On April 23, the president signed an executive order (EO) entitled, “RESTORING EQUALITY OF OPPORTUNITY AND MERITOCRACY.” In pertinent part, the EO intends to “eliminates the use of disparate-impact liability in all contexts to the maximum degree possible to avoid violating the Constitution, Federal civil rights laws, and basic American ideals.” The EO directs the Attorney General to review “all existing regulations, guidance, rules, or orders that impose disparate-impact liability or similar requirements, and detail agency steps for their amendment or repeal, as appropriate under applicable law [and] assess all pending investigations, civil suits, or positions taken in ongoing matters under every Federal civil rights law within their respective jurisdictions, including Title VII of the Civil Rights Act of 1964, that rely on a theory of disparate-impact liability, and shall take appropriate action with respect to such matters consistent with the policy of this order.”
The EO makes no reference to language access law. Simply put, language access is not mentioned in the EO because the end of disparate impact theory has NO bearing on or relevance to providing language access for LEP people.
Join our June webinar for a deep dive into the legal and practical implications of this EO and what it means for language access compliance in 2025. Register here.
The April 23 EO broadly seeks to end the federal government’s use of disparate impact liability theory under federal civil rights laws such as Titles VII and VI of the 1964 Civil Rights Act, Fair Housing Act, and the Equal Credit Opportunity Act.
Disparate impact liability theory analyzes a seeming “facially” (on the surface) neutral procedure, policy, or law, to determine if there is a disparate impact or effect on protected individuals with no substantial, non-discriminatory or legitimate justification. Disparate impact liability theory focuses on the effect of federal funding recipients’ policies and practices and NOT their intent. Intent to discriminate is not a required element of disparate impact.
Through data collection and related analysis, the liability theory can identify practices and policies that have the effect of discriminating, without the intent to do so. Disparate impact liability theory can then be used in litigation as a method for eliminating the discriminatory policies. Over time, disparate impact theory has provided valuable information about the discriminatory effects of many facially neutral polices, for example, those concerning educational disparities and rental housing patterns.
However, disparate impact theory has long been opposed by those who disagree with finding discrimination liability without evidence of any intent to discriminate. The current EO seeks to effectuate such long held opposition.
Since 2001, the law of the United States has been that private individuals and organizations have NO right to file disparate impact lawsuits alleging violations of Title VI of the 1964 Civil Rights Act. In the case of Alexander v. Sandoval, the Supreme Court decided that only federal agencies can file disparate impact liability claims in court. See: Alexander v. Sandoval, 532 U.S. 275 (2001), (“Neither as originally enacted nor as later amended does Title VI display an intent to create a freestanding private right of action to enforce regulations promulgated under § 602. We therefore hold that no such right of action exists,”) And See, Elston v. Talladega County Bd. Of Educ. 997 F.2d 1394 (11th Cir., 1993), and New York Urban League v. State of New York, 71 F.3d 1031 (2d Cir., 1995).
However, in the past 24 years since the Sandoval decision, the federal government has filed zero discernible disparate impact Title VI language access court cases. Regardless of the April 23 EO, the likelihood of the current administration pursuing language access disparate impact litigation is non-existent since the administration opposes disparate impact theory. Today, the new ban on the federal government’s being able to litigate disparate impact liability theory in support of Title VI language access changes nothing and has no language access impact since DOJ did not litigate such cases during the past 24 years. Having lost the ability in 2001 to file their own Title VI disparate impact cases, private individuals and organizations retain their private right of action or right to sue for Title VI language access violations alleging intentional discrimination or disparate treatment, as decided by the Supreme Court in Alexander v. Sandoval.
Each presidential administration has discretion about the laws it will enforce and the theories/strategies used to advance allegations of discriminatory conduct. The cases supporting disparate impact theory remain on the law books and can be used by a future president.
So, where are we now with disparate impact and language access? Essentially in the same place we were before, starting 24 years ago.
Language access is a civil right and the law of the land. The presence or absence of disparate impact theory does not change this fact. In addition, I have seen recent social media posts about how the recession of EO 13166 from 2000 and guidance documents from 2002 change language access law. They do not. Please remember that EOs rescinding guidance documents and past EOs do NOT change federal law, such as Title VI and court decisions. EOs are not laws and guidance documents are not legally binding. Plus, there are guidance documents from the 1970s and the early 2000s that ably provide language access recommendations.
The areas of law that arise through EOs on a near daily basis can be arcane and complex to lawyers and non-lawyers alike. However, language access law, birthright citizenship, DEI legality and the void for vagueness doctrine, the anti-commandeering rule, and much more cry out for competent, accurate legal advice that qualified lawyers are enabled to provide.
Want more in-depth insights on language access law, DEI, and EO developments? Attend LEO11 Conference — a premier online event for legal and compliance professionals. Register now
Bruce L. Adelson, Esq., is nationally recognized for his compliance expertise. Mr. Adelson is a former U.S Department of Justice Civil Rights Division Senior Trial Attorney. Mr. Adelson is a faculty member at the Georgetown University School of Medicine and University of Pittsburgh School of Law where he teaches organizational culture, implicit bias, cultural and civil rights awareness.
Mr. Adelson’s blogs are a Bromberg exclusive.