SHOT TO THE HEART OF DEI: How the Trump Admin Is Dismantling the Legal Basis for Government-Endorsed Discrimination

The Department of Justice under President Donald Trump just took a pivotal step toward removing government-endorsed discrimination from America’s legal system and undermining the institutional apparatus of critical race theory.

Critical race theory teaches that America is systemically racist and that even racially neutral policies are truly racist if they result in better outcomes for members of one race than for members of another. That’s the exact same logic as the legal theory known as “disparate impact.”

Cornell Law School defines disparate impact as a policy or rule “that seems neutral but has a negative impact on a specific protected class of persons.”

Government should strive to adopt policies that allow all Americans to flourish, regardless of race, but Democrat administrations have applied disparate impact theory to encourage “reverse” discrimination.

For instance, the Justice Department and the Department of Education under Presidents Barack Obama and Joe Biden issued guidance warning that if a school disciplines students of one race more than students of another race, that is evidence of racial discrimination, even if the school’s policy is race-neutral. It doesn’t matter if particular students cause more trouble than other students—what matters is the racial breakdown of who gets punished.

In one particularly revealing case, a woman sued the Alabama Department of Motor Vehicles, claiming disparate impact from the department’s requirement that people take the driver’s license exam in English. She said the English-only requirement had a disparate impact on people who don’t speak English, even though the road signs in Alabama are in English. While lower courts found in her favor, the Supreme Court struck down her claim in Alexander v. Sandoval (2001).

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Just as critical race theory teaches that American society is inherently racist against blacks and for whites, so the leftist reading of disparate impact theory finds fault with colorblind policies for their unintended consequences.

The Justice Department’s Office of Legal Policy released a memo Tuesday that restores sanity, however.

The DOJ Disparate Impact Memo

The Equal Employment Opportunity Commission, the agency tasked with preventing racial discrimination in employment, requested legal advice on disparate impact theory, and the DOJ responded with a far better approach to the law.

EEOC’s current disparate impact guidelines “are unconstitutional because they contemplate liability based on disparate effects alone, without regard to an employer’s likely intent, and pressure employers to engage in race-based decisionmaking,” wrote T. Elliot Gaiser, assistant attorney general for the Office of Legal Counsel.

Gaiser explained that if employers can demonstrate that the challenged policy “rationally serves a valid business practice,” that will constitute a valid response to a discrimination claim.

“Workplace requirements and selection procedures—such as background checks, aptitude tests, and SAT scores—are presumptively job-related,” he added. “Only irrational or arbitrary practices with no plausible job-relatedness can create disparate-impact liability.”

Finally, employees suing for disparate impact “must establish both that the challenged employment practice specifically caused the alleged disparate impact and provide evidence that an equally effective alternative practice causes less disparate impact.”

These guidelines represent a return to common sense. No longer can potential employees of certain races sue for discrimination if a firm refuses to hire them for failing aptitude tests. This undermines the “diversity, equity, and inclusion” movement that has pressured companies to hire and promote racial minorities, arguably at the expense of more qualified candidates.

Trump’s War on DEI

This important memo represents one more step in the Trump administration’s efforts to reject the DEI movement and restore sanity.

Trump signed an executive order “restoring equality of opportunity and meritocracy” in April 2025, rejecting disparate impact liability.

The EEOC moved to close most disparate impact cases by Sept. 30, according to an internal memo.

The Office of Legal Counsel memo is not a court filing, but it does represent the legal stance of the Justice Department on the issue.

Election Integrity and Disparate Impact

The memo also comes after the Supreme Court’s ruling in Louisiana v. Callais, where the court found that legislatures violate the law when they draw congressional redistricting maps on the basis of race. Justice Samuel Alito rejected a disparate impact argument in favor of racial redistricting.

This may bode ill for leftist arguments against voter ID requirements. In 2016, the U.S. Court of Appeals for the 5th Circuit struck down Texas’ voter ID law, finding that the law had a disparate impact on minorities.

Democrats have baselessly condemned the mere requirement of a legal ID to vote as an imposition of “Jim Crow 2.0,” claiming that it is more difficult for racial minorities to obtain a photo ID. According to the approach of the new DOJ guidance, a commonsense requirement that a person prove he is who he says he is in order to vote would not be presumptively unconstitutional due to some ridiculous claim of discrimination.

This guidance represents one more step toward restoring sanity after Democrat-led administrations imposed critical race theory via misreadings of the law.