Editors at National Review Online praise one of President Trump’s most recent executive actions.
In January, a Trump executive order targeting “diversity, equity, and inclusion” (DEI) initiatives repealed racial preferences in federal operations going as far back as 1965. Wednesday, he was at it again, issuing another executive order declaring it “the policy of the United States to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible to avoid violating the Constitution, Federal civil rights laws, and basic American ideals.”
The Civil Rights Act banned discrimination “because of” race, sex, and other prohibited characteristics. That language was written, intended, and understood at the time to outlaw intentional discrimination. Practices that had a dramatically unequal outcome on different groups might be supporting evidence of intentional discrimination, but nothing in the statute made it a substitute for proving discrimination. Other statutes written in that era, such as the Age Discrimination in Employment Act of 1967 (ADEA) and the Fair Housing Act of 1968 (FHA), contained similar language.
As Justice Clarence Thomas has observed, “The author of disparate-impact liability under Title VII was not Congress, but the Equal Employment Opportunity Commission (EEOC).” The EEOC’s leaders felt that Congress had passed a “compromise” statute and that, through “creative interpretation,” it could be expanded to reach any practice that produced unequal outcomes. Deference to the EEOC’s position led the Supreme Court to adopt the disparate impact theory under Title VII in 1971, and later to engraft it upon the ADEA and the FHA, the latter in a 5–4 decision in 2015 from which Thomas, Justice Samuel Alito, and Chief Justice John Roberts all dissented. Trump’s executive order quotes the chief justice’s own words in another case: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
The Court is no longer so deferential to agency interpretations of the law — and may soon be asked to decide whether it must defer to a former agency position the executive branch has abandoned.
