The Trump administration stands ready to fulfill a long-standing dream of insurance companies, big banks, and many conservative legal scholars: making it safe to enact policies that are neutral in theory, but that have unequal effects in practice.
On Thursday, The Washington Post reported that the administration intends to roll back regulations that bar discrimination on the basis of “disparate impact.” In particular, Trump officials have their eyes on regulations that prevent discrimination in housing. Housing and Urban Development Secretary Ben Carson has already pulled back on investigations into such matters.
The concept is relatively simple, but controversial: Disparate-impact regulations prohibit actions that have the effect of discriminating against particular groups, not just those that are intended to do so. Disparate-impact regulations make it possible to attack prejudice on a systemic scale rather than addressing individual acts alone. Less dramatic than a wall on the southern border and quieter than the travel ban, the reported effort to roll back such regulations across the federal government could have a profound effect on those groups and individuals historically denied opportunities simply because of their race or background. It is an approach consistent with the misguided belief that efforts to fight discrimination against historically marginalized groups, even mere accusations of prejudice, are worse than the prejudice itself.
Conservatives have long sought to eliminate disparate-impact regulations. In Donald Trump, a real-estate baron whose company was sued by the Justice Department for refusing to rent apartments to black people, they finally found an eager champion.
“The Trump administration has been systematically undermining civil rights and efforts to address racial discrimination,” said Vanita Gupta, head of the Leadership Conference on Civil and Human Rights and former head of the Justice Department’s civil-rights division under Obama. “Disparate-impact liability can uncover disguised discriminatory intent and/or unconscious prejudices. And unconscious bias can have the same effect as overt bias: It can undermine equal opportunity.”
Disparate-impact discrimination is not a simple question of discrete outcomes; on their own, divergent results do not prove discrimination. Rather, the regulations prohibit behavior that would discriminate if there are other ways to achieve the desired objective, or if there’s no valid interest being pursued. When the federal government alleges discrimination on the basis of disparate impact, such as in mortgage lending or homeowner’s insurance, it performs a regression analysis to prove that, all other things being equal, discrimination is at play. The idea is to prevent such regulations against discrimination from being gamed.
In the early 2000s, landlords in St. Paul, Minnesota, alleged discrimination on the part of the city, which had insisted that their apartments have basic amenities such as heat and pest control. Their claim was that the new regulations would drive up the cost of housing or put them out of business, which would have a disparate impact on their minority tenants. One civil-rights advocate called it a scheme to assert a “fundamental right under the Fair Housing Act to put minorities in crappy housing.” Financial institutions and insurance companies argue that the regulations make otherwise innocent or benign business decisions illegal, even when companies aren’t taking cynical advantage of them.
The Supreme Court ultimately issued a 5–4 ruling in a separate case upholding disparate-impact discrimination regulations under the Fair Housing Act, but the opinion was written by Justice Anthony Kennedy. He has since been replaced by Brett Kavanaugh, who angrily warned the left at his confirmation hearing that “what goes around comes around.” Opponents of disparate-impact rules might prevail, given a second day in a Trumpified high court. Without such regulations, illegal discrimination, even on a grand scale, is simply a matter of finding a plausible pretext.
“On-the-record discriminatory comments made by officials still happen, but are exceedingly rare,” said Kristen Clarke, executive director of the Lawyers’ Committee for Civil Rights. “The broader disparate-impact standard allows us to challenge and remedy policies that are seemingly benign but have a discriminatory effect on disadvantaged groups as a result of long-standing, historical, intentional discrimination.”
There are essentially two cases against disparate impact—one philosophical and one financial.
Conservative legal experts have long opposed disparate-impact standards wherever they have been applied, arguing that demonstrating discrimination should require proving malicious intent. Different outcomes, they argue, are simply reflective of different behaviors and capabilities. But intent can be difficult to prove, while effect can be drawn from public data. Without disparate-impact standards, governments and private institutions can discriminate as long as they successfully hide their intent to do so.
