Edward Conard

Top Ten New York Times Bestselling Author

  • “…a fresh argument for the productive value of inequality.” - David Autor, Professor of Economics, Massachusetts Institute of Technology
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  • “…a fresh argument for the productive value of inequality.” - David Autor, Professor of Economics, Massachusetts Institute of Technology
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  • “…reminds us that inequality sends a signal of what society lacks most, in America’s case, entrepreneurship and risk taking.” - Lawrence Lindsey, CEO, The Lindsey Group, former Director of the National Economic Council
  • “…a must-read for serious students of economic policy.” - Glenn Hubbard, Dean, Columbia Business School, and former Chairman of the Council of Economic Advisers
  • “Unintended Consequences offers deep and well-argued analyses on almost every issue.” - The New York Times
  • “…challenges misconceptions that distort our economic debates.” - Arthur Brooks, President of the American Enterprise Institute
  • “…a must-read for serious students of economic policy.” - Glenn Hubbard, Dean, Columbia Business School, and former Chairman of the Council of Economic Advisers
Upside of Inequality Oxford Unintended Consequences

AI Summary. A rollback of the disparate impact principle — which allows discrimination to be identified from outcomes rather than proven intent — would reshape enforcement of federal voting rights, employment statutes, and the Fair Housing Act by requiring proof of intentional discrimination. The US Treasury has asserted that disparate impact assessments could disrupt the insurance industry.

The Editorial Board New York Times
Date Posted:
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The Trump administration’s rollback of disparate impact principle could alter civil rights enforcement, impacting voting rights, employment statutes & Fair Housing Act. Disparate impact allows discrimination to be identified based on outcomes rather than intent.

How would requiring proof of intent reshape civil rights enforcement?

Core argument: The Trump administration's potential rollback of the disparate impact principle, which identifies discrimination by outcomes rather than intent, could alter enforcement of federal voting rights, employment statutes, and the Fair Housing Act.

The Trump administration's potential rollback of the disparate impact principle could significantly alter civil rights enforcement, impacting federal voting rights, employment statutes, and the Fair Housing Act. Disparate impact allows discrimination to be identified based on outcomes rather than intent, crucial for addressing systemic biases. The administration's actions, such as the Education Department's removal of school discipline guidelines, suggest a shift towards requiring proof of intentional discrimination. This could undermine decades of progress in civil rights, as disparate impact has been pivotal in recognizing subtle and systemic discrimination. The Treasury Department's 2017 assertion that disparate impact assessments could disrupt the insurance industry further highlights the economic implications of these potential changes. As Justice Kennedy's 2015 decision supporting disparate impact faces scrutiny under a more conservative Supreme Court, the future of this critical civil rights tool remains uncertain.

Takeaways by Macro Roundup® AI

  1. The Trump administration's potential rollback of the disparate impact principle, which identifies discrimination by outcomes rather than intent, could alter enforcement of federal voting rights, employment statutes, and the Fair Housing Act.
  2. The Education Department's removal of school discipline guidelines suggests a shift toward requiring proof of intentional discrimination, a change the article argues would undermine decades of civil rights progress against subtle and systemic bias.
  3. The Treasury Department asserted in 2017 that disparate impact assessments could disrupt the insurance industry, and Justice Kennedy's 2015 decision supporting disparate impact faces scrutiny under a more conservative Supreme Court.

The Editorial Board, "The Latest Front Against Civil Rights,"New York Times, January 4, 2019, https://www.nytimes.com/2019/01/04/opinion/disparate-impact-discrimination-trump.html

The law of “disparate impact” isn’t broken. There’s no need for Donald Trump to rewrite it.

Reaffirming that “much progress remains to be made … in moving the nation toward a more integrated society,” Justice Anthony Kennedy wrote in a 5-4 Supreme Court decision in 2015 that it was appropriate for the Fair Housing Act of 1968 to let discrimination be measured by its “disparate impact” on minorities even if there was not proof of intentional discrimination.

The reason, as he noted, is that discrimination doesn’t just happen overtly, that governments and private actors sometimes take actions that fall hardest — or have a disparate impact — on people of color or other groups.

But the Trump administration, which has already rolled back Justice Department oversight of police departments and Education Department protections for transgender students, may be targeting the principle of disparate impact in its latest effort to undermine civil rights enforcement, according to a report in The Washington Post.

Of course, some trial balloons floated out of the Trump administration vanish into the ether without becoming policy. May this be one of them. The reported changes would be a major shift in the way the executive branch has enforced civil rights laws for the past few decades.

Federal voting rights and employment statutes, as well as the Fair Housing Act, recognize the use of disparate impact to find discrimination in those areas, and Donald Trump would need Congress to rewrite such laws if he wants to do anything about that.

But regulations and what the administration likes to call “sub-regulatory guidance” that accept the use of disparate impact may be changed or scrapped by administrative action — as Betsy DeVos, the secretary of education, did last month when she did away with school discipline guidelines the Obama administration issued to curb the disproportionate punishment of black and brown schoolchildren.

In a report published ahead of that decision, the Education Department said disparate impact “may lead schools to adopt racial quotas or proportionality requirements.”

This same attitude is likely what drove the Department of Housing and Urban Development, under Secretary Ben Carson, to reconsider a 2013 rule that set up a standard for how to impose liability for housing practices that had a disparate impact on minorities. The rule revision is still pending, but in 2017, the Treasury Department told HUD that disparate impact assessments could be illegal and disrupt the insurance industry.

What the Trump administration is doing is nothing new. Republicans and conservative legal theorists have long set their sights on the disparate impact principle, claiming that the only true evil that needs to be rooted out under the law is intentional discrimination. To the Reagan Justice Department, disparate impact was a “rhetorical misappropriation” of the word “discrimination” — a “contrived theory” that only perpetuates injustice and inequality.

In reality, discrimination is often subtle and systemic, and Congress and the courts over time have recognized that by bolstering, not weakening, the use of disparate impact in a broad spectrum of civil rights protections.

Justice Kennedy has been replaced by Justice Brett Kavanaugh, a more doctrinaire conservative. Given the court’s increasing disregard for precedent, the 2015 decision that Justice Kennedy wrote may not last long.

As the nation continues its long march toward equality, it would be outrageous to destroy such an important means of advancement — one the civil rights bar still depends on to make its case in court.

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