The Corner

Politics & Policy

The Trump Administration Needs a ‘Disparate Impact Inventory’


I wrote last week to give kudos to the Department of Justice for its filing against Harvard in the lawsuit where the school is charged with discrimination against Asian Americans in admissions. Here’s hoping that the administration will likewise oppose politically correct preferences in employment and contracting; for the latter, especially, there’s much the federal government needs to do to put its own house in order.

The other big area of race-based decision-making is the application of the “disparate impact” approach to civil-rights enforcement. That’s the theory that, if a policy leads to racial imbalances, it is presumptively illegal — even if the policy is nondiscriminatory by its terms, in its application, and in its intent. The result is that decision-makers are driven to adopt policies not because they make the most sense but with an eye on racial results — which is not only inefficient and unfair but exactly the opposite of what the civil-rights laws and indeed the Constitution are supposed to be about.

Here again, the courts are to blame for much of this nonsense, but here again there’s also much that the executive branch has done to make matters worse. In particular, federal agencies are honeycombed with policies that adopt the disparate-impact approach, and the Trump administration needs to root them out.

Fortunately, Gail Heriot — a professor at the University of San Diego law school and one of two sane members of the U.S. Commission on Civil Rights — has written an excellent paper describing how this might be done. It begins by pointing out the constitutional problems with the disparate-impact approach and why its use triggers (and would likely fail) “strict scrutiny,” the Supreme Court’s toughest standard, requiring a showing of “compelling interest” and “narrow tailoring.” Professor Heriot then proposes what she calls a “Disparate Impact Inventory.” She urges the attorney general “to send a letter to all agencies within the government that enforce any sort of anti-discrimination statute, regulation, or policy and to ask the following questions,” namely:

  1. Do you consider your statute, regulation, or policy to impose liability for disparate impact?
  1. If so, what is the legal basis for that view?
  1. How does disparate impact liability work under that statute, regulation, or policy (e.g. what defenses apply), and what is the agency’s legal basis for thinking so? 
  1. Finally, why does the agency believe disparate impact liability will survive strict scrutiny? What’s the compelling interest? Why is it narrowly tailored to achieve that purpose? 

Relatedly, Mike Gonzalez and Hans von Spakovsky of the Heritage Foundation have published this paper, on page 9 of which appears an executive order I’ve drafted that would also address executive-branch racial-preferences and disparate-impact policies.

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