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 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 the government.
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 its intent.