Not only has the Trump administration done the right thing in rescinding the Obama-era guidance aggressively taking the “disparate impact” approach with respect to school discipline, but the Washington Post reports that this action reflects a larger skepticism in the administration about the approach throughout executive-branch agencies.
Good. As conservatives have long argued, this approach to civil-rights enforcement is bad law and bad policy for any number of reasons. We’ve also urged an administration-wide review like the one that is apparently being undertaken. Kudos to the administration.
The Washington Post article prompted, predictably, a New York Times editorial over the weekend lamenting the administration’s apparent dislike of the approach. But the Times editorial, like the Post article, had to concede that conservative criticism of “disparate impact” is nothing new. Indeed, I’d like to thank the Times for its hyperlink to an old Reagan/Meese-era report on the legal and policy problems that the disparate-impact approach raises: Though some of the legal discussion is dated, it’s otherwise excellent.
One hopes that, if the issue is framed for the Trump administration as,“Do you want to follow the New York Times editorial board, or the Reagan administration and conservatives?,” then it will do the right thing. Any policy that is nondiscriminatory on its face, nondiscriminatorily intended, and nondiscriminatorily applied is nondiscriminatory — even if it happens to lead to politically incorrect statistical results. Conversely, requiring people to adopt policies with an eye on achieving politically correct racial results means we will have quotas rather than good selection practices.
Finally, in a not wholly unrelated matter, Chai Feldblum has left the U.S. Equal Employment Opportunity Commission — another result that conservatives have been working for.