When new U.S. Rep. Alexandria Ocasio-Cortez was asked on “60
Minutes” whether she thinks President Donald Trump is a racist, she responded
with the candor that makes her a compelling force in Washington:
“Yeah, yeah, no question.”
This, of course, lit up the social media, with Trump
supporters denouncing Ocasio-Cortez and progressives praising her. One would
think after his dog-whistle, race-bait politics — from slurring immigrants to
slandering a Hispanic judge to embracing the racist marchers in Charlottesville,
Va., to denigrating Haiti and African nations as “s— hole countries” — that the
question had been answered long ago.
What is clear is that, whatever the president’s personal
views, the Trump administration is intent on weakening enforcement of civil
rights laws across the board. The same week that Ocasio-Cortez spoke, two
widely respected reporters from the Washington Post, Laura Meckler and Devlin
Barrett, reported that the Trump administration is taking the first steps
toward rolling back a centerpiece of civil rights enforcement: the doctrine
that starkly disparate impact can provide evidence of discrimination even without
proof of intent.
If a government contractor announces that it won’t hire
anyone who is living with someone of the same sex, the victims may not be able
to provide direct evidence that the employer intended to discriminate, but
the disparate impact of the announcement would provide the basis for finding
discrimination. Disparate impact isn’t dispositive. Those accused can
demonstrate that they have a rational reason for the regulation or action and
that there are no less discriminatory alternatives.
In some areas, like election law, disparate impact is written
in the legislation itself. In most areas, however, it derives from regulations
on enforcing the 1964 Civil Rights Act, particularly Title VI which bars
discrimination based on race, color or national origin by entities, including
schools that receive federal funding.
In 2014, as Meckler and Devlin report, the Obama administration
formally put public school systems on notice that they could be found guilty
of racial discrimination if students of color were punished at dramatically
higher rates than white students. Trump’s Education Department issued a report
criticizing the regulation and has begun discussions about rescinding it.
This assault on a centerpiece of civil rights enforcement
comes on top of Trump’s stunning reversal of civil rights enforcement across
Under Jeff Sessions, the Trump Justice Department
essentially abandoned the Obama effort to work with police departments to address
systemic racially discriminatory police practices. Sessions directed the
Justice Department to stop defending affirmative action programs and start
enforcement actions against them.
The administration rolled back protections for transgender
students, while banning transgender people from the military. The Justice Department
chose to defend a discriminatory Texas voter ID law, which a district court
later ruled was passed with discriminatory intent. In department after
department, the administration has sought to weaken civil rights divisions and
cut their budgets.
As head of the Consumer Financial Protection Bureau, Trump’s
acting chief of staff Mike Mulvaney gutted the unit responsible for enforcing
anti-discriminatory lending laws. This list can go on.
Is Donald Trump personally a racist? Whatever your conclusion,
Trump surely campaigned by trying to stoke racial fears and divisions.
And this administration is the most hostile to civil rights
and to equal justice under the law than any since the passage of the Civil
Rights laws. Trump’s defenders insist that the president objects to being
called a racist, that he signed the recent legislation rolling back some of the
discriminatory sentencing practices, and that he happily has his picture taken
with African-American children.
But the record of his administration is clear, and the
disparate impact of the measures it has taken provides compelling evidence of