It’s the same logic that was on offer in the Supreme Court’s approach to the Trump administration’s ban on travelers from seven countries, five with Muslim majorities: Despite the president’s public statements displaying his intent to discriminate against Muslims, the final version of the executive order didn’t mention religion, and so according to the high court’s conservative bloc, the order wasn’t discriminatory.
As a young attorney in the Justice Department, the author of that opinion, Chief Justice John Roberts, opposed adding an “effects test” standard to the Voting Rights Act, despite the long history of state governments deploying superficially race-neutral voting devices designed to disenfranchise black voters. During the Obama administration, Senate conservatives tried to gin up a scandal over the Justice Department’s settling of housing cases that right-wing legal groups were hoping to bring to the Supreme Court, to give the justices the chance to scuttle the Fair Housing Act’s disparate-impact regulations. Trump’s education secretary, Betsy DeVos, has rolled back regulations designed to prevent schools from punishing black students more harshly than white students.
“At its worst, the intent standard reflects the comforting belief among too many that discrimination is perpetuated by villainous characters who use racial slurs, or at the very least the view that discrimination should only be deemed illegal if it emanates from the evil hearts and minds of perpetrators,” said Sherrilyn Ifill, director of the NAACP Legal Defense Fund. “More importantly, the effects standard reflects a recognition that acts that perpetuate discrimination are not cleansed simply by benign intentions.”
But there are also strong financial incentives at work here, particularly for the banking and insurance industries. Both industries have a history of discriminatory behavior that has profoundly shaped the character of American society—from banks not lending or offering subprime credit to black Americans to insurance companies simply refusing to offer their products to black customers or even to whites who lived in integrated neighborhoods (“incompatible racial groups,” in the Federal Housing Authority’s lingo).
For decades, those practices were embedded in American public policy, which explicitly upheld racial segregation. Throughout most of the 20th century, the federal government and private companies worked together to maintain segregation in the North and South, depriving millions of black Americans of the traditional route to wealth and prosperity while laying the foundation for a prosperous white middle class. The efforts to remedy that discrimination, compared with the scale of the harm done, have been timid and meager.
“Once de jure segregation was established, African Americans and whites were not affected similarly by subsequent race-neutral policies,” wrote Richard Rothstein in his history of segregation in housing. “Several seemingly ‘race-neutral’ programs have reinforced the disadvantages of African Americans that were initially created by race-conscious housing policy.”
After the 1960s, many of those discriminatory practices continued, and new ones developed as firms used technological advances to find new ways to discriminate—and to make money doing so. Disparate-impact regulations proved an effective tool for fighting discrimination in an era when it was—at least until recently—considered impolite to be overtly racist.
“The insurance industry has a long history of contributing to disinvestment and redlining in communities of color. Although some of its most egregious tactics have been curbed through litigation, including disparate-impact litigation, new practices are emerging,” said Clarke. “Elements within the insurance industry seem to believe that they have a profit interest in avoiding judicial scrutiny of their policies and practices.”
During the Obama administration, the civil-rights division of the Justice Department extracted heavy fines from firms such as Countrywide, Bank of America, and Wells Fargo for things such as charging minority borrowers higher rates than they were entitled to do and steering them into subprime loans, practices that contributed to the 2008 financial crisis. Similarly, insurance companies continue to charge customers who live in predominantly minority neighborhoods higher prices for home or car insurance. It is expensive to be poor, and it is expensive to be a person of color. It is particularly expensive to be both.
“There is a rather elaborate process for undoing regulations of this sort, and you can best believe that we do not intend to allow this without a fight,” said Ifill.
Rolling back disparate-impact regulations has two salutary effects, from the point of view of Trump and his allies: It makes things right in the world by ensuring that more white people are not unjustly accused of discrimination, and it helps the rich get richer by gouging those who are trying their best to make ends meet. Anyone who suffers from that probably has it coming: You should have been born white, or you should have been born rich. And if you’re neither? You probably didn’t vote for Trump anyway.