Trump’s Executive Orders, Culture Wars, and Civil Rights

0:00Tests like the SAT or the LSAT or many other standardized tests, they in fact do predict future outcomes. Not perfectly and not perfectly well for every individual applicant, but they are useful. So, you know, that's kind of the bind we're in, is that we have these tests that produce disparate outcomes, but they also are useful in other ways, which is why I think over time, universities that discontinued their testing requirements during COVID, they're going to bring them back as many already have started to.

0:39Pamela Karlan:This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I'm Pam Carlin. Please subscribe or follow this feed on your favorite podcast app. That way, you'll have access to all our new episodes as soon as they're available. One of the things that has happened over the last couple of months, and we're now about six months into the Trump administration, is a slew of executive orders, many of them executive orders that repudiate or reverse course on things that have been going on for decades or even centuries. And there I'm thinking a little bit of, among other things, the executive order on birthright citizenship.

1:22Pamela Karlan:But one of the areas of law where there has been the largest number of executive orders over a long period of time in civil rights is on how do we determine whether there's been discrimination or not, and what should we do about it. And so today I'm joined by my colleague, Rick Banks, who is the Jackson Eli Reynolds Professor of Law here at Stanford Law School, a professor by courtesy at the Stanford Graduate School of Education, and the founder and faculty director of the Stanford Center for Racial Justice, which aims really to confront and counter the polarization in American society that has infected issues involving race.

2:04Pamela Karlan:And where Rick has been, I think, for a long time, one of those people who is a little bit counterintuitive in his thinking on some of these issues and therefore really forces us all, I think, to think more about these things than we might otherwise have done. And that goes back even to the first of your work when you first entered the academy. And I think it's been kind of a through line of your work ever since. So today, what Rick and I are going to discuss is an executive order that the president issued calling called Restoring Equality of Opportunity and Meritocracy, which rejects a legal theory known as disparate impact that for more than half a century has been a key piece of anti-discrimination law in the United States.

2:52Pamela Karlan:So welcome to the podcast, Rick. Thank you, Pam. It's a pleasure to be with you. And you are so kind. Whenever I'm feeling bad, I will go to you for some put-ups. Oh, well, I am your biggest fan. Well, maybe not your biggest fan because you have so many, but a large fan. I'm a very large fan. Oh, well, thank you. So, disparate impact theory as a way of thinking about anti-discrimination law traces back to a case called Griggs Against New Power that was decided by the Supreme Court in an opinion by conservative Chief Justice Warren Berger in 1971. It was actually a case litigated by my old mentor and boss at the NAACP Legal Defense Fund, Julius Chambers.

3:36Pamela Karlan:But Rick, can you tell us a little bit about the case and what the Supreme Court did there? Thank you. And I think we need to try to understand this doctrine in his history because so much of the Trump administration, so many of the Trump administration's executive orders, you know, reject things wholesale that in fact should not be rejected wholesale and that have some virtues. At the same time, that's not to say that there are no vices involved in some of these doctrines. And that's the case with disparate impact. In the Grigsby Power Company case from 1971, the Supreme Court issued a landmark ruling that centered on this question of what the plaintiffs have to show in order to make out a claim of discrimination.

4:22The defendant was a North Carolina Duke Power Company, which prior to the passage of the law, the 1964 Civil Rights Act, had openly discriminated against African American employees. In short, the policy of the company was that white employees were eligible for the good jobs and black employees were not. In short, that was the policy. When the law passed at that time, the company had a policy in place where it would then assign people to jobs based on intelligence tests. And the people who scored high could get the good jobs and the people who didn't were consigned to the bad jobs. As it turned out, perhaps unsurprisingly, given the state of education for African-Americans in North Carolina in the 1950s and on into the 60s, the African-American applicants did not score well on these tests, so they filed a lawsuit.

5:13The Supreme Court held in that lawsuit that the requirements that the company had implemented, which was the IQ test, and there's also a diploma requirement that the company implemented, that those criteria could be challenged on the basis of the outcomes that they produce. So there didn't have to be a showing that the company had intentionally discriminated or enacted the policies precisely because they wanted to limit opportunities for Black employees. Merely the evidence of disparate outcomes was enough at the first step to allow the plaintiffs to get into court. Yeah.

