DOJ Makes Rule Change to End Disparate Impact Liability

Back in April, President Trump signed an executive order taking direct aim at disparate impact liability.

A bedrock principle of the United States is that all citizens are treated equally under the law. This principle guarantees equality of opportunity, not equal outcomes.  It promises that people are treated as individuals, not components of a particular race or group. It encourages meritocracy and a colorblind society, not race- or sex-based favoritism. Adherence to this principle is essential to creating opportunity, encouraging achievement, and sustaining the American Dream.

But a pernicious movement endangers this foundational principle, seeking 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. A key tool of this movement is disparate-impact liability, which holds that a near insurmountable presumption of unlawful discrimination exists where there are any differences in outcomes in certain circumstances among different races, sexes, or similar groups, even if there is no facially discriminatory policy or practice or discriminatory intent involved, and even if everyone has an equal opportunity to succeed.

One of the things that order mandated was that the Attorney General should make changes to “repeal or amend all Title VI (racial nondiscrimination) regulations that contemplate disparate-impact liability.” Yesterday, Pam Bondi did just that.

Today, the Justice Department issued a final rule updating its regulations under Title VI of the Civil Rights of 1964. This rule ensures that our nation’s federal civil rights laws are firmly grounded in the principle of equal treatment under the law by eliminating disparate-impact liability from its Title VI regulations.

“For decades, the Justice Department has used disparate-impact liability to undermine the constitutional principle that all Americans must be treated equally under the law,” said Attorney General Pamela Bondi. “No longer. This Department of Justice is eliminating its regulations that for far too long required recipients of federal funding to make decisions based on race.”

“The prior ‘disparate impact’ regulations encouraged people to file lawsuits challenging racially neutral policies, without evidence of intentional discrimination,” said Assistant Attorney General Harmeet K. Dhillon of the Justice Department’s Civil Rights Division. “Our rejection of this theory will restore true equality under the law by requiring proof of actual discrimination, rather than enforcing race- or sex-based quotas or assumptions.”

And once again, I find myself surprised that the Washington Post editorial board has written a piece commending Bondi and the effort to end disparate impact liability. (At some point, seeing sensible editorials at the Washington Post will stop being shocking to me, but not this week.)

Progressive identity politics is in retreat after resounding defeats in court and at the ballot box. But if a future Democratic administration wants to recommit to woke politics, it will still have many tools at its disposal. One of them is the legal doctrine of “disparate impact,” which encourages companies, universities and state and local governments to fixate on race and ethnicity to a fault. Attorney General Pam Bondi has chipped away at the doctrine with revised regulatory guidance this week, and other departments can follow her lead.

The Civil Rights Act of 1964 is aimed at intentional discrimination. The concept of disparate impact stretches that idea to the point of incoherence. It says that different average outcomes among groups — even if there was no intent to discriminate — can still be a civil rights violation…

Claims that these revisions somehow authorize discrimination are bogus. They do the opposite. Purposely treating one group differently than another remains illegal, as it should…

Some of the Trump administration’s anti-woke agenda has been irresponsible, but this is a reasonable correction to past overreach.

As was the case the last time I wrote about a Washington Post editorial, the commenters are furious that their paper is expressing unapproved opinions. Here’s the top response.

There seems to be affirmative action in the Justice Department for women who look like Pam Bondi. Similar look to every female FoxNews host.

It’s not really a response just someone lashing out in frustration. Here’s another example.

The word WOKE as used by MAGA and the trump administration, is intended as a racial slur to disparage women and minorities. After reading this editorial, I regret starting my subscription again.

That’s false of course. Woke is used by MAGA to refer to wokeness, a type of identity politics mixed with critical race theory which has been adopted with a religious fervor by many progressives, including many white women, over the past decade. It’s a perfectly good word to describe disparate impact theory.

Anyway, I suspect the Post really is testing the patience of its progressive readers who are not used to being contradicted, certainly not by the Post. Some of them will undoubtedly unsubscribe. The question is whether people who find the Post’s change of approach refreshing will sign up.

Editor’s Note: Do you enjoy Hot Air’s conservative reporting that takes on the radical left and woke media? Support our work so that we can continue to bring you the truth.

Join Hot Air VIP and use the promo code FIGHT to get 60% off your VIP membership!