Parting Blow to Fair Federal Funding

According to The New York Times and The Washington Post, the Department of Justice (DOJ) is trying to do away with the disparate impact rule when it comes to federal funding approvals in the last days of the Trump administration.  

The DOJ has reportedly submitted for presidential approval a change to how it enforces Title VI of the Civil Rights Act 1964, which prohibits recipients of federal funding for schools, housing, and other programs from discriminating on the basis of race, color, or national origin. (“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d). Instead of the DOJ enforcing the law’s protection where a program or practice has a “disparate impact” on minority groups, the amended rule would only protect against intentional acts of discrimination.

According to civil rights groups, the disparate impact rule has been cited by as one of the most important protections of the law, as it includes practices or policies that may initially appear neutral but end up disproportionately impacting certain minority groups. For example, the protections against disparate impact were vital to the U.S. Department of Education’s investigation into disproportionate discipline rates among Black and Latino students in schools. However, the Department of Education recently rescinded guidance on school discipline, suggesting that they will no longer enforce disparate impact liability.

English-only policies have often been overturned based on the disparate impact rule and there is a lot of money at stake—in FY2020, the federal government delivered almost $750 Billion in grants (“federal financial assistance”) to private and public sector companies and agencies.

According to The Washington Post, the Trump administration had considered adopting the change for years but submitted it with just days to go until the inauguration of President-elect Biden. 


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