5:54Pamela Karlan:So, I mean, one of the things that's interesting is, you know, in the abstract saying, would a company like people to have high school diplomas before they work for them doesn't seem invidious in any way. But of course, for years and years, the company had hired janitors who didn't have high school diplomas, had hired secretaries who didn't have high school diplomas and the like. And so, you know, one point that you make in a really great essay that you've written that we're going to make available to our readers on Stanford's website is you might think that disparate impact is a way of smoking out actual intentional discrimination.

6:34Pamela Karlan:That is, you put in place something that looks like a neutral rule, but in fact, it's designed to make it harder for members of minority groups or for women or someone else to get the job or get the benefit. And I think here, having a high school diploma a requirement, if you know that large numbers of black applicants aren't going to have one, and you adopt it, you might be doing it for just that reason. I mean, in that sense, it's a little bit like the old grandfather clause case, right, which said, you can vote if your grandfather could vote as of 1866. And it doesn't say anything about race, but we all know what that's about.

7:12Yeah. And this is one of the ironies, frankly, of the Trump executive order, because the executive order, it rejects disparate impact. And it's written as though the only purpose of disparate impact is to try to mandate equal outcomes across groups. The executive order starts and ends with that assumption that that's the only purpose. But of course, there's another purpose, which in fact is probably the central purpose, at least historically, that disparate impact was used to try to smoke out or redress covert forms of discrimination where we don't have obvious evidence of intent. And when you think about it, you know, that sort of discrimination, once the Civil Rights Act is passed in 1954, would probably become the dominant form of discrimination.

8:01Because institutions know they can't openly discriminate, so they might try to do so covertly.

8:06Pamela Karlan:Yeah, you meant 1964, I think. 1964, I hope I said that. No, you said 54. Oh, I'm sorry, no, 1964. 1954 was Brown, 1964. Yeah, years with fours in them sometimes have good stuff. Yes. But the irony of the Trump order is that, you know, the Trump administration and its attacks on higher education and other institutions has actually resorted to a sort of disparate impact or quasi disparate impact approach. Whenever the administration says, for example, you know, we think that people are discriminated against based on their ideology or conservatives are being banished from academia. And so we want the data.

8:47Whenever they start to ask for the data and they want to look at the outcomes, they're actually undertaking a disparate impact sort of analysis.

8:56Pamela Karlan:Yeah, it's a kind of Dr. Fell disparate impact for me, but not for the theory. Well, I don't know if it's unclear to what extent the administration officials realize this is what they're doing. Yeah. So, I mean, there's a whole lot of disparate impact where really it's a way of saying we're pretty sure that you wouldn't have this impact unintentionally. And so the fact that you now have this impact suggests that you actually desire to have it. Right. And the one other piece of that, of course, is that in order to make out a disparate impact claim, it has to also be the case that the employer doesn't have an important, legitimate, actual reason that they have the practice in place that's challenged.

9:47In other words, if the employer could show that the reason we have this particular testing requirement, say, in Griggs, is that the test has been shown to actually predict performance on the job, then the disparate impact claim will fail, right? Because then you might intuit that the employer is using the criterion because it's related to job success rather than because it eliminates people from the disfavored group.

10:15Pamela Karlan:Yeah, I mean, that's what's sometimes referred to as the business necessity. Exactly. You know, yes, I understand that if we require that you have a PhD in physics to work in our physics department, there are going to be vastly more men being hired than women because the vast percentage of people who get physics degrees are male. Yes, there would be a disparate impact, but it wouldn't be unlawful. And then that's, I mean, that's one of the ways in which the doctrine is sort of the limitations that make it unlikely that the doctrine can be used to pursue equal group outcomes no matter what. Right.

11:03Because if the employers of the institution have, if they have a legitimate reason for using the criterion, then the disparate impact, it might be unfortunate, but it's not illegal. Yeah.

11:14Pamela Karlan:And the other thing that I found like super annoying about the executive order is the way that the executive order puts it is they say that disparate impact theory holds that a near insurmountable presumption of unlawful discrimination exists where there are any differences in outcomes in certain circumstances, even if there's no policy and even if everyone has an equal opportunity to succeed. And of course, it's not a near insurmountable presumption, and it doesn't even come into play where there are any differences. I mean, you know, if you're talking about employment cases, you have to show a pretty significant disparate impact before the employer is even required to tell you why it's using the...

11:58Right. Yeah. And that's when that's frankly why we should have this conversation, because there there are aspects of the order itself, which, to put it simply, are misstatements of the law as it currently exists. Right. And but people who are out in the world, they don't understand that these are misstatements of the law. Right. Right. And so this impact can easily be vilified as this club that some plaintiffs are using to enforce equal outcomes no matter what. But that's actually not, in fact, the way it has worked in practice. And there's no reason to think it will work that way.

