WASHINGTON – The Trump administration launched an offer in the eleventh hour to reverse some civil rights protections for people of color that a draft document suggests could affect women, people with disabilities and LGBT people in an amendment that would be one of the most significant Changes in the enforcement of civil rights for generations.
The Justice Department has submitted an enforcement amendment to Title VI of the Civil Rights Act to the White House for approval that prohibits recipients of federal funds from discriminating based on race, color, or national origin. The regulation covers housing programs, employers, schools, hospitals and other organizations and programs.
As part of the change, the division would continue to closely enforce the protection of the law when it could demonstrate willful discrimination, but no longer in cases of questionable policy or practice that have “different effects” on protected groups.
Civil rights groups say the Disparate Impact Rule is one of their most important tools for highlighting discrimination, as it takes into account patterns of behavior that may appear neutral and compares the results for different groups to reveal inequalities. Such cases constitute most of the discrimination disputes, as companies and organizations rarely disclose that they are deliberately engaged in the practice.
The Justice Department argued, however, that its current approach to enforcing civil rights protection, according to a copy of its draft proposal to amend the regulations received from the New York Times, included “a far wider margin of maneuver” than the law itself prohibits. The most fundamental changes to the rule would remove references to policies and practices that “have the effect” of exposing individuals to discrimination.
The move is the latest in the Trump administration’s efforts to roll back civil rights protection. It has cut other regulations, reversed positive action policies, and cut state diversity training. The Justice Department’s efforts also coincide with a decade-long project by the conservative right-wing movement to roll back civil rights protection that is seen as going beyond the law.
The Justice Department tacitly filed the amendment with the White House Bureau of Administration and Budget on December 21, making it one of the final acts of former Attorney General William Barr. Language has not been made available for public review or commentary, as is normally required under the federal legislative process, and an exception has been made for matters related to agency loans, grants and contracts as the rule covers organizations that receive federal funding.
Should the revised language be introduced, as the White House expects, progressive rights groups are likely to challenge it and initiate a possible review by a Supreme Court with a Conservative majority believed to be against the protection of civil rights. The incoming Biden administration was unable to immediately reverse the move, but a new attorney general could delay its decree.
A Justice Department spokeswoman did not immediately respond to a request for comment.
A common example of differential impact was the Jim Crow era literacy tests that some states created as a requirement for voting. The tests didn’t ask about the race, so they looked neutral on her face. But they disproportionately prevented blacks from voting because they had been forced out of school for a long time and could not read. The tests are generally seen as discriminatory as they have different effects on blacks.
More recently, protection from disparate effects has been critical to the Department of Education’s investigation into disproportionate disciplinary rates among Black and Latin American students in schools. It enabled the department’s civil rights bureau to “review guidelines and consider harmful results,” said Shiwali Patel, senior lawyer for the National Center for Women’s Rights who served in the office during the Obama and Trump administrations.
In several cases, the office found that schools disciplined students differently depending on their race.
Last fall, the Ministry of Housing and Urban Development passed a ruling that would have weakened anti-discrimination policies regulating the mortgage industry.
The move led to an extremely unusual request from the country’s four largest banks – which would benefit from the proposed changes – that the department fail to rewrite the requirements. The federal government “should recognize that Americans’ attention to racial discrimination is more pronounced and expansive,” wrote Michael DeVito, executive vice president of home loans at Wells Fargo, in a letter to housing secretary Ben Carson.
Civil rights lawyers sued the department, and in October a Massachusetts federal judge issued a statewide injunction against the rule, which he believed was arbitrary and capricious.
“These significant changes, which risk effectively neutralizing the differential liability for effects under the Fair Housing Act, appear inadequately justified,” wrote Judge Mark Mastroianni.
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