In an apparent crusade to portray President Donald Trump as a Jim Crow-era racist, The New York Times is now attempting to spin a great victory for civil rights as a setback for fairness and equality.
In its lead story for the Sunday edition on May 11, the Times headline was, “Trump Curtails Legal Tool that Enforces Civil Rights.” The story referred to Trump’s directive to federal agencies, issued late last month, to abandon the use of “disparate-impact liability.”
The Times describes disparate-impact liability as “a core tenet used for decades to enforce the Civil Rights Act of 1964 by determining whether policies disproportionately disadvantage certain groups.” Importantly, however, the words “disparate impact” are nowhere mentioned or entailed by the landmark 1964 law. The term and the legal doctrine were only inserted into the law later through judicial interpretation and Congressional revision, well after 1964.
In practice, disparate-impact liability means that courts, along with agencies like the Equal Employment Opportunity Commission (EEOC), can hold organizations liable for discrimination if their policies have a disproportionately adverse effect on a “protected” group – even if there was no intent to discriminate, and no language in the policy favoring one group over another.
Unlike “disparate treatment” (which involves intentional discrimination), disparate-impact cases center on the effects of policies or practices that are neutral on their face but result in unequal outcomes, The consequence is far more latitude for courts or administrative agencies to insert their own views of how jobs, promotions, and educational opportunities “should” be distributed.
Critics of disparate-impact liability have long observed that it directly violatesthe 1964 Civil Rights Act by mandating that any policy that treats individuals in a colorblind (or sex-blind) fashion, but which results in different outcomes for members of specified racial or ethnic minorities (or women) is inherently invalid. According to “civil rights prosecutors” cited by the Times, “the disparate-impact test is one of their most important tools for uncovering discrimination because it shows how a seemingly neutral policy or law has different outcomes for different demographic groups, revealing inequities.”
In fact, the disparate-impact test does no such thing. As the distinguished economist Thomas Sowell has repeatedly pointed out (most recently in his 2023 book Social Justice Fallacies), use of the test rests on an unstated and indemonstrable premise; namely, that in a just world, equal percentages of members of every race and sex would be found in all occupations, executive positions, and levels of education.
A simple example exposes the most obvious problem with this premise: Does anyone contend that the disproportionate number of African-Americans found on professional basketball and football teams is the consequence of discrimination against whites and Asian-Americans? Additionally, complaints about the “disproportionate” proportion of admittees from certain groups to America’s most prestigious universities were once used to limit the number of Jewish students, and nowadays of Asian-Americans – a practice struck down by the Supreme Court in its 2023 Fair Admissions decision.
Actual examples of the use of disparate-impact tests to prove discrimination cited by the Times are no less absurd. One is an allegation that the use of “criminal background and credit checks” have been found to “affect employment of Black people.” In other words, the Times says, when higher percentages of blacks are found to have serious criminal records or credit deficiencies, it must be because performing background checks in hiring is discriminatory. While individuals with minor criminal records, especially in their youth, certainly should not be excluded from employment, is it unreasonable, let alone unjust, for employers seeking to fill sensitive positions to take such factors into account?
Even worse, disparate-impact theory has been used to challenge school discipline policies that adversely affect members of some groups more than others. This would entail that even if members of those groups tend to violate disciplinary rules more than others, their rate of punishment should be reduced so that it doesn’t exceed that of other students who offend less frequently.
Such a policy would adversely affect the education of allreasonably well-behaved students in a classroom, regardless of their race, by subjecting them to more frequent disruptions. How can this possibly be thought to benefit them (particularly in schools located in poorer neighborhoods, where students are all the more in need of a stable classroom environment) and where instilling a general respect for discipline is all the more necessary?
In another illustration of the supposed need for the use of disparate-impact theory, the Times cites its use by the Justice Department “to identify patterns of police misconduct and other discrimination pervasive in communities of color.”
Here again, one must take account of the undeniable fact that crime rates tend to be higher in poor neighborhoods that are heavily populated by African-Americans. To apply disparate-impact doctrine to crime rates would entail reducing the rate or severity at which black criminals are punished compared with whites and Asians. But many, probably most, black residents of crime-ridden neighborhoods would be the first to complain about insufficient policing of their streets – not too much policing.
Once again, the consequence of disparate-impact principles would seem likely to harmthe very populations (law-abiding Black people) they are supposedly designed to benefit.
Indeed, in a sort of reductio ad absurdum of disparate-impact doctrine, Hennepin County, Minnesota, District Attorney Mary Moriarty apparently ordered selective prosecution of criminal defendants according to race. Her instructions for “Negotiations Policy for Cases Involving Adult Defendants” specify that “racial identity… should be part of the overall analysis” and that prosecutors “should be identifying and addressing racial disparities at decision points, as appropriate.”
In other words, as the New York Post editorialized, Moriarty’s directive sets up “a two-tiered justice system based on skin color, with whites and Asians presumably getting the short end of the stick.” Attorney General Pam Bondi and Justice Department Assistant Attorney General for Civil Rights Harmeet Dhillon have warned Moriarty to abolish this policy, though she has the backing of George Soros and appears determined to continue pursuing it.
