This article was originally published by The Emancipator.
Recently updated on October 5th, 2024 at 07:45 am
In late June, the Supreme Court decided Loper v. Raimondo, one of the most consequential cases of the past term. Loper ended Chevron deference, a longstanding rule that empowered federal agencies to interpret vague or ambiguous laws pertaining to their area of policy administration.
This change is critical because it empowers judges to strike down federal policies — including those necessary to advance civil rights and protections for communities of color in domains spanning education, housing, and the environment.
Republican leadership lauded Loper, arguing that the decision — from the conservative Supreme Court — “leaves no room for an unelected bureaucracy to co-opt this authority for itself.” As a practical matter, the decision has the potential to reverse progressive policies put in place over the last few decades.
The implications of this “judicial power grab” are far-reaching because they further consolidate the judiciary’s dominance over other branches of the federal government. It also opens the door to rollback policies born out of the Civil Rights Movement. One likely target includes “disparate impact regulations,” a key tool used by federal agencies to safeguard the civil rights of people of color. The loss of disparate impact would specifically cripple the federal government’s ability to combat discriminatory policies in college admissions, housing, and health.
Loper is not the first time the Supreme Court has intervened to undermine legislative or executive efforts to promote civil rights. In 1883, the Supreme Court struck down the first federal attempt to prohibit racial discrimination in public accommodations. The ruling thwarted one of Congress’ earliest efforts to realize meaningful equality for Black Americans.
Another recent example is last year’s decision to strike down race-conscious admissions policies at Harvard University and the University of North Carolina. Chief Justice John Roberts eviscerated over 40 years of precedent when he infused the Fourteenth Amendment with a vision of constitutional “colorblindness” that all but guarantees a more racially segregated and unequal society.
While these examples involve the judiciary hindering congressional efforts to promote racial equality, Loper invites federal judges to obstruct similar executive branch efforts. Among other consequences, the end of Chevron positions rightwing judges to circumscribe federal agencies’ power to interpret and enforce our nation’s most important civil rights laws.
One example is Title VI of the 1964 Civil Rights Act, which covers entities that receive federal funding and enabled the federal government to force southern states to comply with Brown v. Board of Education.
Title VI explicitly states that no person “shall . . . be excluded from participation in, be denied the benefits of, or be subjected to discrimination” based on their race, color, or national origin. The law also directs federal agencies like the Department of Education (ED) and Environmental Protection Agency (EPA) to issue rules and regulations that ensure Title VI achieves its objectives. The question now is whether Loper will enable conservative courts to obstruct the agencies’ ability to heed that command.
Soon after Title VI’s passage, agencies like the ED and the EPA developed “disparate impact” regulations that prohibit “criteria or methods of administration which have the effect of subjecting individuals to discrimination.”
These regulations would cover, for example, an admissions policy that favors the children of alums and disproportionately excludes Asian American students or a municipality’s decision to dump toxic waste next to a predominantly Black neighborhood. The Department of Justice (DOJ) has explained that “disparate impact regulations seek to ensure that programs accepting federal money are not administered in a way that perpetuates the repercussion of past discrimination.”
Yet for the past 40 years, conservative Supreme Court majorities have held that Title VI’s statutory text does not prohibit disparate impact, but only covers intentional discrimination. This intent requirement means that an individual could not sue to stop the legacy preference that harms Asian American applicants or the municipal land use decision that harms a Black community.
But federal agencies can, through their enforcement powers. This is because even as the Supreme Court interpreted Title VI narrowly, it has treated the agencies’ disparate impact regulations as valid and enforceable by the federal government. The question is whether this will hold.
It’s not clear it will. For one, disparate impact regulations are unlikely to survive another Donald Trump presidency. Project 2025, the unofficial conservative playbook for a second Trump term, explicitly calls for eliminating it. It’s not even clear that disparate impact will survive another Democratic administration.
This past January, a federal judge in Louisiana refused to defer to the agencies’ regulations and enjoined the EPA and DOJ from “imposing or enforcing any disparate impact-based requirements.”One might ask how future Democratic administrations could blunt the risk posed by cases like Loper.
Congress could amend existing laws like Title VI so that they expressly cover disparate impact and insulate agency regulations from hostile courts. Congress could also counter the Supreme Court’s anti-democratic impulses through meaningful court reform.
Neither option is realistic unless Democrats control the presidency and both chambers of Congress. But if the opportunity arises, the future of multiracial democracy demands nothing less.
