Justice Department Must Maintain Disparate Impact Protections

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Lawyers for Civil Rights (LCR) met with the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget to express serious concern surrounding an eleventh-hour attempt by the Department of Justice (DOJ) to revise Title VI of the Civil Rights Act. Although the agency was unable to provide any details with respect to the content or timing of the new regulation, we have every reason to believe DOJ is seeking to undermine the disparate impact protections of the statute. A critical component of civil rights jurisprudence, disparate impact theory targets neutral policies that nonetheless have a discriminatory effect on protected groups, including racial and ethnic minorities, women, and people with disabilities.

In what appears to be the first meeting with OIRA pursuant to Executive Order 12866, LCR made the case for preserving disparate impact protections for people of color and immigrants. LCR outlined the harm the regulation would pose to communities of color and immigrant communities. In particular, we emphasized that the procedural posture of this regulatory change, including the total absence of notice and comment, rendered DOJ vulnerable to litigation.

“DOJ is undermining decades of civil rights law. Without even publicly releasing the text of its new rule, DOJ is attempting to destroy a vital tool used by survivors of discrimination, as well as federal agencies, to stamp out discrimination by recipients of federal funding,” said Attorney Lauren Sampson of Lawyers for Civil Rights. 

This is not the first time the Trump Administration seeks to undermine anti-discrimination protections through illegal federal agency action. The Trump Administration, through the Department of Housing and Urban Development (HUD), attempted to gut the disparate impact protections of the Fair Housing Act. In response to HUD’s illegal rule-making in Fall 2020, Lawyers for Civil Rights joined forces with Anderson & Kreiger, Massachusetts Fair Housing Center, and Housing Works to sue HUD in federal court. The successful litigation secured a nationwide injunction against HUD blocking the agency’s efforts to dilute anti-discrimination protections. More information on the HUD litigation is available here.

Check out LCR’s advocacy work to hold DOJ accountable in the New York Times.