Ad­min­is­tra­tion seeks re­view of civil rights rules

The Mercury News Weekend - - NEWS - By Laura Meckler and Devlin Bar­rett The Washington Post

WASHINGTON » The Trump ad­min­is­tra­tion is con­sid­er­ing a far-reach­ing roll­back of civil rights law that would di­lute fed­eral rules against dis­crim­i­na­tion in ed­u­ca­tion, hous­ing and other as­pects of Amer­i­can life, peo­ple fa­mil­iar with the dis­cus­sions said.

A re­cent in­ter­nal Jus­tice Depart­ment memo di­rected se­nior civil rights of­fi­cials to ex­am­ine how decades- old “dis­parate im­pact” reg­u­la­tions might be changed or re­moved in their ar­eas of ex­per­tise, and what the im­pact might be, ac­cord­ing to peo­ple fa­mil­iar with the mat­ter. Sim­i­lar ac­tion is be­ing con­sid­ered at the Ed­u­ca­tion Depart­ment and is un­der­way at the Depart­ment of Hous­ing and Ur­ban Devel­op­ment.

Un­der the con­cept of dis­parate im­pact, ac­tions can amount to dis­crim­i­na­tion if they have an un­even ef­fect even if that was not the in­tent, and rolling back this ap­proach has been a long­time goal of con­ser­va­tive le­gal thinkers. Past Repub­li­can ad­min­is­tra­tions have done lit­tle to erode the con­cept’s ap­pli­ca­tion, partly out of con­cerns that the Supreme Court might dis­agree, or that such changes would be un­pop­u­lar and viewed as racist.

“Dis­parate im­pact is a be­drock prin­ci­ple,” said Kris­ten Clarke, pres­i­dent and ex­ec­u­tive di­rec­tor of the Lawyers’ Com­mit­tee for Civil Rights Un­der Law. “Through the courts, we’ve been able to mar­shal data and use the dis­parate-im­pact doc­trine as a ro­bust tool for fer­ret­ing out dis­crim­i­na­tion.”

In New York, a law­suit al­leges that a large apart­ment com­plex in Queens will not rent to any­one with a crim­i­nal record, and that this has the ef­fect of dis­crim­i­nat­ing against African- Amer­i­can and Latino renters. The suit is pend­ing, re­ly­ing on dis­parate im­pact to make the case.

In Mary­land, civil rights groups com­plained to the fed­eral gov­ern­ment af­ter the state shifted trans­porta­tion money from a ligh­trail project that would have helped mostly African-Amer­i­can res­i­dents of Bal­ti­more. The money in­stead went to bridge and road projects that served mostly white res­i­dents else­where in the state. A Trans­porta­tion Depart­ment in­ves­ti­ga­tion into the mat­ter was closed this sum­mer.

In ed­u­ca­tion, the Obama ad­min­is­tra­tion reached set­tle­ments with school sys­tems such as the one in Lodi, where an in­ves­ti­ga­tion found wide­spread dis­par­i­ties in stu­dent dis­ci­pline.

African-Amer­i­can stu­dents, for in­stance, were five times as likely as white peers to re­ceive out- of-school sus­pen­sions for will­ful de­fi­ance or dis­rup­tion.

In 2014, the Obama ad­min­is­tra­tion for­mally ad­vised school sys­tems they may be guilty of racial dis­crim­i­na­tion if stu­dents of color are pun­ished at higher rates.

When in­ves­ti­ga­tors and courts in­cor­po­rate dis­parate im­pact in a re­view, they are look­ing at more than the in­tent of laws or prac­tices. They are also eval­u­at­ing whether a pol­icy’s im­pact varies based on race, eth­nic­ity or other fac­tors.

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