On December 9, the Trump Justice Department issued a rule updating its Title VI regulations under the Civil Rights Act of 1964. The new rule eliminates disparate impact liability. This means that a program or decision-maker is no longer presumed guilty of racial discrimination simply because policies or decisions affect members of different racial or ethnic groups differently.

So, if Harvard admits more Asian students than Hispanic students, it will not automatically be viewed as engaging in racial discrimination in violation of Title VI.  Likewise, if a track team ends up with fewer runners of Irish and Polish descent and more runners of African ancestry, the coaches will not automatically be viewed as engaging in illegal racial discrimination. If the Harvard or track team policies are race-neutral, this disparate racial effect—where different numbers of different racial or ethnic groups exist—will not automatically mean illegal race discrimination.

The different numbers or the “disparate impact” can still be evidence of such discrimination. But without more, the numbers won’t mean liability.

Congress passed Title VI of the Civil Rights Act to prohibit intentional discrimination based on race, color, or national origin in programs receiving federal funds. Title VII separately prohibited discrimination in private-sector employment and hiring decisions. The nondiscrimination statutes of this era are also called equal-opportunity laws.

None of these laws mentions “disparate impact.”

That’s because they targeted intentional bigotry and prejudice that would unfairly deprive Americans of equal opportunity because of their race.

In 1973, however, the federal government added “disparate impact” to regulations implementing these laws. These disparate impact regulations either presumed malicious intent or didn’t care about intent, contrary to the purpose of these laws.

The December 9 rule of Trump’s Justice Department is therefore simply returning federal policy to the original intention of the 1960s civil rights legislation—that is, the prohibition of intentional racial discrimination. As the announcement says, “The Department’s new rule ensures that recipients of federal funding will be judged on their actual conduct, not on statistical outcomes or circumstances beyond their control.”

This is a development the National Association of Scholars welcomes. NAS has argued that disparate impact theory departs from the text of civil rights law by substituting statistical outcomes for proof of intentional discrimination.

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