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Justice Dept. Proposal Could Roll Back Civil Rights Protections in Federal Programs

January 7, 2021

The Justice Department reportedly has submitted a document to the White House for approval that seeks to change how it enforces Title VI of the Civil Rights Act, which prohibits discrimination against recipients of federal funding on the basis of race, color, or national origin. The regulation could impact federal funding on housing programs as well as for schools and additional programs.

Under current rules, actions can be deemed discriminatory if they have a discriminatory effect—in other words, a “disparate impact”—on protected groups. But the proposal wants to deem actions discriminatory only if they can be proven to be intentional.

Critics argue that would mean cases showing patterns of discriminatory denial of government services, or disproportionate harm caused by government programs, could be dismissed. Such cases make up a significant portion of current discrimination lawsuits since most entities do not often purposely disclose they’re engaging in discriminatory practices, The New York Times reports.

The Justice Department document is quoted by media as saying the change to Title VI would “provide much needed clarity to the courts and federal funding recipients and beneficiaries.” The Justice Department says it allocates about $6 billion a year in grants or awards.

This proposal reportedly was submitted to the White House on Dec. 21. The document, however, has not been made available to the public for review or comment. The Justice Department notes that the proposal does not require public comment for final approval, citing an exception to the traditional review process. The Justice Department also has not released a public comment on the document.

If finalized, the regulation would affect rules for grants awarded by the Justice Department, which could then go on to influence a range of legal policies and practices in other agencies. But other agencies would be required to issue their own regulations to apply it to their grants.

Disparate impact has been a hotly debated topic in recent years. The term refers to the idea that a seemingly neutral practice can have a disproportionate effect on different groups, without a legitimate justification. In the case of government programs, this means a policy that either disproportionately excludes certain groups from a program’s benefits or inflicts disproportionate harm on certain groups.

Legal groups have already said they plan to challenge the new Justice Department regulations if approved by the Trump administration in its final days in office.

The change would be the first substantial amendment to how the Justice Department defines discriminatory behavior in Title VI since 1973, The New York Times reports.

The National Association of REALTORS® called on the Department of Housing & Urban Development earlier in 2020 to withdraw a proposed rule that at the time sought to amend the HUD interpretation of the Fair Housing Act’s disparate impact standard. HUD’s rule—finalized this fall—placed too heavy a burden on the ability for parties to bring legitimate initial disparate impact claims, NAR argued. In December, a federal court blocked the government from implementing the new rule.

“While there is debate… as to whether additional clarity is needed with respect to disparate impact claims, there is broad consensus across the country that now is not the time to issue a regulation that could hinder further progress toward addressing ongoing systemic racism,” 2020 NAR President Vince Malta said in a letter to HUD Secretary Ben Carson last fall on the controversial proposal. “We believe this is the time to explore how we may work together to eliminate unnecessary barriers to housing opportunity and advance policies that allow more Americans to fully participate in the American dream.”