Last year, the Trump administration took two major steps to limit the use of disparate impact analysis—the legal standard by which organizations can be held liable for unintentional discrimination. First, in April, President Trump signed an executive order, “Restoring Equality of Opportunity and Meritocracy,” which directed the government to eliminate disparate impact liability “to the maximum degree possible,” deprioritize enforcement of statutes relying on disparate impact liability, and “repeal or amend” regulations relying on disparate impact liability. That was followed in December by a final rule from the Justice Department eliminating disparate impact liability under Title VI of the Civil Rights Act of 1964. These developments have not received much attention in education circles but should, given their implications on school discipline. Here’s a primer on what came before with disparate impact and what the current changes mean now.

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.”

These requirements were handed down via the notorious vehicle of a “Dear Colleague” letter (DCL), completely bypassing the notice-and-comment rulemaking process. School districts got the message and quickly began adopting policies designed to reduce suspensions and avoid onerous investigations by the Education Department’s Office for Civil Rights. One of the most widely adopted was restorative justice, a model that is supposed to emphasize mediation, dialogue, and reconciliation rather than traditional punishment.

Teachers, who stand at the front lines of dealing with dangerous behavior, said these policy shifts made it difficult to maintain order and safety (see “Restorative Justice Didn’t Deliver. Why?” features, Vol. 26 No. 1). In response to these concerns, Secretary of Education Betsy DeVos rescinded the DCL in 2018. This was followed by the Biden administration reinstating the policy in 2023, which was then followed by the Trump administration reinstating the rescission.

How will Trump’s changes affect schools?

For now, the Trump administration’s actions offer school districts a measure of relief. Administrators no longer have to fear intrusive federal investigations for having insufficient hot spots or suspending students who engage in violent or seriously disruptive behavior. That change may allow schools to restore greater order and clarity in their disciplinary policies.

But the deeper problem remains. Over the past decade, federal education policy on disparate impact has swung back and forth with changes in administration, leaving schools caught in a cycle of regulatory whiplash. The only long-term solution is clearer enforcement of statutory and constitutional limits by the courts. If federal agencies continue to stretch those statutes beyond what the Supreme Court has said they mean, the judiciary will ultimately have to hold them accountable. Without that judicial discipline, the cycle of reinterpretation and reversal will continue, leaving schools, teachers, and students subject to shifting federal mandates rather than stable law.

Joshua Dunn is executive director of the Institute of American Civics at the Baker School of Public Policy and Public Affairs at the University of Tennessee, Knoxville.

This post was originally prepared as a Conservative Education Reform Network explainer for the American Enterprise Institute.