Federal voting rights and employment statutes, as well as the Fair Housing Act, recognize the use of disparate impact to find discrimination in those areas, and Donald Trump would need Congress to rewrite such laws if he wants to do anything about that.
But regulations and what the administration likes to call “sub-regulatory guidance” that accept the use of disparate impact may be changed or scrapped by administrative action — as Betsy DeVos, the secretary of education, did last month when she did away with school discipline guidelines the Obama administration issued to curb the disproportionate punishment of black and brown schoolchildren.
In a report published ahead of that decision, the Education Department said disparate impact “may lead schools to adopt racial quotas or proportionality requirements.”
This same attitude is likely what drove the Department of Housing and Urban Development, under Secretary Ben Carson, to reconsider a 2013 rule that set up a standard for how to impose liability for housing practices that had a disparate impact on minorities. The rule revision is still pending, but in 2017, the Treasury Department told HUD that disparate impact assessments could be illegal and disrupt the insurance industry.
What the Trump administration is doing is nothing new. Republicans and conservative legal theorists have long set their sights on the disparate impact principle, claiming that the only true evil that needs to be rooted out under the law is intentional discrimination. To the Reagan Justice Department, disparate impact was a “rhetorical misappropriation” of the word “discrimination” — a “contrived theory” that only perpetuates injustice and inequality.