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A recent executive order by President Donald Trump has sparked much debate on the role of anti-discrimination laws, the treatment of protected classes and the need for meritocracy. The order “Restoring Equality of Opportunity and Meritocracy” instructs federal agencies to eliminate the use of disparate impact liability in all situations. This issue might seem small, but it’s indicative of a much larger cultural and political fight around race and gender in schools and workplaces. The purpose of these attacks on anti-discrimination laws is ultimately to erode civil rights protections for vulnerable groups and solidify the systemic inequalities from the past.
Disparate impact is a legal standard that helps the government prove that discrimination has occurred without there being explicit or blatant discriminatory practices. In the 1971 Griggs v. Duke Power case, the Supreme Court decided that even certain practices that are not discriminatory on their face can still violate the Civil Rights Act if they disproportionally affect a protected class. This is important, because the reality is that systemic inequality is deeply ingrained in our society, impacting people’s housing, employment and education. It’s vital that the government has meaningful tools to stop discrimination — even when people don’t say the quiet part out loud and the discrimination is covert.
Those who agree with the Trump administration see legal standards like these as an example of favoritism for minority groups. In a classic “reverse racism”-style argument, they claim that anti-discrimination laws have been misused to give legal priority to people with marginalized identities. Also, that any implementation of disparate impact, racial/gender quotas or diversity initiatives is in fact discriminatory against white, cisgender, heterosexual people. There is a collective belief (or willful blindness) among right-wing groups that all social ills were solved in the 1960s and anti-discrimination laws are just causing more division. But have the problems gone away? The answer is, of course, absolutely not.
One clear example of disparate impact in action is school discipline. In 2023, the U.S. Education and Justice departments reported on unlawful discrimination they found when investigating complaints of mistreatment over the last three presidential administrations. The departments concluded that “discrimination based on race, color, and national origin in student discipline was, and continues to be, a significant concern.” By examining school records and files and conducting interviews, agencies can see that Black students are disproportionately punished compared with their white counterparts, with the discipline being harsher for the same infraction. They also found a higher tendency to call the police when a Black student was involved compared with a white student. By looking at statistically significant differences in outcomes between white and Black students, the government can conclude that discrimination is occurring — even if there is no official written school policy to discipline Black students more harshly.
The Trump administration and the right-wing groups that support it are advocating for the removal of anti-discrimination laws outright or weakening them. Some have called for higher standards to be set so that outcomes alone are not indications of discrimination. Others have called for the federal and state agencies investigating civil rights complaints, like the Minnesota Department of Human Rights, to be removed completely, leaving victims of discrimination on their own to pursue claims in court. The intent here is clear — make it as hard as possible to have meaningful recourse when your civil rights are violated and you are discriminated against.
This latest executive order is an outgrowth of the attack on diversity, equity and inclusion initiatives and any policy that even mildly considers factors based on race, sex, religion and disability. But laws safeguarding against discrimination were put in place for a reason. Rolling them back only brings about realities of a dark past. And if we have continued evidence of civil rights being violated, why make it harder for everyday Americans to find a remedy?
