DOJ Scraps Disparate Impact, Hurting Black America

By Darius Spearman (africanelements)

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The U.S. Justice Department has made a significant shift in civil rights enforcement. On December 9, 2025, the department under the Donald Trump administration scrapped its long-standing “disparate impact” rules (wikipedia.org). This rule was a powerful tool for challenging policies that have racist effects, even if they seem neutral. Now, the DOJ will prioritize cases that show a clear intent to discriminate. Civil rights organizations argue this move weakens protections for Black communities and other marginalized groups. It makes challenging harmful policies in housing, employment, and education much harder.

To grasp the weight of this decision, it is important to look at the history behind the headlines. The idea of disparate impact did not appear out of thin air. It grew out of the Civil Rights Movement as a way to fight subtle, modern forms of discrimination. Without it, many of the systemic barriers that hold back Black communities could become nearly impossible to tear down. This policy change reopens old wounds and threatens decades of progress toward equality.

Understanding Systemic Discrimination

To see why this policy shift matters, one must first understand systemic discrimination. It is not about a single person’s prejudice. Instead, it refers to patterns of discrimination that are baked into the policies and practices of institutions ((ohrc.on.ca), (researchgate.net)). These rules can seem neutral on the surface. However, they create and continue disadvantages for certain groups (ohrc.on.ca).

Systemic discrimination is a quiet force that works across many areas of life. It can be found in hiring practices, housing regulations, school discipline, and the justice system (ohrc.on.ca). Because it is part of an organization’s normal operations, it often works without any single person having a hateful motive (ohrc.on.ca). Therefore, challenging it requires looking at outcomes and effects, not just searching for an individual’s bad intentions.

The Birth of Disparate Impact

The legal tool of disparate impact has its roots in the landmark Civil Rights Act of 1964 (house.gov). Title VII of the act outlawed employment discrimination based on race, color, religion, sex, or national origin. While the law made it illegal to “discriminate,” it did not spell out if this meant only intentional bias. Federal agencies, especially the Equal Employment Opportunity Commission (EEOC), started to interpret the law to also cover discriminatory effects (eeoc.gov). The EEOC is the federal agency responsible for enforcing civil rights laws in the workplace (eeoc.gov).

This idea was cemented in the 1971 Supreme Court case Griggs v. Duke Power Co. (northcarolinahistory.org). The case involved a North Carolina company that required a high school diploma and passing scores on two intelligence tests for jobs outside its lowest-paying department. Historically, Black employees had been confined to that department. The Supreme Court ruled unanimously that these requirements were illegal. The court found that even if the policy was not intended to be racist, it disproportionately harmed Black workers. Furthermore, the company could not prove the requirements were a reasonable measure of job performance (northcarolinahistory.org).

This ruling was groundbreaking. For the first time, people could challenge a policy based on its discriminatory consequences. They did not have to prove discriminatory intent (northcarolinahistory.org). The burden then shifted to the employer. The employer had to prove the practice was a “business necessity,” meaning it was essential for the safe and efficient operation of the business (michbar.org).

Disparate Impact vs. Disparate Treatment

The legal system recognizes two main types of discrimination. The first is disparate treatment, which is intentional discrimination (coffieldlaw.com). To prove disparate treatment, a person must show that an employer or other entity had a discriminatory motive for their actions (wikipedia.org). For example, if a manager states they will not hire Black people, that is direct evidence of disparate treatment (coffieldlaw.com).

Disparate impact is different. It focuses on the outcome of a policy, not the intent behind it. A policy is considered discriminatory under this theory if it has a disproportionately negative effect on a protected group, like Black Americans (uslegalforms.com). The policy may appear neutral, but its result is what matters. The Griggs v. Duke Power case is a classic example. The diploma requirement seemed fair, but its effect was to lock Black workers out of better jobs without a valid business reason (northcarolinahistory.org).

Expanding Civil Rights Protections

After the Griggs decision, the disparate impact theory grew to cover more than just employment. It became a vital tool in the fight for fair housing. The Fair Housing Act of 1968 was passed to end residential segregation (britannica.com). This legislation was heavily influenced by the Kerner Commission Report. That report famously warned that the nation was “moving toward two societies, one black, one white—separate and unequal” due to white racism (britannica.com). Courts consistently ruled that the Fair Housing Act allowed for disparate impact claims (wikipedia.org). The Supreme Court finally confirmed this in a 2015 case, stating that such claims were essential to achieving the law’s goal of ending segregation (wikipedia.org).

