Rating the Trump Administration on Civil Rights

Less than a year from now, Americans will be choosing a new president. From my perspective at the Center for Equal Opportunity, the Democratic candidates are so far uniformly appalling, each trying to outrace the other to the Left — supporting reparations and busing, condemning the criminal justice system as racist, you name it.

And Donald Trump and his administration — how’s that record after nearly three years? Well, it’s a mixed bag.

As a lawyer and CEO’s general counsel, my focus is on the extent to which the legality of race-based decision-making is being supported or opposed. Racial preferences are supported by the Left in three areas: education, employment, and contracting. In addition, the “disparate impact” approach to civil-rights enforcement (explained below) is enthusiastically championed. So let’s go through the Trump administration’s record in each.

It gets relatively good marks in the education area, where it has rescinded the Obama administration’s “affirmative action” guidance and supported the challenge to Harvard’s policy of racial discrimination in admissions, specifically against Asian Americans. The administration also ruled favorably on our complaint against racial preferences in admissions at Texas Tech medical school and another complaint against PC racial preferences we had filed against the Kentucky state education department.

It gets relatively poor marks with respect to employment, where it has not challenged the use of politically correct hiring and promotion discrimination, and where its Labor Department has not touched its execrable “goals and timetables” regulations for government contractors (some of its Labor Department and Equal Employment Opportunity Commission appointments have been less than impressive, too). As for contracting, it’s made no change, one way or the other, to the federal government’s own discriminatory policies, and it has neither challenged nor defended state and local policies in this area.

That leaves disparate impact. Here again, the record is mixed. The Education Department and HUD have made some important improvements over the Obama administration. On the other hand, the bad regulations that most agencies have in this area have been left in place. In that regard, and I’m going to repeat a plea I made almost exactly a year ago — that the Trump administration conduct an inventory, or issue an executive order, or both. That plea follows.

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The other big area [besides racial preferences] of race-based decision-making is the application of the “disparate impact” approach to civil-rights enforcement. That’s the theory that, if a policy leads to racial imbalances, it is presumptively illegal — even if the policy is nondiscriminatory by its terms, in its application, and in its intent. The result is that decision-makers are driven to adopt policies not because they make the most sense but with an eye on racial results — which is not only inefficient and unfair but exactly the opposite of what the civil-rights laws and indeed the Constitution are supposed to be about.
[As with racial preferences,] the courts are to blame for much of this nonsense, but here again there’s also much that the executive branch has done to make matters worse. In particular, federal agencies are honeycombed with policies that adopt the disparate-impact approach, and the Trump administration needs to root them out.
Fortunately, Gail Heriot — a professor at the University of San Diego law school and one of two sane members of the U.S. Commission on Civil Rights — has written an excellent paper describing how this might be done.
The paper begins by pointing out the constitutional problems with the disparate-impact approach and why its use triggers (and would likely fail) “strict scrutiny,” the Supreme Court’s toughest standard, requiring a showing of “compelling interest” and “narrow tailoring.”
Professor Heriot then proposes what she calls a “Disparate Impact Inventory.” She urges the attorney general “to send a letter to all agencies within the government that enforce any sort of anti-discrimination statute, regulation, or policy and to ask the following questions,” namely:

Do you consider your statute, regulation, or policy to impose liability for disparate impact?
If so, what is the legal basis for that view?
How does disparate impact liability work under that statute, regulation, or policy (e.g., what defenses apply), and what is the agency’s legal basis for thinking so?
Finally, why does the agency believe disparate impact liability will survive strict scrutiny? What’s the compelling interest? Why is it narrowly tailored to achieve that purpose?

Relatedly, Mike Gonzalez and Hans von Spakovsky of the Heritage Foundation have published this paper, on page 9 of which appears an executive order I’ve drafted that would also address executive-branch racial-preferences and disparate-impact policies. To save you the trouble of clicking onto that link, though, here’s my suggested executive order:

Section 1.
(a) It is the policy of the Executive Branch not to discriminate or give preferential treatment on the basis of race, color, national origin, or ethnicity in any of it programs or activities. Unless there are statutes or regulations requiring such discrimination or preferential treatment, no Executive Branch program, activity, or official shall engage in it.

(b) Each agency shall, no later than [date], examine its regulations and relevant statutes to determine if any of them contain such requirements or permitting of discrimination or preference. Where such regulations are found, the agency shall prepare, no later than [date], an amendment to such regulation ending the requirement or permitting of such discrimination or preference and forward it to the Attorney General for his review prior to publication in the Federal Register. Where such statutes are found, the agency shall, no later than [date], prepare a proposed amendment ending the requirement or permitting of such discrimination or preference and forward it to the Attorney General for his review prior to submission to Congress.

(c) Classifications on the basis of race, color, national origin, or ethnicity may be used for purposes of epidemiological research, identification of specific criminal suspects, and such other limited purposes if and only if the Attorney General determines that those classifications are consistent with the Constitution and the President has determined that they are necessary for the furtherance of a compelling public policy.

Section 2.
(a) It is the policy of the Executive Branch not to use the disparate-impact approach in the enforcement or application of any civil-rights law. Unless there are statutes or regulations requiring the approach, no Executive Branch program, activity, or official shall use it.

(b) Each agency shall, no later than [date], examine its regulations and relevant statutes to determine if any of them contain such requirements or permitting of that approach. Where such regulations are found, the agency shall prepare, no later than [date], an amendment to such regulation ending the requirement or permitting of such approach and forward it to the Attorney General for his review prior to publication in the Federal Register. Where such statutes are found, the agency shall prepare, no later than [date], a proposed amendment to such statute ending the requirement or permitting of such an approach and forward it to the Attorney General for his review prior to submission to Congress.

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Here’s hoping that the Trump administration spends the next year aggressively attacking preferences and discrimination on the basis of race, ethnicity, and sex—among government entities at all levels and in the private sector as well—and attacking, too, the use of the disparate-impact approach in civil-rights enforcement.

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