01-13-2021
Title VI of the Civil Rights Act protects individuals participating in programs receiving federal funds from discrimination on the basis of sex, race, color, and national origin. In its eleventh hour, the Trump Administration aims to limit those protections.
As currently interpreted, the statute protects individuals from two types of discrimination: intentional discrimination and disparate impact discrimination. Disparate discrimination refers to facially neutral policies and practices that disproportionately impact a protected group. On December 21, 2020, former Attorney General William Barr submitted a proposal to remove disparate impact protection because it covers “a vastly broader scope of conduct” than the original statute. According to news reports, the Trump Administration has wanted to implement this change for at least two years but waited until now to submit it. The Washington Post notes the typical process for this kind of dramatic change begins with publishing the changes first, then collecting public comment. Once those two things happen, the government makes its final rules. The current administration asserts it is not required to do that here because it falls under an exception.
Not surprisingly, opponents to the changes are alarmed they cannot respond; the government is expected to share the rules only after it enacts them. Intentional discrimination is much harder to prove and ignores the broader impact of policies and decision-making on protected groups. Most discrimination cases fall under this disparate impact category. The U.S. Supreme Court has recognized disparate impact claims in Title VII and housing cases. Once put into place, the incoming Biden administration may not immediately reverse it but may be able to delay its enactment. Legal challenges are likely.