Is It Racism Or Just Legal Clarity?

For years, conservatives have argued that proving discrimination in court should require proof of intent to treat people differently. Conservatives also complain that when people are judged by numbers, they feel pressure to make decisions based on racial quotas. Between new rules the president is rushing to establish before Jan. 20 and the new radical right Christian Nationalist supreme court, this cherished conservative goal is likely to become established for years to come. The Washington Post writes:

The Trump administration is pushing in its final days to undo decades-long protections against discrimination, a last-ditch effort to accomplish a longtime goal of conservative legal activists.

The Justice Department is seeking to change interpretation of Title VI of the 1964 Civil Rights Act, which bars discrimination on the basis of race, color or national origin by recipients of federal funding. Under these rules, actions are considered discriminatory if they have a discriminatory effect, what’s known as a “disparate impact,” on protected groups. Under the new version, only intentional discrimination would be prohibited.

Typically regulations of this magnitude are published first as proposals and the government collects public comment before publishing its final version. It would be unusual to publish a final regulation — particularly one of this magnitude — without going through that process, but the document says that its proposal falls under an exception and therefore the administration is not required to seek public comment.

Under the concept of disparate impact, actions can amount to discrimination if they have an uneven effect, even if that was not the intent. Regulations across the government implementing the 1964 Civil Rights Act and its amendments define discrimination as including this unintentional form of bias.

The Supreme Court has recognized disparate impact claims, but in a 2015 housing case, its use was upheld by a narrow 5-to-4 vote, in an opinion written by Justice Anthony M. Kennedy, who now is retired. Some conservatives have speculated that the new, more conservative court might decide the same matter differently. (emphasis added -- the radical right Christian Nationalist court will decide the same matter differently)

Once again, the matter of proof of intent is front and center in radical right legal thinking. Conservatives know that proving intent to discriminate cannot be proved in court so the new rules will allow discrimination with impunity. Bigots and racists, just like other white collar criminals, know how to discriminate without being held liable.

Grinding civil liberties and democracy down

This is another example of how the radical right is slowly grinding civil liberties protections and democracy down. If the radical right keeps getting its way, the federal government will eventually come to be a shadow incapable of defending civil liberties. When power drains away from government, it inexorably flows to wealthy people and powerful special interests, especially the Trump brand GOP and its major donors. 

Over time, rank and file republicans will come to be almost as adversely affected as the minorities the radical right elites want to be free to discriminate against right now. They generally will not be discriminated against on the basis of race or national origin, but instead they will come to feel the teeth of the power flow from the government to the wealthy and special interests. Those forces are focused on accumulating power and wealth and nothing but that. Modern radical right conservatism has no significant concern for the public interest or general welfare. Radical right ideology is a Darwinian dog-eat-dog society. The losers get crushed and discarded because their plight is their fault in the eyes of their righteous Christian God. Wealth and power trickle up to the top and they stay there.