12:37Pamela Karlan:Yeah. And, you know, and to go back to Griggs itself, this idea of kind of a random intelligence test as a criterion for a huge range of jobs. You know, a lot of these tests that were given, not only did they have a disparate impact, they actually didn't measure intelligence. And they were measuring some random kind of general idea as opposed to whether people actually had the knowledge to do the particular job they were applying for. Right. And then one of the detailing details in the case, of course, perhaps, is that before the intelligence test requirement was implemented, there were lots of white employees who were placed into jobs where for which they would not have qualified if they had to take the intelligence test.

13:24But nonetheless, they were in the jobs, they were performing the jobs well, yet the employer asserted that the intelligence test was used to screen based on ability. But there was no evidence even that the test measured the abilities which were required for the job.

13:40Pamela Karlan:Yeah, I mean, there's a whole industry, of course. It's part of an industrial organization scholarship about what kind of test you should give to figure out whether somebody can do a job. I mean, a lot of times you want to test that tests for the things that the particular job requires rather than just some general test of are you a good test taker or not. Right. Yeah, no, that's exactly right. So and this is let me emphasize, though, that the the we were talking about the the equal outcomes point that this is in defense of the executive order, at least or in trying to understand it, is that there actually are people out there who are advocating the thing that the executive order seeks to attack.

14:27So the executive order is attacking this view that disparate impact is nothing more than a tool of social engineering to promote equal outcomes no matter what. Now, that's not the way courts have interpreted and applied the doctrine in actual cases. So that's not an accurate description of the law. But there actually are people out there in the world, commentators and critics, maybe even institutional officials, who do think that all disparate outcomes are categorically impermissible. And that anytime you see a disparate outcome, you should strive to change things to avoid the outcome. So in that sense, there is at least a perception of a problem that the executive order is responding to.

15:16Pamela Karlan:Yeah, I mean, it's interesting because the executive order seems to be, in that sense, going after both the law, which it misstates dramatically, and then going after certain critics that are probably as kind of far to the left in that sense, I think, is what you're saying. Administration is to the right. Exactly. In other words, and this might be true about many executive orders, that these are, you know, these are kind of culture war, you know, places where the culture war is fought. And we, you know, it's couched and framed in terms of legal doctrine. But in fact, the executive order, to say the least, doesn't accurately track the doctrine.

15:59It doesn't track the decision making. It doesn't do that. But what it does do is it describes the other side in this cultural battle. Right. And the Trump administration wants to show that it's against those who are pushing for equity or equal outcomes or anti-racism, whatever the term is. It wants to attack that group. And it does in the process of doing so, though, it clearly misstates the law. And I think what's most unfortunate here is that, you know, disparate impact, if we really got rid of it, that would sacrifice meritocracy, which is what the Trump administration says at once. Yeah.

16:40Pamela Karlan:And that's the one of the, you know, so the first part of your essay kind of talks about, well, disparate impact is a tool for smoking out actual purposeful discrimination. And then you shift gears to point to the other, I think, really big thing that disparate impact theory does, which is it forces us to take a second look when we see a really big disparate impact on the basis of race or sex or religion or, you know, age and the age discrimination. employment statute, disability and the, you know, Americans with Disabilities Act, like forces us to kind of look again and ask ourselves, is this test or is this criterion actually measuring merit?

17:25Pamela Karlan:Or is there a way that we can get to finding the best employees for this job or the best students for this college or whatever that doesn't exclude people disproportionately unfortunately, who are members of minority groups or women or members of particular religious or the like. And so, for example, I kind of think here, you know, we've been talking about paper and pencil tests up to now, but I think here a little bit about some of the tests that used to be used to pick police officers or firefighters. So one of the things for police officers, a number of departments had a kind of minimum height and weight requirement for police officers.

18:03Pamela Karlan:Like, You had to be at least five foot ten, let's say, to be a police officer or like. And these criteria disproportionately screened out women. You know, some of the strength tests that were used for firefighters disproportionately screened out women. And they weren't they weren't adopted for those purposes. I mean, you know, they were adopted because first order intuition is bigger and stronger is better than smaller and less strong. But then it turns out that there are many ways to be a good police officer and not all of them require being large enough to intimidate civilian population. Being able to relate to and diffuse tension can be an important one.

