Disparate impact theory claims that a facially neutral practice that nevertheless has a disproportionate negative effect on a protected group constitutes invidious discrimination. This is distinct from differential treatment discrimination, which means discriminating against people because of a protected characteristic. To put it simply, attempts to combat differential treatment discrimination focus on equality of opportunity, whereas efforts to combat disparate impact discrimination focus on equality of outcome.

Gail Heriot, a professor at the University of San Diego Law School and a member of the U.S. Commission on Civil Rights (USCCR), convincingly argued in her statement accompanying the USCCR’s 2013 report on the EEOC’s invocation of disparate impact theory to limit the use of criminal background checks in hiring that Congress never intended for Title VII.

The Supreme Court first permitted the use of disparate impact theory in Griggs v. Duke Power Co., 401 U.S. 424 (1971). The Court held that Duke Power Company’s requirement that applicants for particular jobs either possess a high school diploma or pass an intelligence test violated Title VII because it disproportionately excluded blacks and was insufficiently job-related. Disparate impact theory has remained controversial since that 1971 decision. More recently, however, the Obama Administration has used disparate impact to re-cast non-protected classes—for example, felons—as falling within the protections of Title VII because those non-protected characteristics are disproportionately shared by people who belong to preferred protected classes.

Title VII was the first statute interpreted to prohibit facially neutral practices that nevertheless had a disparate impact, but alas, it was not the last. The Department of Education’s Office of Civil Rights Enforcement (OCR) is particularly enthusiastic about interpreting Title VI to prohibit disparate impact discrimination. In October 2014, OCR issued guidance in the form of a “Dear Colleague” letter regarding the distribution of school resources. The guidance interprets racial disparities in the availability or utilization of resources, such as advanced courses, extracurricular activities, technology, and funding, as invidious racial discrimination even when those disparities are not the result of racially disparate treatment, but rather of facially neutral policies. This guidance sets the stage for unprecedented federal interference in local schools. The guidance is discussed in more detail in a recent article I wrote for Engage.