President Trump continues to assail the once-unassailable status quo on civil rights. The behemoth of federal civil rights laws may originate with the Civil Rights Act of 1964, but far too much of it has been invented by administrative agencies and courts. That should end — and it is a fight worth having.
The shift of a significant number of non-white voters into Trump’s coalition in 2024 can be read in many ways, but clearly one driver was the exhaustion of long-standing Democratic appeals to race-conscious remedies, premised as so many of them are on group identity and the notion that every disparity among groups in society reflects a deep conspiracy rather than the many and varied choices of individuals. The changing complexion of his voters has emboldened Trump to try a new direction, away from race consciousness and toward individual merit. If this truly marks the end of an era, we welcome the change.
In January, a Trump executive order targeting “diversity, equity, and inclusion” (DEI) initiatives repealed racial preferences in federal operations going as far back as 1965. Wednesday, he was at it again, issuing another executive order declaring it “the policy of the United States to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible to avoid violating the Constitution, Federal civil rights laws, and basic American ideals.”
The Civil Rights Act banned discrimination “because of” race, sex, and other prohibited characteristics. That language was written, intended, and understood at the time to outlaw intentional discrimination. Practices that had a dramatically unequal outcome on different groups might be supporting evidence of intentional discrimination, but nothing in the statute made it a substitute for proving discrimination. Other statutes written in that era, such as the Age Discrimination in Employment Act of 1967 (ADEA) and the Fair Housing Act of 1968 (FHA), contained similar language.
As Justice Clarence Thomas has observed, “The author of disparate-impact liability under Title VII was not Congress, but the Equal Employment Opportunity Commission (EEOC).” The EEOC’s leaders felt that Congress had passed a “compromise” statute and that, through “creative interpretation,” it could be expanded to reach any practice that produced unequal outcomes. Deference to the EEOC’s position led the Supreme Court to adopt the disparate impact theory under Title VII in 1971, and later to engraft it upon the ADEA and the FHA, the latter in a 5–4 decision in 2015 from which Thomas, Justice Samuel Alito, and Chief Justice John Roberts all dissented. Trump’s executive order quotes the chief justice’s own words in another case: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
The Court is no longer so deferential to agency interpretations of the law — and may soon be asked to decide whether it must defer to a former agency position the executive branch has abandoned. Trump not only directed the repeal of regulations dating as far back as 1966; he also directed the government to review its litigation posture in all cases where it asserts disparate impact theories. While the president cannot dictate what the courts will do, the least he can do is put an end to the executive branch’s role in creating this mischief in the first place.
Besides being an agency invention ungrounded in the statute, disparate impact liability stands antidiscrimination law on its head. A law intended by Congress to ban intentional discrimination ends up being interpreted to require intentional discrimination — which is sometimes the only sure, swift way to make unequal outcomes disappear. The doctrine itself has had all manner of ill effects on the capacity of employers to apply race-neutral or gender-neutral standards of qualification and fitness, and replaced the concept of an equal opportunity employer with the overweening human resources departments that gave us DEI.
The Court, in 1971, argued that it was necessary to police unequal outcomes lest they “‘freeze’ the status quo of prior discriminatory employment practices.” Whatever the practical merits of that argument were 54 years ago, we have witnessed not only half a century’s distance from that argument but also revolutions in the structure of the American economy as well as the demographics of its workforce. It is past time to let go of group-obsessed thinking and inspire us once again to aspire to treat every American equally — no matter the outcome. The impact of that would benefit us all.