I’M TOLD THE TRUMP ADMINISTRATION IS FOCUSED ON DISMANTLING DISPARATE IMPACT LIABILITY: That’s great! My advice is to focus first on demolishing the argument that Title VI’s regulations impose disparate impact liability on federal funding recipients. No, they don’t, and if they do, they are beyond the scope of the power of any executive branch agency. Once they’ve gotten that far, it may be easier to persuade the Supreme Court that disparate impact liability as first applied in Griggs v. Duke Power Co. (1971) was wrongheaded from the start and needs to be ditched. It has caused harm to everyone. A good rule of thumb is that a legal doctrine that presumptively outlaws everything can’t be good.
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