President Donald Trump’s Justice Department is making one final play to undermine civil rights protections before he leaves office later this month.
A draft document prepared by the DOJ and submitted for White House approval would greatly narrow the way the Department enforces regulations authorized by the Civil Rights Act of 1964, the New York Times reported Tuesday. The provision, Title VI, prohibits discrimination by any entities that receive federal funding or assistance, which includes schools, housing programs, and federal contractors.
Under the reported proposal, the Justice Department would no longer enforce the law in cases where “disparate impact” was found to result in discrimination. The doctrine prohibits recipients of federal funding from using practices that “have the effect, even if unintentional, of subjecting individuals to discrimination because of their race, color, or national origin,” according to the American Bar Association.
One high-profile recent example of the Justice Department’s usage of Title VI to pursue discrimination allegations was the Obama administration’s investigation of the Baltimore Police Department, which in 2016 found, among other things, that BPD “engages in a pattern or practice of using enforcement strategies that produce severe and unjustified disparities in the rates of stops, searches and arrests of African Americans.” As a result of the investigation, the city and the Justice Department later entered into a “consent decree” under which the city promised to undertake police reforms.
Although President-elect Joe Biden takes office in two weeks, he couldn’t immediately reverse the decision though the next Attorney General could at least delay the enforcement, according to the New York Times.
Civil rights advocates expressed alarm at the Justice Department’s move. Shiwali Patel, senior counsel of the National Women’s Law Center, tweeted that it was “unconscionable that the DOJ is trying to sneak in changes at the eleventh hour to weaken civil rights protections against racial discrimination.”
The move likely sets the stage for another court battle between liberal groups and the federal government at a time when conservative orthodoxy is dominant on the Supreme Court.
The DOJ’s action is yet another in a long line of Trump administration moves to roll back civil rights protections in nearly every area of the federal government, including education and housing. In the first two years of the administration Trump’s DOJ was prosecuting 60% fewer cases than former President Barack Obama’s DOJ, VICE News reported in 2019.
Though the DOJ memo reportedly says it would continue to enforce the law in cases of intentional discrimination, civil rights advocates said that’s not nearly enough to root out discrimination.
“Disparate impact analysis is important to create accountability at schools around the discriminatory effects of discipline policies, particularly since it’s difficult to prove racially motivated intent behind the policies,” Patel told the Times.