View Full Version : Trump Looks to Uproot Numbers-Only Bias Test Widely Used in U.S.

02-17-2019, 06:26 PM
In what would be one of the Trump administration’s most far-reaching moves regarding race relations, top White House officials are planning a sharp pullback from federal efforts to correct imbalances in outcomes for minorities in everything from housing to hiring. On the table: a ban on the use of a controversial numbers-focused racial-bias theory known as “disparate impact.”

Federal regulators and lobbyists familiar with the change say the White House management and budget office is reviewing a proposed executive order, originally drafted by two conservative Washington think tanks, that would prohibit the use of “the disparate-impact approach in the enforcement or application of any civil-rights law.”
A catalyst for the move is White House budget director Mick Mulvaney, who is currently also serving as interim White House chief of staff and who, while serving in Congress, was a longtime critic of disparate impact. It is not clear whether President Trump has decided to issue the executive order, which would repudiate the underlying rationale for scores of regulations and thousands of government lawsuits alleging racial discrimination, resulting in billions of dollars in fines. Doing away with it would engender fierce opposition from Democrats.
The White House press office did not respond to a request for comment.
Championed by liberals and civil-rights activists, and aggressively enforced by the Obama administration, disparate-impact doctrine holds that policies or practices that are set forth and applied neutrally can be discriminatory if they have an unequal impact on specific groups. Aimed at rooting out subtle forms of bias, the theory asserts that statistical disparities can be proof of discrimination even when no intention is clear.
Although the Supreme Court first approved use of the approach in 1971 and reaffirmed its use most recently in 2015, conservative opponents of the doctrine believe the currently constituted high court would uphold an executive order doing away with it.
The Obama administration used disparate impact to sue hundreds of school districts for civil rights violations because they disciplined black students at higher rates than whites. It also used the theory to allege bias in consumer credit reporting, employee background checks, student loans, criminal court fines, traffic stops and arrests, and home and auto lending, among other things.
Conservative critics argue liberal politicians and bureaucrats have long misused the theory to find racial bias where it does not exist. They see it as a social-engineering weapon aimed at equalizing outcomes and extending the government’s power over the private sector.

"Cutting back on disparate-impact liability is an important and welcome development,” said University of Pennsylvania Law School professor Amy Wax. She argues that disparate effects are assumed to stem from racism when other factors better explain such racial gaps, including economic conditions, behavior and culture.
Presuming that racial disparities are signs of discrimination, as the federal government typically does, and forcing organizations to close them through policy changes "imposes an expensive, inefficient and often counterproductive burden on private actors in our society,” Wax said.
The ultimate impact of the proposed executive order is not clear, but presumably it would require the government to meet a much higher standard of demonstrating that policies were intended to discriminate.
Disparate-impact theory has long been a concern of conservatives, who were alarmed by the Obama administration's broad embrace of it. Constitutional scholars, both in academia and at think tanks such as the Heritage Foundation and Center for Equal Opportunity, co-drafters of the proposed order, have been pushing the Trump administration since its earliest days to abandon the approach.
Some of these advocates were disappointed that the Department of Education stopped short of invalidating disparate-impact liability in December when it rescinded the Obama-era school discipline guidance that was anchored in the theory.

More at: https://www.realclearinvestigations.com/articles/2019/02/14/trump_looks_to_end_numbers-only_bias_theory_governing_american_life.html