The theory was also applied to Title VI of the Civil Rights Act. This part of the law prohibits discrimination by any institution that receives federal money, including schools and universities (congress.gov). Federal agencies used disparate impact to challenge policies that harmed students of color. However, the Supreme Court later ruled in Alexander v. Sandoval that private individuals could not bring disparate impact lawsuits under Title VI; only the federal government could (scotusblog.com). A private claim is a lawsuit brought by an individual, while a government claim is pursued by a federal agency (wikipedia.org).

The New Shift to Intentional Discrimination

The Trump administration’s DOJ rule, issued on December 9, 2025, reverses this long-standing approach for its Title VI enforcement (wikipedia.org). The department stated it would now focus on intentional discrimination, effectively abandoning disparate impact. Proponents of the change argue that disparate impact has been misused. They claim it undermines the principle that all people should be treated equally under the law (americafirstpolicy.com).

Attorney General Pam Bondi, who was sworn in on February 5, 2025, and Assistant Attorney General Harmeet Dhillon, confirmed on April 3, 2025, have been key voices supporting this shift ((congress.gov), (ballotpedia.org), (jns.org), (wikipedia.org)). They argue that disparate impact analysis forces organizations “to make decisions based on race” to avoid lawsuits over statistics (americafirstpolicy.com). The DOJ’s legal position is that the disparate impact approach, which was added by regulation, was never truly “part of the law” of Title VI (justice.gov). This perspective holds that civil rights laws were meant to stop intentional bigotry, not penalize groups for unintentional outcomes (americafirstpolicy.com).

The Impact on Black Communities

Civil rights groups strongly oppose this policy change. They argue that requiring proof of clear intent to discriminate sets an impossibly high bar for victims (allvoices.co). Much of the discrimination that Black communities face today is not openly hostile. Instead, it is embedded in policies that seem neutral. Disparate impact was designed to address precisely this kind of hidden bias. Without this tool, many forms of systemic racism will be allowed to continue unchallenged.

The consequences will be felt across many sectors. In housing, it will be harder to fight exclusionary zoning laws, which are local rules that limit affordable housing and often keep minority families out of certain neighborhoods ((masterclass.com), (wikipedia.org)). It will also be harder to challenge biased lending practices. For example, a 2012 study found that Black borrowers were far more likely to receive subprime loans, which have higher interest rates, even when their credit was good (investopedia.com).

Threats to Fairness in Jobs and Schools

The damage extends to employment as well. Companies increasingly use hiring algorithms, which are computer programs that screen job candidates (recruitics.com). Although they are supposed to be unbiased, these algorithms can perpetuate discrimination if they are trained on biased data from the past (vidcruiter.com). Without disparate impact, it becomes much harder to challenge an algorithm that screens out qualified Black applicants based on neutral-sounding criteria. For years, the EEOC has used a guideline called the “80 percent rule” to spot potential discrimination. This rule flags a hiring practice if the selection rate for a protected group is less than 80 percent of the rate for the most successful group (cornell.edu).

In education, the new DOJ policy could allow discriminatory school practices to continue. A classic example is school discipline. Data consistently shows that Black students are suspended at much higher rates than white students for the same infractions (dot.gov). Disparate impact has been a key tool for challenging these policies and forcing schools to find fairer alternatives. By focusing only on intent, the DOJ makes it harder to address the reality of racial disparities that harm Black children’s futures.

A Step Backward for Civil Rights

The Justice Department’s turn away from disparate impact is more than a simple policy adjustment. It is a fundamental shift in how America enforces its civil rights laws. For over 50 years, this legal theory has been a critical tool for fighting systemic inequalities that persist long after open bigotry became illegal. It gave communities a way to challenge policies that, by their effects if not their design, keep the doors of opportunity closed.

While the debate over disparate impact is not new, its removal from the DOJ’s Title VI enforcement toolkit marks a significant blow to the fight for racial justice. Civil rights advocates fear this change will dismantle crucial protections built over generations. Consequently, it leaves Black Americans and other marginalized groups more exposed to the subtle but powerful forces of systemic discrimination, undermining the long and difficult journey toward true equality.

About the Author

Darius Spearman is a professor of Black Studies at San Diego City College, where he has been teaching for over 20 years. He is the founder of African Elements, a media platform dedicated to providing educational resources on the history and culture of the African diaspora. Through his work, Spearman aims to empower and educate by bringing historical context to contemporary issues affecting the Black community.