The End of Disparate Impact Language

The Trump administration has been crossing out rules about "disparate impact" all across federal agencies. The language was axed in the Department of Education back in July, and while the change was covered in some media and greeted with appropriate complaints from a host of civil rights groups, lots of folks sort of napped through the whole business, even as the DOJ threw out fifty desegregation cases involving schools.

So let's take a second to talk about disparate impact and why anyone should care that the feds no longer pay any attention to it.

The principle of disparate impact starts with the understanding that 1) not all discrimination is intentional and 2) not all intentional discrimination is announced as such.

Disparate impact allows us to bypass an argument about whether or not someone in charge had prejudice in his heart which he deliberately enacted through policy. 

For the last several decades, everyone has understood that you cannot write down in official policy, "We will not hire Black people." But if you have hired 100 people in the last six months and 50% of the applicants were women and 0% of the actual hires were women, there is reason to suspect that perhaps your organization has a civil rights problem.

In education, a common disparate impact argument has centered on discipline, the argument being that if Black students composed 20% of your student body and 90% of your discipline referrals, maybe something is going on. 

The effect of the principle of disparate impact is that many employers and schools have been super-careful because they're afraid they might be doing a racism without even trying. The principle of disparate impact has launched thousands of implicit bias PD sessions and made folks examine more carefully how they might be discriminating without even meaning to. 

But that same effect makes reactionary snowflakes sad. You can't just let every discriminatory thought fall out of your mouth without someone making a fuss! Even Supreme Court Justices aren't immune; “You can’t say that marriage is a union between one man and one woman,” Sam Alito said at a Federalist Society event in 2020. “Until recently, that’s what the vast majority of Americans thought. Now, it’s considered bigotry.”

So for MAGA, already accepting the premise that white men are the most oppressed and downtrodden group in the country, disparate impact is one more way that they are held down. 

Ther is no doubt that parsing out disparate impact is an inexact art, and there is absolutely no doubt that public schools do not suffer from a shortage of people looking over their shoulder, waiting to catch them doing Something Wrong.

But the loss of the principle of disparate impact means that discrimination can only be called out when some school administrator or staff member is stupid enough to announce, "I am taking this action in order to discriminate against this group of people, a group that I personally hate." It may take a while for some districts or states to feel free enough to start doing terrible things, but they've got at least two years to get comfortable with the idea. In the meantime, families of female or minority or LGBTQ students will have to start looking for another means to protect themselves.