Throughout the tumultuous years of the Trump administration — throughout the controversies, the investigations, the impeachments — there has always been at least one constant: a determination to dramatically roll back civil rights. Even with the nation still reeling from a deadly insurrection attempt incited by none other than President Trump himself, the Department of Justice is moving forward with a significant rule change that would severely narrow its enforcement of anti-discrimination policies. If nothing else, this last-ditch effort to scale back civil rights protections should serve as a reminder for the incoming Biden administration that it must prioritize combatting inequality and discrimination. That means strengthening the enforcement of existing laws and championing a new Civil Rights Act that’s responsive to this era’s most pressing needs.
The Trump administration’s rule change would effectively defang Title VI of the Civil Rights Act, which prohibits organizations that receive federal funds from discriminating on the basis of race, color, or national origin. Under the new rule, the Department of Justice will still enforce the law in instances where the intent to discriminate can be proved, but it will stop doing so in cases where a certain policy is only proved to be discriminatory because of its “disparate impacts” on marginalized groups. In other words, policies that are race-neutral on the surface but have a disproportionate negative impact on protected groups — like some disciplinary actions at schools — will no longer be investigated and will be allowed to stand.
This change will only further discrimination because discriminatory intent is difficult to prove. “By and large, when actions are taken — although they do sometimes include a very explicit racist purpose — more often they are not explicit about their intent,” said Liz King, the director of the Education Equity Program at the Leadership Conference on Civil and Human Rights. Some may not even have a racist intent at all. And at the end of the day, intent doesn’t matter; if a policy is harming marginalized groups, then it should be amended or overturned regardless of whether its disparate impact is intentional or not.
While the new rule does not explicitly advance racial discrimination, the intent is clear. “Sometimes white supremacy shows up with footnotes and with letterhead and with legalese, and it is no less pernicious than its other manifestations,” King told the Globe editorial board. “The effect of this rule could be to allow for federally funded discrimination.”
When Joe Biden is officially sworn in, his administration will have a lot on its hands — from managing the coronavirus to rebuilding the economy to quelling violent white nationalist threats. Common among the onslaught of crises that the nation is facing are the racial injustices that they have exacerbated. That’s why a central tenet of the Biden administration must be the cause of advancing civil rights. And it can start by delaying the implementation of the latest Trump administration rule while the next Department of Justice goes through the process of reversing it altogether. The Biden administration should also strengthen the many other existing civil rights laws that the Trump administration dismantled. The Department of Housing and Urban Development, for example, should reinstate the Obama-era rule to affirmatively further fair housing.
Beyond working within the current legal framework, Biden should also seek to expand the role the federal government plays in advancing racial equality. Since the 1960s, the conservative movement has worked to undo the legacies of leaders like Martin Luther King Jr. by sabotaging laws like the Fair Housing Act and the Voting Rights Act. As a result, the United States has been unable to escape Jim Crow’s shadow. Schools are more segregated today than they were in the 1970s, for example, and Black people are more disenfranchised in some states than they were in the 1980s.
By not only strengthening the existing laws but also championing sweeping and aggressive reforms under a new Civil Rights Act — one that would create new antiracist housing policies, reform policing practices, and explicitly protect people against discrimination based on sexual orientation or gender identity — Biden would send a signal that an antiracist agenda will be the cornerstone on which the nation will rebuild itself.
That’s ultimately how Biden can deliver on his overarching goal to unify the country. In the end, there is no path forward, no way for the nation to heal, without finally dismantling the systemic racism and bigotry within the federal government, which has long empowered white supremacists like those who mounted a deadly attack on America’s multiracial democracy two weeks ago.
In just a few days, against the backdrop of a growing antiracist movement, Biden will be sworn in alongside Kamala Harris, who will be the country’s first woman, Black, and Indian American vice president. It will look like the dawn of a new era. It’s incumbent on Biden to make it so by embracing the fight for civil rights.
Editorials represent the views of the Boston Globe Editorial Board. Follow us on Twitter at @GlobeOpinion.