Why It Matters
For decades, disparate impact allowed federal agencies to treat statistical disparities in outcomes as evidence of discrimination even when no discriminatory intent existed. In education policy, that approach pushed schools to change discipline policies and other practices to avoid federal investigations. The Trump administration’s changes shift federal civil rights enforcement back toward a focus on intentional discrimination, a move with significant implications for how schools maintain order and design policy.
What is disparate impact analysis?
Disparate impact originated in the Supreme Court’s 1971 decision Griggs v. Duke Power Co. In that case, the Court held that even when an employer clearly did not intend to discriminate, its hiring criteria could still violate civil rights law (Title VII of the Civil Rights Act of 1964) if they disproportionately excluded minority applicants. In short, it made employers liable for unintentional discrimination, moving the analysis from motive to outcome. Unequal outcomes on their own could signal discrimination.
What are the main criticisms?
From the beginning, Griggs and the disparate impact standard attracted criticism. Most important, it is difficult to square the idea with the rule of law, which requires that individuals know whether they are violating a law or rule before engaging in an action. Since an organization cannot know whether a policy will have a disparate impact ahead of time, it cannot know whether it is violating the law.
Additionally, the decision read into the Civil Rights Act an idea that had never been there before. When it was passed by Congress and signed by the president, discrimination meant only intentional unequal treatment. The Court has also held that proving discrimination under the Equal Protection Clause requires proof of intent, putting the Civil Rights Act in tension with the Constitution.
Overall, this shift untethered civil rights law from legal principles, statutory text, and constitutional doctrine.
Recognizing these issues, the Court narrowed disparate impact doctrine in the 1980s in cases like Wards Cove Packing Co. v. Atonio (1989). But in response, Congress codified disparate impact in employment law through the Civil Rights Act of 1991. That congressional action never fully applied to education policy, however. In fact, the Supreme Court in cases such as Alexander v. Sandoval (2001) explicitly held that Title VI, which prohibits discrimination by schools receiving federal funds, only applies in cases involving intentional discrimination.
How has it influenced education policies?
Nonetheless, the Department of Education under President Obama extended the doctrine into education through regulatory interpretation, implicitly in areas such as school finance, including access to Advanced Placement courses, Wi-Fi hot spots, and even graphing calculators (see “Civil Wrongs,” features, Winter 2016), but directly and most significantly in the Obama administration’s 2014 school discipline guidelines (see “Civil Rights Enforcement Gone Haywire,” features, Fall 2014). Those held that schools still “violate Federal law when they evenhandedly implement facially neutral policies” adopted with no discriminatory intent that “nonetheless have an unjustified effect of discriminating against students on the basis of race.”
