EDITORIAL: Trump is right. Group disparities aren’t proof of discrimination
The Trump administration is pushing to judge people by their character, not skin color. That’s long overdue.
From 2014 to 2020, around 75 percent of players in the National Football League were Black. Fewer than 2 percent were Hispanic. Around a quarter were white. These demographics didn’t match the racial makeup of the country. In 2020, Black Americans constituted 12.1 percent of the population. White people were almost 58 percent, while the Hispanic population was 18.7 percent.
Imagine the federal government suing the NFL for racial discrimination because of these disparities. It would be absurd. The NFL is extremely competitive, and the hunt for talent is relentless. These racial disparities are a byproduct of judging players based on their skills — in this case, football ability.
But that’s analogous to the legal theory that the federal government has used for years to accuse other organizations of racial discrimination. This is called “disparate impact analysis.” It contends that a racially neutral policy with racially unequal outcomes can be racially discriminatory. The U.S. Supreme Court signed off on a version of this theory in its 1971 case Griggs v. Duke Power.
Federal officials have used “disparate impact analysis” to go after organizations including banks, police departments and schools. They didn’t need to find even a single instance of racial discrimination. Simply finding a disparity was enough to bring down the federal hammer.
President Donald Trump has moved to change this.
“It is 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,” he wrote in an April executive order.
The movement behind using disparate impact such as this seeks “to transform America’s promise of equal opportunity into a divisive pursuit of results preordained by irrelevant immutable characteristics, regardless of individual strengths, effort or achievement,” he said in the order.
The Trump administration is acting on this premise. The Justice Department has been dismissing cases against companies and government agencies that rested on this theory.
This is the same view that led former Clark County School District. Superintendent Jesus Jara to cut back on school discipline. He was upset about the disproportionate number of Black students who were suspended. The subsequent push to reduce racial disparities in discipline had disastrous results. This is one example of why the focus should be on individual actions, not group outcomes.
The only way to end racial discrimination is to stop racially discriminating, as Supreme Court Chief Justice John Roberts has pointed out. By ending the use of disparate impact — and putting the focus on individual actions and merit — Mr. Trump is taking a step to toward doing just that.