Decades-old anti-discrimination protections affecting education, housing, banking and more could be in jeopardy.
According to reporting in The Washington Post, the Trump administration is considering rolling back "disparate impact" regulations, which prevent policies from being enacted if they present an undue burden on minorities or minority communities.
“Look, sometimes officials are unaware of the implicit bias that they harbor or, on the other side, are just sophisticated in the ways in which they try to discriminate against communities,” says Kristen Clarke, president and executive director of the Lawyers Committee for Civil Rights Under Law. “Regardless of what may be brewing in someone's mind or heart, disparate impact has allowed us to really just get to the core of what's at play.”
Clarke says if these protections are taken away, the country “will see the resurgence of discrimination.”
“Whether you're talking about policies in the housing context, voting rights context, education or elsewhere, disparate impact is just central for understanding why it is that some policies harm minority communities more than others,” Clarke (@KristenClarkeJD) tells Here & Now’s Robin Young.
But the move to do away with disparate impact is not new: It’s part of an ongoing pattern by the Trump administration to dismantle civil-rights protections for people of color, Clarke says.
“So this development is significant and one that everyone should pay close attention to,” she says.
On what disparate-impact regulations do
“There are essentially two ways that civil rights lawyers go about establishing whether or not something has a discriminatory effect or impact. First, we can look to see if there's evidence of animus, discriminatory intent — evidence that officials were motivated by ugly, venomous, racial animus when putting in place some policy or practice.
“And the reality is, we live in a world today where we are often without that smoking gun evidence of intent. So disparate impact has proven to be a critical tool for smoking out policies and practices that burden communities of color more than others. And we do that really by digging into the data and over laying it out with race to understand the impact that a policy has in the world.”
On implicit bias and discrimination in education
“In the school-to-prison pipeline context, when we dig into the data, we see a lot of school districts where black and Latino students are punished far more harshly for the same conduct relative to their white peers. Without the ability to look at disparate impact, we'd live in a world where there'd be a lot more rampant discrimination today.”
On the importance of disparate-impact regulations in the housing sector
“This is where the administration has focused its efforts. They're attempting to roll back [the U.S. Department of Housing and Urban Development’s] disparate-impact regulation. We live in a world sadly, where communities remain racially segregated and where we see a lot of ugly housing discrimination, and HUD has been critical in the fight to push back against the policies of housing providers, landlords and others that continue to discriminate against minority communities. And disparate impact — understanding the zoning restrictions and other policies that landlords put in place and how they impact communities — has just been at the heart of how HUD has approached this work.
“Here, the administration is really sending a dangerous message that unless there's smoking-gun evidence of intent, they're not going to roll up their sleeves and do work to promote fair housing, and that is unfortunate.”
On the foreclosure crisis as an example of disparate impact
“The foreclosure crisis that gripped the nation [was] largely the result of banks imposing pernicious policies and peddling bad loan products to African Americans, Latinos and other communities of color. The Equal Credit Opportunity Act is a federal law that basically gives us a tool: Disparate-impact liability is imposed on banks that engage in discriminatory lending.”
On discriminatory environmental policies
“Let's talk about businesses that emit dangerous toxins in and near minority communities. It's important that we understand how businesses operate in this era, and one thing that we found in the environmental justice context is that too often, dangerous toxins are unleashed into communities of color.”
On whether the White House can remove language about disparate-impact from the regulation without congressional approval
“Well, they are seeking public comment, and there are rules that the administration needs to abide by before rolling back these regulations that [were] put into place after a lot of careful thought and consideration. We're going to be watching HUD very carefully. We've actually brought a number of lawsuits against the administration when they've tried to gut important regulations without taking the necessary precursor steps.”
On laws like the Civil Rights Act of 1964 that include similar language about disparate impact
“We know that disparate impact is already built into the text of a number of our core civil rights laws, like the Voting Rights Act. The Voting Rights Act has a provision that makes it illegal for jurisdictions to impose rules and restrictions that harm minority voters, and we've used Section 2 … to challenge things — sometimes successfully, sometimes not — like voter ID.
“But what the administration is doing is it's broadcasting a really dangerous message about its views on disparate impact, that it does not deem disparate impact to be a viable or acceptable approach for dealing with discrimination. And so, we know that there are some battles that lie ahead.”
On the history of disparate impact under the Trump administration and in the U.S. generally
“At every turn, we have seen this administration turning its back on vulnerable communities in our country and gutting the work of federal agencies that have long been tasked with enforcing law and enforcing regulations that protect the civil rights of Americans. It's created a gaping void that's required civil rights organizations like mine to step up and help fill the gap.
“[Disparate impact] went before the Supreme Court a few years ago in a case called Texas Department of Housing and Community Affairs vs. Inclusive Communities Project. The court issued a 5-4 ruling that was authored by Justice Kennedy, where they held up the principle of disparate impact.”
This segment aired on January 10, 2019.