But perhaps the most obvious illustration of the absurdity of disparate-impact doctrine cited by the Times is a $20 million settlement by Walmart in 2020 of a case brought against it by the Equal Employment Opportunity Commission for its practice of “giving physical ability tests to applicants for certain grocery warehouse jobs.” The tests ostensibly “made it more difficult for women to get the positions.”
Any rational individual can easily see why women would be less likely to pass a physical test for a warehouse job involving heavy lifting than men would. This statement would have seemed an uncontroversial and obvious fact to every society throughout human history, but is apparently an unacceptable observation to partisans of contemporary gender theory.
But who can seriously maintain that it was unreasonable for Walmart to require all applicants for physically stressful tasks to demonstrate that they had the necessary capacity? If there was no such test, then the warehouse would still have had to assign the heaviest jobs disproportionately to male employees, leaving women who lacked the necessary strength to watch, or assist in less demanding roles, but with the same level of compensation.
The Times notes that Trump’s order “resurrects a last-ditch effort made in the final days of his first term to repeal disparate-impact regulations through a formal rule-making process, which was nixed by the Biden administration” as soon as it took office. But it then attributes Trump’s new order, titled “Restoring Equality of Opportunity and Meritocracy” to the influence of “far-right conservatives who say that the country has become too focused on its racist history, and that protections from the civil rights era have led to reverse racism against nonminority groups.”
The order itself identifies the disparate-impact doctrine as a “pernicious” instrument that aims to “transform America’s promise of equal opportunity into a divisive pursuit of results preordained by irrelevant immutable characteristics, regardless of individual strengths, effort, or achievement.” (For a detailed account of how political lobbying has gradually altered the listing of groups that qualified for special treatment, see law professor David Bernstein’s 2023 book Classified: The Untold Story of Racial Classification in America.)
In order to demonstrate the need for disparate-impact liability, the Times is compelled to go all the way back to the start of the Jim Crow era, shortly after the Civil War ended, when some Southern states (as is widely known) instituted “literacy tests” as a qualification for voting. The content and mode of the administration of these tests were used dishonestly to deny blacks the right to vote, in direct violation of the 15th Amendment.
These practices, where they still existed, were effectively banned by the 1965 Voting Rights Act. Given the large number of black officeholders at all levels of government since that time (including President Barack Obama), and the heavy dependence of the Democratic Party in particular on appeals to black voters (though the latter trend is shifting, as blacks reject some of the radical “cultural” policies espoused by Democrats, and are appreciative of the record lows that black unemployment reached under the first Trump administration), does anyone seriously contend that discrimination against black voters is a problem today?
In 1964, one of the lead sponsors of the Civil Rights Act (which passed Congress with a greater proportion of Republicans than Democrats voting for it in each chamber), Minnesota Senator Hubert Humphrey, the bill’s floor manager, promised to “eat my hat if this [Act] leads to racial quotas.” Doubtless the vast majority of members of both houses understood that the law was designed to protect individuals from unjust discrimination, not to guarantee them specific proportions of jobs or school placements, let alone immunity for criminal penalties or violation of school discipline, just on account of their race or sex. The 1964 Act was intended both to secure justice and to promote harmony among Americans of all racial and ethnic backgrounds (as well as both sexes).
Admittedly, in 1991 Congress complicated the issue by modifying the Civil Rights Act to specify that once a plaintiff establishes the existence of disparate impact from an employment practice, the burden of proof shifts to the employer to prove that such practice is “job-related for the position in question and consistent with business necessity.” This change thus codified the disparate-impact doctrine that the Supreme Court had unwisely adopted in the 1971 case of Griggs v. Duke Power Co., which invalidated the requirement of a high school diploma for certain positions, even though the Company offered to finance the pursuit of such a diploma by applicants who lacked it.
But in subsequent cases, such as its decision in the 2009 case of Ricci v. Stefano, the Court itself pulled back on the random use of disparate-impact theory. In that case, the Court found that New Haven had violated the rights of white and Hispanic applicants for firefighting positions by throwing out the results of a nondiscriminatory test just because black applicants performed worse on the test. And again, it was absurd for the EEOC to compel Walmart to abolish use of a test of physical ability that was clearly relevant to the positions it was seeking to fill.
In overturning the use of disparate-impact tests by federal agencies, the Trump administration has acted to restore the 1964 Civil Rights Act to its original, noble purpose. Should the administration’s action be challenged in court, there is every reason to hope that the Supreme Court will uphold it, both to conform to the text of the 14th Amendment and in order to promote the common good.
Thomas Sowell is one of numerous thoughtful African-American social scientists and journalists to point out how the real effects of disparate-action doctrine and other ostensibly “positive” forms of race-based discrimination are harmful to the supposedly favored minority-members themselves. As he argues, it causes everyone to doubt the real credentials and achievements of those many minority individuals who achieved success without any such favoritism.
Far from promoting racial harmony, disparate-impact liability encourages resentment among those, like the New Haven firefighters, who understandably feel victimized by it.
David Lewis Schaefer is a Professor Emeritus of Political Science at College of the Holy Cross.
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