Washington, D.C. — This week, the White House issued a series of executive orders that distort civil rights protections, seeking to weaponize the law against the very communities it was designed to protect. The executive orders attack long-standing civil rights protections across employment, housing, and education by distorting the purpose of disparate impact liability—a critical legal tool that ensures fairness and accountability where discriminatory outcomes persist, even without explicit intent.
“These orders aim to destroy the foundation of civil rights protections in this country—to erode guardrails preventing discrimination in housing, lending, employment, education, healthcare, and other areas of life, and they will have a devastating effect on equity for Black people and other communities of color,” said Dariely Rodriguez, acting co-chief counsel at the Lawyers’ Committee for Civil Rights Under Law.
Through its order titled “Restoring Equality of Opportunity and Meritocracy,” the Trump administration wrongfully claims that disparate impact liability is unlawful, calls for immediate repeal of all Title VI “racial nondiscrimination” regulations that contemplate disparate-impact liability, directs agencies to assess pending investigations, lawsuits, and consent judgments that rely on disparate-impact liability and deprioritize enforcement of claims alleging disparate impact discrimination, and directs the Department of Justice to specifically target state laws, regulations, policies, or practices that relate to disparate-impact.
The Supreme Court first recognized disparate impact as a form of discrimination in 1971 and has since repeatedly upheld cases brought under the legal standard. Disparate impact liability is an essential tool that has been utilized for decades to enforce civil rights protections for individuals who are harmed by policies that appear neutral on their face but which are shown to erect barriers to opportunity for people from certain groups.
The Lawyers’ Committee for Civil Rights Under Law condemns the Trump Administration’s effort, through these orders, to take us back to an uglier era when discrimination was not just permissible, but routine.
In response to the executive orders other legal experts at the Lawyers’ Committee for Civil Rights Under Law released the following comments:
“Contrary to the president’s opinions, our civil rights laws, including disparate impact liability, ensure that individuals who are the most qualified and work hard have a fair shot,” said Katy Youker, director of the Economic Justice Project at the Lawyers’ Committee for Civil Rights Under Law. If not for disparate impact liability, employers could lawfully deny jobs to applicants of color based on any prior arrests, pay women less without regard to their job duties, and fire older workers based on age limitations, without having to show any business justification for these discriminatory policies. The president’s executive orders do not change the law upholding disparate impact as a form of discrimination, but they do expose a vision for America that predates the Civil Rights Movement.”
“Arbitrary zoning and land use policies and other race neutral practices by housing providers continue to deny Black people and other people of color the choice to live in communities where they are under-represented on one hand and force them out of communities they have lived for generations on the other,” said Brook Hill, senior counsel, Fair Housing and Community Development Project at the Lawyers’ Committee for Civil Rights Under Law. “Disparate impact liability is an important tool to ensure that all people have meaningful and equitable choices about where they are able to live.”
“In education, disparate impact has long been an essential framework for civil rights enforcement relating to disproportionate discipline, access to resources, over and under representation of students of color in special education, and many other areas,” said Michael Pillera, director of the Educational Opportunities Project at the Lawyers Committee for Civil Rights Under Law. “Numerous examples of important resolutions based on disparate impact exist on the Department of Education’s website.”
“In one such example, in 2016, the Department of Education’s Office for Civil Rights found that at one school district, out-of-school, in-school, and class suspensions for tardiness and/or truancy, were unjustifiably, disproportionately administered to Black students–though similarly situated to white students, Black students were 6.84 times more likely than white students to receive an in or out-of-school suspension for tardiness or truancy.”
Though its order titled “Reinstating Common Sense School Discipline Policies,” the Trump administration ignores established reality for Black students and other students of color, falsely implying that ensuring students are not discriminatorily disciplined based on their race is “DEI-based school discipline,” and requires new guidance and action from the Department of Education.
In September 2024, the Government Accountability Office found that Black girls received more frequent and more severe discipline in school than other girls. The Department of Education’s most recent Civil Rights Data Collection (CRDC) unequivocally shows what Black students and other students of color are disproportionately disciplined. Among other things, the CRDC data indicates:
- Black students represented 15% of total K-12 student enrollment, but 18% of students who were referred to law enforcement, and 22% of students subjected to school-related arrests.
- Black girls were nearly two times more likely to receive one or more in-school suspensions, one or more out-of-school suspensions, and expulsions than white girls.
- Black boys represented 8% of total K-12 student enrollment, but 15% of students who received one or more in-school suspensions, 18% of those who received one or more out-of-school suspensions, and 18% of those who were expelled.
“The order affirmatively embraces discrimination allowing unequal and unwarranted discipline for Black students and other students of color,” said Michael Pillera.
Through its order titled “Advancing Artificial Intelligence Education for American Youth,” the Trump administration directs resources towards forcing AI further into PK-12 schools and classrooms, unfettered by civil rights guardrails, which has the potential to exasperate any civil rights concerns raised by use of AI at an exponential level.
In November 2024, the Department of Education released guidance indicating that the nondiscrimination provisions of education federal civil rights laws apply to discrimination resulting from the use of AI. The guidance indicates that while AI technologies have the potential to enhance opportunities and increase educational equity for students, the growing use of AI in schools, including for instructional and school safety purposes, and AI’s ability to operate on a mass scale can create or contribute to discrimination.
”The order flouts this reality, previously acknowledged by the Department of Education, setting the stage for more rampant discrimination against Black students and other students of color in classrooms across the country,” said Michael Pillera.
Through its order titled “Reforming Accreditation to Strengthen Higher Education,”the Trump Administration deceptively links unfavorable college graduation rates and the rising cost of higher education to accreditation programs that promote diverse student and faculty populations among its member institutions. The order frames diversity, equity, and inclusion-based accreditation standards as “unlawfully discriminatory practices” through the misapplication of the SFFA v. Harvard decision, ultimately targeting accreditors who promote these American values with termination of their accreditation recognition, a threat to their very existence and their member institutions ability to qualify for federal funding.
Furthermore, section 3(b) of the order requires the recognition of new accreditation bodies and calls for the streamlining of the process to change accreditors so that member institutions or institutions applying for accreditation can essentially shop for their accreditation.
“Targeting accreditation standards is a calculated and systemic attempt to stifle inclusive practices, intellectual independence, and diverse enrollment at universities in a single stroke,” said Shatorah Roberson, senior policy counsel at the Lawyers’ Committee for Civil Rights Under Law. “This order transparently seeks to pressure universities into promoting the administration’s approved ideology under the vague banner of ‘intellectual diversity,’ threatening their accreditation if they do not comply. It’s a deliberate strategy to undermine thought leadership and institutional independence in higher education.”
The Lawyers’ Committee for Civil Rights Under Law stands ready to fight the aims of these orders inside and outside the courts to ensure that Black people and other people of color have the voice, opportunity, and power to make the promises of our democracy real.
