The Trump administration’s Executive Order (EO) “Restoring Equality of Opportunity and Meritocracy” has declared an end to the federal executive branch’s use of disparate-impact theory:
It is the policy of the United States to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible to avoid violating the Constitution, Federal civil rights laws, and basic American ideals.
If it could be fully implemented, this would be a very consequential executive order. What the Trump administration has done to eliminate “diversity, equity, and inclusion” policies only reverse the abuses of the last few years. Disparate-impact theory, as we have detailed in Waste Land: The Education Department's Profligacy, Mediocrity, and Radicalism, is the root and cause for much of arbitrary government in the last half century. The National Association of Scholars (NAS) has been especially concerned with the Education Department’s (ED) use of disparate impact theory, but a large number of federal departments and agencies invoke disparate impact theory. This EO raises the possibility that at last the power of the federal executive branch will be brought to bear to end this engine of tyranny.
America’s legal incorporation of “disparate impact” dates to Griggs v. Duke Power Co. (1971), which forbade the use of employment tests with disparate racial effect unless such tests were directly and narrowly job-related. The ambiguous authorization of affirmative action in Regents of the University of California v. Bakke (1978) then created pressure, and permission, to use disparate impact theory as a complement to affirmative action.
Disparate impact theory, as applied to education, holds that any policy with a disparate racial or sexual effect violates civil rights law. This explicitly contradicts the civil rights and Title IX statutes, as well as the tenor of major corollary judicial decisions, which state that what has been rendered illegal is discriminatory intent.
Disparate impact was well intentioned, as a means to redress previous discrimination, but most Americans now realize that it has had terrible effects. Disparate impact theory degrades the foundations of Anglo-American law, including individual responsibility and the presumption of innocence. It also replaces individual competition on the grounds of merit with identity-group quotas. It furthermore is an engine of a too-powerful and arbitrary government, since,
- An equality of results among human beings never occurs by nature, not least because human beings make individual choices by free will that differ from one another in their consequences;
- An equality of results can only be achieved (if at all) by government intervention;
- Every policy and practice benefits some groups more than others; and
- Government must arbitrarily select among the infinity of inequalities that are worthy of litigation.
To accept disparate impact theory is to grant excessive power to any government agency granted power to “remedy inequalities,” to act arbitrarily and perpetually in pursuit of the unattainable. Disparate impact theory, moreover, does not accord with the controlling statutory language in civil rights and Title IX law. ED, or any federal department or agency, can only claim to apply disparate impact theory through a studied unconcern about the statutory warrant for its powers.
ED, nevertheless, has repeatedly brought up disparate impact theory as a justification for its proposed actions. ED’s destruction of effective school discipline policies (which the Trump administration has addressed in a companion EO, “Reinstating Common Sense School Discipline Policies”) rests on the grounds of disparate impact. Similar ED disparate impact initiatives threaten standards assessments. In 1999, for example, ED distributed draft guidelines that would “challenge the use of standardized tests when they have a ‘disparate impact’ on racial or ethnic groups.” Disparate impact theory threatens to make special education impossible to function, since ED investigates states and school districts for civil rights violations whenever they identify too few or too many students of each race who need special education.
Griggs v. Duke Power Co. still stands, and large amounts of government, civil society, and private business will continue to shape their policies to avoid being sued. A myriad of state and local governments also have taken up disparate impact theory, and they continue to impose it on the American people. Worst of all, a 1991 federal statute codified the use of disparate impact theory. But the federal executive branch has done the greatest single amount of harm by its use of disparate impact theory. This EO transforms it from an enemy of American liberty to its champion. The EO does not bring about an end to government use of disparate impact theory, but it reduces it substantially.
America’s constitutional order has been under assault at least since the 1960s. Disparate impact theory is the engine of the progressive would-be Constitution. This EO is the Trump administration’s greatest single action to date to restore our Constitution of liberty. NAS welcomes it, endorses it, and urges its thorough enforcement.
All Americans should know how important it is to eliminate disparate action from government policy, and how great a blow the Trump administration has struck to the enemies of liberty. We have much work yet to do, but this EO appreciably lessens the checklist for reinvigorating American freedom.
Photo by Carmen Rodriguez on Flickr
