Instead of just filing a two-week notice and coasting until Inauguration Day, the Justice Department has opted to drastically shift civil rights protections for underrepresented groups.
According to the New York Times, the Justice Department has proposed a change to the way Title VI of the Civil Rights Act is enforced. Title VI prohibits organizations that receive federal funding from discriminating based on race, skin color, or nationality. A wide range of organizations falls under these protections including housing programs, employers, and even schools.
The change proposed by the DOJ would have the department no longer providing protections in instances where a certain policy has a “disparate impact” on non-white people. The disparate impact rule is necessary because as we know racism isn’t just someone calling you a slur; it’s typically a pattern of behavior. This rule provides a way for that behavior to be examined and then compared with other groups to prove inequity.
From the New York Times:
A widely cited example of disparate impact has been the Jim Crow-era literacy tests that some states created as a condition to vote. The tests did not ask about race and so seemed neutral on their face. But they disproportionately prevented Black people from voting because they had long been forced out of schools and could not read. The tests are generally thought of as discriminatory because of that disparate impact on Black people.
More recently, the protections against disparate impact were crucial to Education Department investigations into disproportionate discipline rates among Black and Latino students in schools. It allowed the department’s Office for Civil Rights to “look at policies and take into account harmful outcomes,” said Shiwali Patel, senior counsel for the National Women’s Law Center, who worked in the office during the Obama and Trump administrations.
In several cases, the office found that schools were disciplining students differently by race.
Disparate impact makes up a bulk of discrimination cases because, let’s be real: It’s not like organizations are going to be like “Yes, we are consciously and willfully discriminating against Black people.” White folks think racism is literally just saying the n-word. You really think they have the self-awareness to admit to unconscious bias without the goddamn law?
The DOJ justified the move by arguing that it’s currently enforcing “a vastly broader scope of conduct” than the statute explicitly regulates. I’m no legal scholar, but if that truly were the case wouldn’t a more proactive solution simply be expanding the scope of the statute? Who am I kidding, that’s too much like trying to actually solve a problem.
Former Attorney General William Barr submitted the change for White House approval on Dec. 21, making it one of his final acts in the role.
Now, I know you might be thinking “can’t the incoming Biden administration just bibbity bobbity boop this shit out of existence?” Well, not exactly. While the incoming attorney general could delay the change from being enacted, they wouldn’t be able to immediately reverse it. This sets up the change to likely face legal challenges from progressive groups.
This is a fitting final step for the Trump administration, which has spent much of its time trying to “Make America great again” by taking it back to the 1950s and rolling back discrimination protections. Last fall, the Department of Housing and Urban Development completed a rule that would have significantly weakened anti-discrimination protections in the mortgage industry. This spurred the four largest banks in the U.S.—who would’ve actually benefited from the changes—to send a letter to housing secretary Ben Carson asking them to keep the regulation in place.
Michael DeVito, Wells Fargo’s executive vice president for home lending wrote in the letter that the federal government “should acknowledge that Americans’ attention to racial discrimination is more pronounced and expansive.” Do you know how trash you have to be for the banks to go “actually, could you please keep regulating us?” This administration, y’all, goddamn.
Should the revision be approved by the White House, which it’s expected to, it will be the first major revision to how Title VI defines discriminatory behavior in almost 50 years.