Trump to pare back rights for minorities
WASHINGTON — The Trump administration has embarked on an eleventh-hour bid to undo some civil rights protections for minority groups, women, people with disabilities and LGBT people, according to a draft document, in a change that would mark one of the most significant shifts in civil rights enforcement in generations.
The Justice Department has submitted for White House approval a change to how it enforces Title VI of the Civil Rights Act, which prohibits recipients of federal funding from discriminating based on race, color or national origin. The regulation covers housing programs, employers, schools, hospitals, and other organizations and programs.
Under the change, the department would continue to narrowly enforce the law’s protections in cases where it could prove intentional discrimination, but no longer in instances where a policy or practice at issue had a “disparate impact” on minority or other groups.
Civil rights groups say that the disparate impact rule is one of their most important tools for showing discrimination because it takes into account patterns of behavior that can seem neutral and compare outcomes for different groups to reveal inequities. Such cases make up most discrimination litigation, as businesses and organizations rarely disclose that they are purposefully engaging in the practice.
But the Justice Department argued that its current approach to enforcing civil rights protections addressed “a vastly broader scope of conduct” than the statute itself prohibits, according to a copy of its draft proposal to amend the regulations obtained by the New York Times. The most substantial amendments to the rule would eliminate references to policies and practices having “the effect of ” subjecting individuals to discrimination.
The move is the latest in the Trump administration’s efforts to pare back civil rights protections for minority and other groups. It has curtailed other regulations, reversed affirmative action policies and cut government diversity training. The Justice Department effort also dovetails with a decadeslong project in the conservative legal movement to push back on civil rights protections seen as going beyond the law.
The Justice Department quietly submitted the change to the White House Office of Management and Budget on Dec. 21, making it one of former Attorney General William Barr’s final acts. It did not make the language available for public review or comment, as is typically required in the federal rule-making process, citing an exception for matters related to agency loans, grants and contracts because the rule covers organizations that receive federal funding.
Should the revised language be put in place, as the White House is expected to do, progressive legal groups are likely to challenge it, setting up a potential review by a Supreme Court with a conservative majority seen as hostile to civil rights protections. The incoming Biden administration could not immediately reverse the move, but a new attorney general could put its implementation on hold.
A Justice Department spokeswoman did not immediately respond to a request for comment.
Recently, the protections against disparate impact were crucial to Education Department investigations into disproportionate discipline rates among Black and Latino students in schools. It allowed the department’s Office for Civil Rights to “look at policies and take into account harmful outcomes,” said Shiwali Patel, senior counsel for the National Women’s Law Center, who worked in the office during the Obama and Trump administrations.
In several cases, the office found that schools were disciplining students differently by race.
Last fall, the Department of
Housing and Urban Development completed a rule that would have weakened anti-discrimination policies regulating the mortgage industry.
The move drew a highly unusual request from the country’s four biggest banks — which would benefit from the proposed changes — that the department avoid rewriting the requirements. The federal government “should acknowledge that Americans’ attention to racial discrimination is more pronounced and expansive,” Michael Devito, Wells Fargo’s executive vice president for home lending, wrote in a letter to the housing secretary, Ben Carson.
Civil rights lawyers sued the department, and in October, a federal judge in Massachusetts issued a nationwide injunction on the rule, finding it arbitrary and capricious.
“These significant alterations, which run the risk of effectively neutering disparate impact liability under the Fair Housing Act, appear inadequately justified,” Judge Mark Mastroianni wrote.