Disparate Impact

From The Federalist Society On June 25, 2021, President Biden’s newly appointed Housing Secretary Marcia Fudge proposed to rescind a Secretary Carson-era disparate impact rule designed to implement the Fair Housing Act.  In its place, HUD would reinstate the 2013 Discriminatory Effect Standard because the 2013 rule “better states Fair Housing Act jurisprudence and is more consistent with the Fair Housing Act’s remedial purposes.”  By the time notice and comment ended on August 24, 2021, over ten thousand public comments had been submitted.   Critics of Secretary Fudge’s proposed rule, including Ranking Member Senator Pat Toomey, argue that the change not only flouts the Supreme Court’s decision in Texas …

For many years, the Center for Equal Opportunity tried to get the Supreme Court to rule that there is no “disparate impact” cause of action under the Fair Housing Act.  Thus, for example, if the landlord of an apartment building decided to favor potential tenants who did not have a record of violent crime — and this policy ignored race by its terms, in its intent, and in its application — then he could not be held liable for racial discrimination just because the policy had a statistically disproportionate effect on this racial group versus that racial group.   Alas, …

Let me elaborate a bit on the important development, regarding the Trump administration and the dubious “disparate impact” approach to civil-right enforcement, that I discussed in an earlier email this month. Not only has the Trump administration done the right thing in rescinding the Obama-era guidance aggressively taking the “disparate impact” approach with respect to school discipline, but the Washington Post reports that this action reflects a larger skepticism in the administration about the approach throughout executive-branch agencies. Good. As conservatives have long argued, this approach to civil-rights enforcement is bad law and bad policy for any number of reasons. …

Happy New Year!  And I’m happy to be able to start 2019 with some good news:  The Trump administration appears to be headed in the right direction on the issue of “disparate impact.”  Below are slightly edited versions of my latest three posts over the holiday season and into the new year on National Review Online, each dealing with this important issue. I should add that, at the end of last week, the Washington Post had a news story confirming this trend, and predictably the New York Times had an editorial over the weekend decrying it — but both the …

I’ve given kudos to the Department of Justice for its filing against Harvard in the lawsuit where the school is charged with discrimination against Asian Americans in admissions.  (That’s a case where the Center for Equal Opportunity has also filed an amicus brief and published two papers, by the way.)  Here’s hoping that the administration will likewise oppose politically correct preferences in employment and contracting; for the latter, especially, there’s much the federal government needs to do to put its own house in order. The other big area of race-based decision-making is the application of the “disparate impact” approach to …

The Ninth Circuit issued a favorable opinion this summer in Hardie v. NCAA, a case raising the important question of whether “disparate impact” liability is cognizable under Title II of the Civil Rights Act. The Ninth Circuit didn’t answer the broad question of whether Title II ever recognizes such claims. It held instead that NCAA’s ban on felon-coaches in its high school tournaments didn’t amount to a disparate impact violation, even if Title II might under other circumstances encompass such claims. In a cogent concurring opinion, Judge Faber noted that although NCAA did not argue the issue on appeal, “amici Pacific …

As the recent articles here and here discuss, the combination of the Obama administration and Mayor Bill de Blasio has proved toxic for safety and order in New York City public schools. On top of that, the New York Board of Regents announced last week that it was no longer going to require aspiring teachers there to pass a literacy test. The reason for this madness is in both instances the same: the felt imperative of getting the numbers right, of getting rid of any standard that might have a “disparate impact” on the basis of race or ethnicity. If discipline standards and literacy requirements …

The “disparate impact” approach to civil-rights enforcement is bad policy in any area —employment, voting, housing, credit, school discipline, policing, pizza delivery (yes, it’s been applied there, too), you name it — but it is perhaps most bizarre in environmental law, where it’s labeled “environmental justice.”  The approach in general considers it to be illegal discrimination if a practice has a statistically disproportionate racial effect, even if the challenged practice is neutral by its terms and in its intent, and is evenhandedly applied. So, for example, if a landlord prefers not to rent to people with a record of violent-crime convictions, …