
Here’s an example of how this legal doctrine works in the real world.
The fire department of Durham, NC, made all applicants take a written exam to determine their ability to comprehend entry-level firefighting material.
But activists claimed the exam had a “disparate impact” on African American test takers, because black applicants on average scored lower on the test than members of other racial groups.
The Biden administration sued Durham — claiming that while the test was race-neutral, it didn’t create the right racial mix for new firefighters.
City leaders caved.
They agreed to abandon the test, to retroactively hire 16 black applicants and to pay $980,000 in damages to others.
On Wednesday, the Justice Department dismissed that case, along with three others the Biden administration had filed against police and fire departments in Maryland, Georgia and Indiana — freeing Durham and other municipalities to reinstate race-neutral merit requirements.
New York City has seen similar attacks on merit.
When some 5,000 black and Hispanic applicants flunked a teacher’s certification exam that most white and Asian test takers passed, the once-aspiring teachers sued.
Their lawsuit alleging that the exam had a disparate impact on them cost NYC $1.8 billion in damages.
Now the Trump administration has an opportunity to deliver a decisive about-face to this unconstitutional overreach and end disparate-impact liability for good under Title VI of the Civil Rights Act.
The Supreme Court has already cast serious doubt on the disparate-impact concept, making it clear that Title VI only bars disparate treatment, not impact.
That means Congress never intended to create a legal regime where race-neutral policies are struck down simply because they result in different outcomes for different racial groups.
As far back as 2009, in their ruling on Ricci v. DeStefano, Justices Antonin Scalia and Anthony Kennedy recognized the troubling constitutional concerns raised by disparate-impact liability, a relic of an era when progressive lawyers twisted civil-rights laws into tools for racial engineering.
That era should end now.
To dismantle this unconstitutional policy once and for all, Trump should issue an executive order revoking previous presidential approvals of disparate-impact regulations.
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This would sever the rules from their legal foundation and force the courts to strike them down.
Opponents will sue to block such an order — but if the administration moves fast enough, it can set the stage for a Supreme Court ruling by 2028, ensuring the defenders of this doctrine can’t resurrect these regulations under a new administration.
Moreover, the Justice Department can issue an interim final rule repealing disparate-impact provisions from its regulations, fast-tracking the process while still allowing for the public to participate in the “notice and comment” timetable.
The administration can also strategically withdraw from other current disparate-impact enforcement actions, undermining the legitimacy of these cases and forcing courts to reevaluate their foundations.
This would mean abandoning existing Justice Department lawsuits against employers and landlords for using such mechanisms as criminal-background checks and standardized tests — practices that are facially neutral and essential for public safety and business operations.
The fight against disparate-impact liability isn’t just about repealing regulations, but about reforming an entrenched bureaucracy that has used this flawed doctrine to expand its power.
Agencies like the Equal Employment Opportunity Commission and the Consumer Financial Protection Bureau have weaponized disparate impact to enforce racial preferences under the guise of civil rights.
The stakes couldn’t be higher.
Disparate-impact liability has been used to justify race-based hiring, lending and education policies that divide Americans and undermine meritocracy.
The Trump administration must act decisively to ensure the principles of equal treatment under the law endure.
Edward Blum is the founder and president of Students for Fair Admissions and a visiting fellow at the American Enterprise Institute.