Fact Sheet: President Donald J. Trump Signs Landmark Order to Restore Equality of Opportunity and Meritocracy

TLDR

This is a “fact” sheet for an executive order designed to eliminate disparate-impact liability analysis, framing it as restoring “equal treatment under the law” and “merit-based” decision-making. It claims to fulfill the “true promise of the Civil Rights Movement” by removing what it describes as an unconstitutional practice, despite Supreme Court precedent upholding disparate-impact theory in multiple contexts. The order misrepresents how disparate-impact analysis functions in practice and overlooks its role in identifying systemic barriers to equal opportunity.

The “fact” sheet presents the referenced executive order as:

• Restoring “equal treatment under the law” by eliminating disparate-impact liability
• Returning to “merit-based” decision-making
• Fulfilling the “true promise of the Civil Rights Movement”
• Removing a constitutional violation

The fact sheet definitively states that disparate-impact liability “violates the Constitution,” yet the Supreme Court has repeatedly upheld disparate-impact claims in various contexts, most notably in Texas Department of Housing v. Inclusive Communities Project (2015). The Court has never ruled that disparate-impact liability itself is unconstitutional.

Furthermore, it claims to restore “the true promise of the Civil Rights Movement,” but disparate-impact analysis was developed during and embraced by civil rights leaders precisely because facially neutral policies could perpetuate discrimination. The Civil Rights Act of 1964 was interpreted by the Supreme Court in Griggs v. Duke Power (1971) to prohibit practices that are “fair in form but discriminatory in operation.”

Additionally, the fact sheet claims disparate-impact liability “mandates discrimination,” which misrepresents how disparate-impact analysis works. Under established legal standards, a statistical disparity alone is not sufficient to establish liability. Defendants can defeat disparate-impact claims by showing business necessity or job-relatedness for the practice.

The assertion that eliminating disparate-impact liability will restore “merit-based” decision-making presupposes that statistical disparities in outcomes must result from considering factors other than merit. This ignores extensive research showing how seemingly neutral evaluation systems can incorporate historical biases or fail to measure skills relevant to job performance.

The fact sheet obscures that this executive order attempts to override statutory interpretations that have been repeatedly affirmed by federal courts, raising serious separation of powers concerns.

By framing the issue as purely about “equal treatment,” the fact sheet ignores the practical result: eliminating a key legal tool that has been used to identify and address systemic barriers facing historically marginalized groups in housing, employment, and other areas.

Finally, the fact sheet presents disparate-impact as creating a “near insurmountable presumption” of discrimination based solely on statistical disparities, when in reality courts apply a burden-shifting framework that allows defendants multiple opportunities to rebut claims.