For decades, the Supreme Court, Congress, and the White House all recognized that seemingly neutral policies can conceal unlawful discrimination, and victims of that discrimination still have a right to redress—even if the people behind the policies didn’t say the quiet part out loud.
In 1971, for instance, the Court unanimously recognized that Title VII of the Civil Rights Act prohibits not only overtly discriminatory job requirements, but also those that are “fair in form, but discriminatory in operation.” Congress reaffirmed that understanding in 1991 when it amended Title VII and explicitly empowered people to prove that an employment practice (like hiring and firing decisions) is unlawful by showing that the policy unnecessarily and disproportionately harms people based on a protected characteristic like race or sex. The executive agency charged with enforcing Title VII, the Equal Employment Opportunity Commission, has long incorporated disparate impact liability into its work.
On June 4, however, the EEOC updated its National Enforcement Plan to “eliminate the use of disparate impact liability theories” in its investigations and lawsuits. And on June 9, the Office of Legal Counsel, an arm of the Department of Justice that provides legal advice to the administration, published an opinion declaring that EEOC’s Title VII guidelines are unconstitutional.
The opinion declares that a given employer’s employment practices are “presumptively job-related,” and calls on the EEOC to require more “robust” and “demanding” proof from plaintiffs claiming otherwise. At the same time, the opinion directs the EEOC to set an “appropriately low threshold” for employers to defend themselves against disparate impact claims. Basically, keeping an unfair policy should be very easy, and changing it should be very hard.
According to the OLC, the EEOC rules and guidelines for implementing disparate impact liability need “updating” so that they focus on intentional discriminatory motivations, in order to “resolve the tension” between civil rights laws and “our colorblind Constitution.” To support that proposition, the OLC quoted the Supreme Court’s April decision in Louisiana v. Callais, which killed off the Voting Rights Act, and the Court’s order last week forcing Alabama to use an intentionally racist congressional map in the upcoming midterm elections.
The Trump administration has long recognized that the discriminatory power of the Supreme Court’s legal reasoning in cases like Callais can apply beyond polling places. In September 2025, for instance, the National Credit Union Association removed disparate impact liability from its “Fair Lending Guide,” making it easier for banks to get away with illegal redlining. In December 2025, the DOJ eliminated disparate impact liability from its regulations enforcing Title VI of the Civil Rights Act, giving law enforcement agencies that receive federal funding more leeway to harm people of color without consequence.
Encouraged by recent Supreme Court precedents, the administration is now taking even bigger swings. In May 2026, the Office of Management and Budget published a 430-page proposal for overhauling the regulation of federal funding awards from all federal agencies, including a prohibition on the use of federal awards to “promote or support disparate-impact liability.”
The OMB proposal defines disparate impact liability as a theory under which policies that are not explicitly discriminatory nonetheless give rise to “an automatic or near-insurmountable presumption of the existence of unlawful discrimination.” According to OMB, disparate impact liability “effectively mandates” discrimination and “incentivizes racial balancing.” The OLC made the same claims in its EEOC opinion this week, warning that disparate impact gives employers a “strong incentive to adopt racial quotas” to avoid liability for “racial disparities they did not create.”
Time and again, across agencies, the Trump administration insists that racial disparities caused by policies that do not explicitly mention race are the natural and correct result of a system working as it should. It regularly denigrates disparate impact liability as overly concerned with equality of outcomes rather than equality of opportunity. And it demands that facially neutral policies be left alone, lest statistical disparities become an excuse for racial engineering.
With one exception: Last week, the Department of Justice announced that it opened 15 new investigations into potential racial discrimination in medical school admissions. If the government’s previous investigations are at all representative, the policies these schools use are facially neutral: They account for socioeconomic status, for example, and call for a holistic review of applicants’ life experiences. But they do not require race-based decisionmaking or impose some kind of quota system.
These policies nonetheless aroused the administration’s suspicion, and the DOJ’s latest investigations provide a clue as to why. In a press release on Wednesday, it denounced University of California, Davis School of Medicine for its “contempt for the rule of law” and disregard for “the potential public health consequences of putting race over merit, skill, and competence.” The government’s primary evidence? That in 2024, Davis “became the third most racially diverse medical school in the country, behind only historically black universities.” In other words, there are too many Black people outside of the space specifically designated for Black people, so somebody must be breaking the law.
The Trump administration smears disparate impact liability as racial balancing and works to prevent its use as a legal theory when it may result in Black people getting jobs or mortgages. But it encourages actual racial balancing when a student body is not as white as Trump thinks it should be. This is not a real theory of law. This is just bigotry wearing the law’s trappings, privileging the groups Trump likes and harming the ones he does not.