18:50Pamela Karlan:Having the ability to listen can be an important one. And so departments were kind of forced by disparate impact theory to rethink how they put these criteria in place. And when they rethought them, they came up with ways of making police departments and fire departments that were just as effective, but in which there were many more women, many more men from ethnic groups that tend to be shorter and lighter than average man and the like. And so that was kind of the second piece, I think, of what you were talking about. And I wonder if we could kind of move into that discussion of, you know, the Trump administration says, on the one hand, you have disparate impact.

19:31Pamela Karlan:On the other hand, you have meritocracy. And you're really saying, no, those two things are not inherently in tension with one another. Yeah, I would actually even know this is a really important point. And I would even go beyond what you just said. You said that they could change the criteria for employment, which results in a broader mix of employees and the department would be just as good. It may even be that that would have made the departments better. I think it does make it better. But along the measures that they cared about, those measures didn't go down. Yes. And this is a problem, especially in public employment, right, where a lot of the hiring criteria were just based on traditions or, as you alluded to, sort of stereotypical notions of like, what does a good cop look like?

20:20What kind of person is this? And you might have imagined what a good cop looks like in 1930 or 1950, very different from what you would then imagine in 1970 or 1980 or 2020, what a good cop should be and what they need to do. So norms have shifted. Yet the criteria for all sorts of reasons, you might imagine, they wouldn't shift as much. So what this means in terms of how we should understand disparate impact is that rather than being a tool to promote equal outcomes no matter what, disparate impact might instead be better understood as a doctrine that nudges employers toward best practices that embody a norm of meritocracy, that help them to hire the best employees when, for a variety of reasons, they might not do so on their own.

21:10And that's a good thing. And this is also a bigger point about the 1964 Civil Rights Act and the whole edifice of anti-discrimination law, because, you know, many critics and perhaps the Trump administration might impugn that law as also taking away employers' choices and promoting equal outcomes and doing things that are un-American. But the reality is that the 1964 Civil Rights Act was probably a pro-meritocracy development because it opened up opportunities for people from all backgrounds. And it nudged employers toward doing things which are good things and which we now take for granted. Things like posting jobs openly and, you know, selecting from a broad pool of applicants.

21:55Practices weren't nearly as consistent in the world prior to the 1964 Civil Rights Act.

22:00Pamela Karlan:Yeah, I mean, one of the first cases I worked on at LDF was a case that involved a very lucrative blue collar job that was it was a union job. And the union's position was you could only become a member of the union essentially if you were the son of a member of the union. Right. And, you know, that obviously had the effect of reducing the ability of people from other racial groups to get that. job. Yeah. This is reminding me of the riverboat case. Oh yeah. My favorite catch against riverboat pilots. Yeah. This was the case where the, you can only become a captain of the riverboat if you had a referral or a training.

22:46Pamela Karlan:You had to do an apprenticeship. Apprenticeships. They only gave them to their sons and their nephews and stuff. And, and Justice Black, as you may remember, writes this unbelievable opinion, this like sort of Mark Twain and the Lord of the River. And, you know, and of course, it's just sheer nepotism. Right. Right. And that's how things work. And that, frankly, just to make it make the point plain, that nepotistic system is anti-meritocratic. Right. That's not a selection on the basis of who's going to be the best person for this job. That's a selection based on this is my son or my nephew and I want to pass the job on to them.

23:25And that's the way lots of jobs have worked over time. And disparate impact is one of the many legal tools that have helped to break up that system. Yeah.

23:35Pamela Karlan:So, you know, you have a book coming out this year called The Big Sort, which is about colleges and college admissions and the like, among other things. And, you know, I mean, we have this question of when colleges admit students, is that a meritocratic system? And what would it mean to say it is or it isn't? Yeah, this is another, I mean, this could be an entire, this will be many separate conversations, because this is one of the issues that society is struggling with and higher education institutions are struggling with. On the one hand, let me just assert out the issues. Meritocracy in principle is a good thing.

24:18Sometimes that gets lost in our culture war. The idea of hiring the best people for the job, the idea of recognizing talent and hard work and having that determine one's outcome in life rather than pedigree or lineage, that's a good idea. And that's part of what the modern world is and should be about. So meritocracy as an ideal is a good ideal. But it's also the case that that doesn't mean every embodiment or instantiation of meritocracy is what we should embrace. We also need to think about what the effects of the system are in a broad sense, both for individual students, institutions, and also for society.

25:01And one of the things I do in the book is kind of sort out these issues in some detail. So I'm very excited about that.