CIVIL RIGHTS UNDONE

In late 2020, even as the instigators of insurrection were marshaling their followers to travel to Washington, D.C., another kind of coup-a quieter onewas in the works. On December 21, in one of his departing acts as attorney general, Bill Barr submitted a proposed rule change to the White House. The change would eliminate the venerable standard used by the Justice Department to handle discrimination cases, known as "disparate impact."

- Vann R. Newkirk II

The memo was quickly overshadowed by the events of January 6, and, in the chaotic final days of Donald Trump's presidency, it was never implemented. But Barr's proposal represented perhaps the most aggressive step the administration took in its effort to dismantle existing civil-rights law.

Should Trump return to power, he would surely attempt to see the effort through.

Since the legislative victories of the civilrights movement in the 1960s, legal and civil rights for people on the margins have tended to expand. The Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968 were followed by voting provisions for Indigenous people and non-English speakers, a Supreme Court guarantee of the right to abortion, increased protections for people with disabilities, and formal recognition of same-sex marriage. The trend mostly continued under presidents of both partiesuntil Trump. Though his administration could be bumbling, the president's actions matched his rhetoric when it came to eroding civil-rights enforcement.

Under Trump, the Justice Department abandoned its active protection of voting rights. The Environmental Protection Agency ignored civil-rights complaints.

The Department of Housing and Urban Development scaled back investigations into housing discrimination. Trump's appointees to the Supreme Court, for their part, have whittled away at landmark civilrights legislation and presided over the end of affirmative action.

In a second term, the most effective way for Trump to continue rolling back protections would be to dismantle disparate-impact theory. Under the theory, the federal government can prohibit discriminatory practices not just in instances of malicious and provable bigotry, but also in cases where a party's actions unintentionally affect a class of marginalized people disproportionately.