Trump Oval Office
Credit: The White House/Flickr

Even though historical revisionists still try to convince us otherwise, the United States fought a Civil War to end slavery. However, we all know that wasn’t enough to guarantee equal rights for African Americans. Taking a step in that direction was the aim of the Civil Rights Movement in the 1950s and 60s, which resulted in legislation that protected voting rights and made it illegal to discriminate.

We’ve already seen the Supreme Court roll back a major section of the Voting Rights Act, but the Trump administration is also working on neutering the protections against discrimination that have been in place for over 50 years.

The Trump administration is considering a far-reaching rollback of civil rights law that would dilute federal rules against discrimination in education, housing and other aspects of American life, people familiar with the discussions said.

A recent internal Justice Department memo directed senior civil rights officials to examine how decades-old “disparate impact” regulations might be changed or removed in their areas of expertise, and what the impact might be, according to people familiar with the matter. Similar action is being considered at the Education Department and is underway at the Department of Housing and Urban Development.

Under the concept of disparate impact, actions can amount to discrimination if they have an uneven effect even if that was not the intent, and rolling back this approach has been a longtime goal of conservative legal thinkers. Past Republican administrations have done little to erode the concept’s application, partly out of concerns that the Supreme Court might disagree, or that such changes would be unpopular and viewed as racist.

According to the Civil Rights Act of 1964 and the Fair Housing Act of 1968, it is illegal to discriminate against women and people of color in areas like employment, housing and education. But for plaintiffs to charge discrimination, the concept of “disparate impact” means that they don’t have to prove that the offender intended to discriminate, but that the impact of their policies disproportionately affected women and/or people of color. That is the standard that the Trump administration is attempting to roll back.

When it comes to school discipline policies that result in the suspension and expulsion of students of color, disparate impact would take note of the fact that black students are three and a half times as likely to be suspended or expelled than their white peers. But the Department of Education has already rescinded the guidelines established by the Obama administration that relied on data like that.

The administration rescinded six documents related to the guidance. The Education Department’s civil rights office issued a question-and-answer document explaining how it will approach discipline investigations. It said schools have an obligation not to treat students differently based on race. In assessing whether discrimination is at work, the office said it would rely on “direct evidence of racial motive or animus,” such as racially biased statements by decision-makers.

Hopefully that gives you a better idea of how radical these moves by the Trump administration will be. If African American students have to produce proof of racially-biased statements made by the vice-principle who handles school discipline in order to have a complaint about discrimination heard, it is likely that no cases will ever be brought forward.

If the administration eliminates the standard of disparate impact in other areas, the same will hold true for cases involving employment and housing as well. In other words, we’ll be headed back to the 1950’s when it comes to civil rights, with racists given free rein to discriminate as long as they don’t make racially-biased statements about it in public.

As the article above suggests, previous Republican administrations have not gone this far because of concerns about appearing racist. But the man who stepped onto the national political scene by questioning the citizenship of this country’s first African American president doesn’t feel any need to dog whistle his racism. As a matter of fact, he’s made it the central issue of his presidency.

The other reason Republican administrations haven’t taken this step is because of a concern that their efforts will be overturned by the Supreme Court. It is important to note that one of Chief Justice John Robert’s longstanding goals has been to overturn the standard of disparate impact. In 2015, he had an opportunity to do so in a case from Texas on housing discrimination. But Justice Kennedy sided with the four liberals on the court and upheld the standard. Of course, Kennedy has now been replaced on the court by Brett Kavanaugh, so it is doubtful the current court would do the same.

At this point, the Department of Justice is examining how references to disparate impact can be removed from most federal departments.

Much — but not all — of the disparate-impact law could be changed by the administration because the concept was incorporated through regulations, which administrations are free to change by following a formal process. A broad-based rewrite of regulations could affect areas such as transportation and environmental law, as well as education and housing. But it would be harder to make changes to voting and employment law, experts say, because the concept of disparate impact is overtly written into the underlying statute, not just the regulations.

Ever since Trump adopted the phrase, “Make America Great Again,” it has been clear that his aim is to take this country back to the 1950s—that includes an attempt to erase all of the gains made by the Civil Rights Movement.

Nancy LeTourneau

Follow Nancy on Twitter @Smartypants60.