What’s New
President Trump on Wednesday made it significantly more difficult for college students and employees to file complaints about systemic sexism and racism.
The president signed an executive order calling on the Office for Civil Rights and other federal agencies to end the use of disparate-impact liability — a legal concept that allows individuals to claim race-neutral and sex-neutral policies as discriminatory if they disproportionately harm certain groups or result in significant disparities.
“Disparate-impact liability is wholly inconsistent with the Constitution and threatens the commitment to merit and equality of opportunity that forms the foundation of the American Dream,” Trump wrote in the executive order titled “Restoring Equality of Opportunity and Meritocracy.”
“Under my Administration, citizens will be treated equally before the law and as individuals, not consigned to a certain fate based on their immutable characteristics.”
The Details
People of color and women have long claimed that race- and sex-blind practices, such as the use of credit screenings, criminal-background checks, or housing applications, can perpetuate discrimination and yield disparate statistics.
Colleges, for example, have been accused of using hiring practices that result in low representation of women and people of color among faculty.
Civil-rights lawyers say Trump’s executive order will make it more difficult for students and employees to file complaints with OCR over systemic discrimination without proof of intent.
“Executive orders like this are attacking the ability for all Americans to avail themselves to the civil-rights laws of our country. And I think that’s quite troubling and scary, especially in higher education,” Antonio Ingram, senior counsel at the NAACP Legal Defense Fund, said.
The Backdrop
In 2001, a conservative U.S. Supreme Court ruled in Alexander v. Sandoval that individuals can’t sue public agencies over racial disparities unless they can prove intentional discrimination.
After the Supreme Court ruling, OCR complaints became the prime venue for students and employees to accuse colleges of systemic discrimination. In 2024 alone, OCR received more than 23,000 complaints. (Last month Education Secretary Linda McMahon fired hundreds of employees in the office, meaning there are far fewer staff members to handle those complaints.)
“For 60 years, this has been the precedent that has guided the Office for Civil Rights and the Department of Justice in analyzing what constitutes racial discrimination and a violation of the Civil Rights Act for purposes of their investigation,” Miriam Nunberg, a former OCR attorney, said.
In her nearly 15 years with the agency, Nunberg said a majority of the complaints she handled involved disparate-impact violations.
“What I would see over and over and over again were examples of white students and Black students, or white students and Latino students who had engaged in almost identical behavior, where the Black and Latino students were given much more harsh penalties,” Nunberg said.
What’s Next
Both Nunberg and Ingram said the executive order will likely face legal challenges since disparate-impact liability is recognized under Title VI and was authorized by Congress in the Civil Rights Act of 1991. It would take an act of Congress or a Supreme Court ruling to undo legal precedent, civil-rights lawyers said.
“This is attempting to override the regulations which have been properly executed and have been around for a really long time,” Nunberg said. “This is a vast overstep.”
