Anyone who follows the news knows about the flurry of executive orders passed down since the current administration took over on January 20, 2025. One order that has not gotten the attention it deserves is “Restoring Equality of Opportunity and Meritocracy,” signed on April 23.
One reason this excited little notice is that the order aims at a little-understood bureaucratic process dubbed “disparate impact.” It could have significant consequences.
A Simple Idea with Complex Consequences
The idea behind this cumbersome term is relatively simple. Regardless of its intent, a law, policy or rule has a disparate (or fundamentally different) impact if it affects one group more than another. For example, a school system might require passing a basic literacy test before entering high school. The intent would be laudable—to ensure that all high school students can read, speak and write in English. However, it would have a disparate impact on immigrant children, who might have a harder time passing such a test than children born in the United States. Based on disparate impact theory, such a policy risks being declared unconstitutional.
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The Executive Order describes disparate impact as the tool of “a pernicious movement” that seeks “to transform America’s promise of equal opportunity into a divisive pursuit of results preordained by irrelevant immutable characteristics, regardless of individual strengths, effort, or achievement.” The order’s text continues this idea, “holds that a near insurmountable presumption of unlawful discrimination exists where there are any differences in outcomes in certain circumstances among different races, sexes, or similar groups.” Those impacts, the left insists, need not be deliberate. They can exist “even if everyone has an equal opportunity to succeed.”
Instituted by the Supreme Court
Like many bad ideas, disparate impact was born of a Supreme Court decision. Griggs v. Duke Power Co. (1971) was a dispute over job qualifications. At the time, Duke Power employed many workers with relatively little education who acquired their skills on the job. However, promotion from an entry-level position required the applicant to possess a high school diploma.
Many employees believed that this requirement was unjust. They argued that possession of a diploma was irrelevant to the skills required to do the jobs in question.
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The Supreme Court agreed with the plaintiff-employees. The Court ruled that the requirement was not motivated by a “discriminatory intent” on the Company’s part. Even so, the requirement effectively discriminated against African-American employees because relatively few African-American adults had completed high school in the days of segregated school systems. Such discrimination, the Court found, violated the Civil Rights Act of 1964. “The Act,” Chief Justice Berger wrote, “proscribes not only overt discrimination, but also practices that are fair in form, but discriminatory in operation.”
Empowering Three Generations of Bureaucrats
The bureaucrats enforcing the Court’s ruling devised the term “disparate impact” to identify similar situations. Thus, a specific grievance in a single North Carolina power plant over a half-century ago came to govern corporations, schools, governments and other organizations nationwide. In the process, it placed massive power to enforce egalitarianism into the hands of those bureaucrats.
Evaluating the importance of the Executive Order, the National Association of Scholars (NAS) was blunt.
“Disparate impact was well intentioned, as a means to redress previous discrimination, but most Americans now realize that it has had terrible effects. Disparate impact theory degrades the foundations of Anglo-American law, including individual responsibility and the presumption of innocence. It also replaces individual competition on the grounds of merit with identity-group quotas. It furthermore is an engine of a too-powerful and arbitrary government.”
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The NAS listed four premises to substantiate its position. First, the scholars argue that human beings are fundamentally unequal, both by nature and by the effect of each person’s free choices. Second, only government intervention can achieve any equality of result, albeit inevitably imperfect. Third, every policy, plan or law will benefit some individuals more than others. Last, not even the government can correct all of the “infinity of inequalities” in the various contexts in which people carry out their many roles as individuals, spouses, parents, employees, neighbors, citizens, consumers etc.
Leftist Agony
Of course, those supporting disparate impact decry the Executive Order and its motivations. The New York Times emphasized its impact as “a core tenet used for decades to enforce the Civil Rights Act of 1964.” The Times writer Erica L. Green then went into attack mode, applying the language of racism. In her interpretation, the action “underscores how Mr. Trump’s crusade to stamp out D.E.I. [diversity, equity and inclusion]…is now focused not just on targeting programs and policies that may assist historically marginalized groups, but also on the very law created to protect them.”
Then, the article reinforces its author’s position by quoting Dariely Rodriguez of the Lawyers’ Committee for Civil Rights Under Law. “This order aims to destroy the foundation of civil rights protections in this country, and it will have a devastating effect on equity for Black people and other communities of color.”
Of course, the Executive Order is not as conclusive as the administration’s brave rhetoric indicates. Nor is it as cataclysmic as the left presents it. Griggs v. Duke Power remains very much in effect, and it isn’t easy to imagine the Supreme Court overturning it soon. Over fifty years of accumulated regulations and applied egalitarianism attest to the strength of the theory. Even if the disparate impact is abandoned, removing its legal barnacles would take years of dedicated scraping.
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Indeed, it may take years to overcome this legal pathogen endangering the body politic, but an accurate diagnosis is an important first step.
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