A new ruling from the Department of Education (DOE) says that it will not accept “disparate impact analysis” alone as evidence of discrimination in school contexts. DOE isn’t the first department to make this change under the Trump administration. But it may be the most important one—for America’s children and for the nation.
On July 23, the Office for Civil Rights in the DOE announced that they are “rescinding several disparate-impact provisions” from the regulations dealing with Title VI of the 1964 Civil Rights Act. The announcement explains in plain English what this means: “Disparate-impact provisions allow demographic data alone to establish that a school violated federal civil rights laws, even if there is no facially discriminatory policy, practice, or discriminatory intent involved.”
In other words, if statistics show that one group does much better or much worse than others under a given policy, that policy is assumed to be discriminatory without any other evidence that either the policy or the policymakers were intent on discriminating.
Disparate impact analysis became an established legal doctrine after the 1971 Griggs v. Duke Power case, in which the Supreme Court ruled that the defendant’s requirement that prospective employees pass two intelligence tests or get a high school diploma for initial employment or to transfer into jobs within the company was discriminatory because black applicants were much less likely to have a diploma and scored far worse on the cognitive tests on average—despite the fact that there was no evidence that the company was doing so in order to discriminate.
As the official rule records, this kind of reasoning found its way into education policy in 1979 when the Department of Health, Education, and Welfare (HEW) established its Guidelines for Eliminating Discrimination and Denial of Services on the Basis of Race, Color, National Origin, Sex, and Handicap in Vocational Education Programs, which were then adopted the next year by the HEW’s successor agency, the Department of Health and Human Services, and the brand-new Department of Education.
Disparate impact analysis has been used consistently all through American society ever since then. Rather than tamping down racial discrimination, it has been the engine of pushing almost every part of society to make decisions about policies based on percentages. These decisions, made to avoid lawsuits, are usually to the detriment of society as a whole and the minorities that are supposedly benefiting. In 2025, conservative lawyer and commentator Heather Mac Donald summarized the rather dire results of 55 years of disparate impact doctrine:
“It has been used to invalidate literacy and numeracy standards for police officers and firemen, cognitive skills and basic knowledge tests for teachers, the use of SATs in college admissions, the use of grades for medical licensing exams, credit-based mortgage lending, the ability to discipline insubordinate students, and criminal background checks for employees and renters. It has been used to eliminate prosecution for a large range of crimes, including shoplifting, turnstile jumping, and resisting arrest; to end police tactics such as proactive stops (otherwise known as stop, question, and frisk); and to purge safety technologies like ShotSpotter and speeding cameras from police departments.”
Mac Donald was writing in celebration of President Trump’s Executive Order 14281, Restoring Equality of Opportunity and Meritocracy. Citing both “the limited enforcement resources of executive departments and agencies” and “the unlawfulness of disparate-impact liability,” the President directed in his policy that “all agencies shall deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability.”
Since then, many agencies have issued new rulings. The Justice Department did so in December 2025. The Education Department’s changes will have perhaps an even greater impact, however. As Mac Donald noted above, one of the big effects of disparate impact analysis has been to render school discipline almost impossible.
President Obama’s Education Department issued a 2014 “Dear Colleague” letter warning educators that statistical disparities in discipline were prima facie grounds for holding schools guilty of discrimination. Evidence gathered from academic studies and teachers showed that the results of reforms based on such guidance did not work.
This might have been predicted, given that schools pursuing such policies based on “racial equity” even before the 2014 letter created chaos. Katherine Kersten’s 2017 article “No Thug Left Behind” detailed how the St. Paul, Minnesota, public schools created “violence and chaos” well before Barack Obama’s DOE pushed everyone to adopt the line of thinking. Thankfully, the first Trump administration rescinded this Obama-era guidance.
The responses to this newest rule change have been predictable. While one might have some sympathy with the way the rule change was enacted without a comment period, the critics are simply opposed to reversing this long-held tool for accusing others of discrimination without proof and getting their preferred policy changes.
Sixty “civil rights” and advocacy organizations, including the Southern Poverty Law Center, released a statement condemning the rule change. “Today’s action has no basis in law or morality,” they wrote, “and is further evidence that this administration is determined to undermine our laws, abandon civil rights enforcement, and deny the existence of systemic discrimination.”
Barack Obama and Joe Biden’s director of the DOE’s Office for Civil Rights, Catherine Lhamon, took a similar stance: “For the federal government to announce that it will no longer consider particular kinds of discrimination to violate the law, that guarantees that no person will experience that discrimination, is an incredible diminution of the long-standing protection that Congress has guaranteed to all of us.”
Both the advocacy groups and Lhamon are begging the question. Assuming that any disparity between men and women or between racial and ethnic groups must be because of discrimination is the entire problem. Given that the “solution” to this assumed problem has been active, intentional discrimination against those deemed statistically “too successful,” it’s easy to see why Americans are tired of this act. Discrimination is unjust, ugly, and corrosive to society, no matter whom it targets—or whom it benefits.
In his executive order last year, President Trump quoted John Roberts’s 2007 Parents Involved in Community Schools v. Seattle School District No. 1 decision. In that case, involving the use of race as a tiebreaker for public school admissions, the chief justice wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Roberts was right. Disparate impact analysis in the absence of evidence of discrimination has been used to justify discriminatory behavior with the blessing of our government. No more.
David P. Deavel teaches at the University of St. Thomas in Houston. A past Lincoln Fellow at the Claremont Institute, he is a Senior Contributor at The Imaginative Conservative. Follow him on X (Twitter) @davidpdeavel.
