When the government runs or funds programs, those programs are obligated to ensure that everyone gets equal access and treatment. This duty comes from something called “disparate impact regulations.” These regulations require the programs to pay careful attention to whether their policies cause racial disparities.
From my perspective as a scholar of discrimination law, abandoning these regulations would be a major departure from the federal government’s mission since the 1960s of ensuring racial equality.
In the 1950s and 60s, civil rights advocates challenged racial segregation and inequality in every facet of public life – from schools, buses and bathrooms to employment, housing and restaurants. Congress passed the Civil Rights Act of 1964 to stamp out as much of that discrimination as possible, prohibiting discrimination in all those areas and more.
But Congress went beyond just prohibiting “discrimination.” It recognized that prohibiting policies with obvious or explicit intent to discriminate was not enough to ensure equality.
Following Congress’s lead, the Department of Justice concluded in a 1966 report that policies that impact one racial group more than another should also be prohibited. Numerous other agencies agreed and put in place what we now call “disparate impact regulations.”
The fact that some policy or practice disproportionately affects a racial group does not alone violate the regulations. The disparity, if serious enough, simply triggers further investigation by a federal agency. That investigation involves two key additional questions.
First, does the program have a good reason, or “legitimate justification,” for the policy that is causing the racial disparities? If not, the agency can block the policy because the disparities are unjustified.
But if the program has a good reason, which it often does, the second question is: Can an alternative policy achieve the program’s goals without producing egregious racial disparities? If so, the program should pursue the less discriminatory alternative because the disparities are clearly unnecessary.
These regulations alleviate the need to dig into individuals’ minds and search for very difficult to prove racial motives. These regulations, like in decades past, further racial equality by asking that officials justify disparities and pursue alternative policies when possible.
For instance, a 2014 report from the U.S. Department of Education found that schools were suspending and expelling African-Americans more than three times as often as white students. Most of the time it was for minor misbehavior. While racial bias often plays a role in these disparities, federal agencies focused on the negative long-term consequences of school exclusion – consequences that are unnecessary.
The Department of Education asked districts, when possible, to pursue alternatives that would bring down disparities and still maintain school order. This could include programs that prevent misbehavior before it occurs – like student behavioral supports and staff training. Schools that implemented those alternatives saw misbehavior and school exclusion drop, and saw academic achievement increase. Agencies’ ability to push this change rested solely on the power given to them by disparate impact regulations.
Critics, including the Trump administration, claim that disparate impact regulations impose an undue burden on federally funded programs. They say the regulations force programs to focus too much on analyzing data and avoiding statistical anomalies. Implicit in this claim is that racial discrimination and inequality are no longer widespread problems.
But disparate impact was never just about data, and discrimination was never fully eliminated. To the contrary, data shows discrimination has not declined in the past 25 years.
Given the evolution of discrimination and the persistence of gross racial inequities, these regulations remain as important today as ever.