Trump is restoring merit — by slaying rules that enforce reverse discrimination

Measured in Trump time, it took eons to announce — but the White House has finally taken the most important step it can to restore meritocracy to American society: eliminating disparate-impact theory from civil-rights analysis and enforcement.

Disparate-impact theory holds that if a neutral, color-blind standard of achievement or behavior has a disproportionately negative effect on underrepresented minorities (overwhelmingly, on blacks), it violates civil-rights laws.

It has been used in hundreds of cases, all across the country, to alter our society in profound ways.

Disparate-impact analysis has invalidated literacy and numeracy standards for police officers and firefighters in places like Durham, NC, and South Bend, Ind.

It has watered down cognitive-skills and basic-knowledge tests for teachers in New York City.

It has eliminated the use of SATs in many states’ college admissions, removed grades from a medical licensing exam, penalized credit-based mortgage lending, curtailed the ability to discipline insubordinate students and discouraged criminal-background checks for employees and renters.

Progressive district attorneys invoke disparate impact to stop prosecuting shoplifting, turnstile jumping, resisting arrest and other crimes; activists use it to rein in police tactics such as proactive stops (otherwise known as stop, question and frisk) and to purge safety technologies like ShotSpotter from police departments.

In none of those cases has it ever been demonstrated that the disfavored standard was implemented to exclude minorities from a position, opportunity or right.

The genius (if a diabolical one) of disparate-impact theory was that it obviated any need to show discriminatory intent on the part of a targeted employer or institution.

Discrimination was inferred simply by the effect of the color-blind standard, and by an institution or employer’s failure to devise an alternative standard on which minorities would do better.

Disparate-impact theory preserved the hegemony of the civil-rights regime long after the original impetus for that regime had all but disappeared.

One would be hard-pressed today to find any mainstream institution that discriminates against black Americans in admissions, hiring or promotion.

The reality, in fact, is the opposite: Every mainstream institution is desperate to hire and promote as many remotely qualified blacks as possible; it is white males who are disfavored and excluded from positions based on their skin color.

Disparate-impact analysis was the linchpin of the “systemic racism” argument, since the only present-day proof of racism in American society is the underrepresentation of blacks in the professions and their over-representation in the criminal-justice system.

Meantime, the real cause of disparate impact — yawning gaps in academic skills and crime — was kept assiduously offstage.

Now all that may be changing.

President Trump’s Executive Order of April 23, 2025, “Restoring Equality of Opportunity and Meritocracy,” sets out the policy of the United States to “eliminate the use of disparate-impact liability in all contexts to the maximum degree possible.”

To that end, it starts the process of repealing disparate-impact regulations accreted to the Civil Rights Act of 1964 by subsequent administrations and requires the cataloguing of state laws that impose disparate-impact liability.

Most momentously for law enforcement, the executive order initiates the review of federal consent decrees that rely on disparate-impact analysis (i.e., almost all of them), with the implied goal of dissolving those decrees. (A consent decree is a negotiated settlement, overseen by a judge and his representative, binding a government entity to an elaborate set of reforms.)

This will liberate police departments from a costly yoke of superfluous red tape — and will also defund the federal-monitor racket, whereby monitors earn millions of dollars declaring for years on end that the overseen police department has yet to comply punctiliously with hundreds of mandated reforms, often regarding paperwork.

Left-wing groups are understandably up in arms, charging the administration with a “fundamental shift in legal philosophy.”

True, but it was disparate-impact theory itself that constituted a radical departure from the premises of the Civil Rights Act of 1964.

The president has merely restored the 1964 law to its original understanding.

That pioneering legislation banned intentional discrimination.

Disparate-impact theory was a judicial amendment made six years later — because even in 1971, invidious intentional discrimination was too rare to satisfy the advocates.

The left complains as well that Trump’s executive order embraces a “formalist, color-blind conception of equality.”

Yes — and so does the Constitution.

But Trump must move quickly. His executive order can be reversed by a hostile successor.

Trump needs to persuade Congress to clarify that civil rights means freedom from discrimination. The legislature must amend 1960s-era statutes to confirm explicitly their original color-blind intent.

That will trigger a long-overdue debate: Is the United States still disfigured by systemic racism that requires the dismantling of meritocratic standards?

Or are we ready to live in a nation where we can be confident that the doctor who walks through an emergency room door is there because of his medical expertise, not his race?

Heather Mac Donald is the Thomas W. Smith Fellow at the Manhattan Institute and the author of “When Race Trumps Merit.” Adapted from City Journal.