The Brief: An agenda for America’s universities, Future of disparate impact (May 2025)
Welcome to The Brief, our newsletter bringing you focused insights on race, law, policy, and technology from the Stanford Center for Racial Justice.
An Agenda for America’s Universities to Serve the Public Interest
President Trump’s extraordinary pressure campaign against some of the nation’s top universities seizes on a sentiment shared by many: that these institutions primarily serve the interests of an already privileged elite. In the face of these unprecedented challenges to their funding, autonomy, and very mission, universities must defend core principles that have made them world leading–including the independence of their research and teaching–but focusing solely on defense would miss a key opportunity.
In our latest Policy Brief, we examine how universities can reinvigorate their relationship with society by pursuing ambitious, forward-thinking initiatives. Building on our earlier White Paper, Private Universities in the Public Interest, we propose a set of ideas that redefine higher education’s civic role—from building new versions of high-quality universities in new regions to pursuing collaborations that bend the cost curve, leveraging technologies to democratize learning, and implementing bold strategies to expand access that go well beyond simply reallocating seats in an incoming class.
These recommendations are designed to address the fundamental disconnect between universities and the public by creating pathways for institutions to better deliver on their promise of economic opportunity and mobility. By pursuing these solutions—many of which already receive bipartisan support—universities can speak directly to Americans’ concerns that these institutions, and the U.S. economy, are not working for them.
Read the Policy Brief here.
Get our White Paper.
FACULTY DIRECTOR’S CORNER
Professor Ralph Richard Banks on the future of disparate impact
President Trump’s Executive Order concerning the disparate impact doctrine is one of the many ways the Administration has moved our nation in the wrong direction. On April 23, the President issued “Restoring Equality of Opportunity and Meritocracy,” the primary purpose of which is to reject the disparate impact doctrine that for more than half a century has been a part of anti-discrimination law in the United States.
Disparate Impact doctrine was jointly created by the Supreme Court and Congress and provides a basis for designating practices as discriminatory even if they do not rely on any formal group based criterion and even if they are not animated by an intent to discriminate. The Trump Executive Order portrays disparate impact doctrine as a dangerous tool to “transform America’s promise of equal opportunity into a divisive pursuit of results preordained by irrelevant immutable characteristics.” This is a gross mischaracterization of how disparate impact law operates.
Disparate impact blocks employers and other institutions from unthinkingly excluding talented people from opportunities in the workplace and elsewhere. The doctrine had its greatest impact in the 1970s, as it helped to topple long standing barriers. For instance, in Griggs v. Duke Power Co. (1971), the Supreme Court struck down the use of generalized intelligence tests as a hiring requirement when those tests disproportionately excluded Black applicants and had little relationship to actual job performance. There, the Court did not prohibit employers from using tests or other assessment tools—it simply required that those tools be genuinely related to the job.
More recently, disparate impact has been much less, well, impactful. In many settings where disparate impact applies, there is no private right of action, which means the doctrine can be enforced by the federal government, but not by individuals who feel aggrieved. This restriction with respect to who can pursue a disparate impact claim dramatically constrains the effect of the doctrine.
The Trump Executive Order also portrays disparate impact as contrary to meritocracy. It’s true that disparate impact does create an incentive for institutions to consider the effects of potential policies on identifiable groups, based not only on race, but also sex, age, disability, and pregnancy. But even when a disparate impact is shown, the entity will prevail if it can proffer a legitimate non-discriminatory reason for the challenged policy.
The primary effect of disparate impact is to encourage entities to consider whether their policies are furthering legitimate goals. Disparate impact nudges institutions toward more meritocratic decision-making. The Trump Administration would have done well to recognize disparate impact as a useful tool rather than seeing it as part of the problem.
From the Stanford Center for Racial Justice
We shared a new video highlighting Stanford student contributions to the Center’s work. Our interns and fellows have made significant impacts across projects ranging from public safety reforms to research on higher education and analysis of the rapidly evolving DEI landscape.
Apply now for the Center’s Harry Bremond-Wilson Sonsini Foundation Student Fellowship. Applications for the 2025-2026 fellowship are due by Sunday, June 15, 2025.
Dan Sutton analyzed California’s Racial Justice Act, a law that stands poised to impact the state’s criminal justice system by explicitly allowing defendants to present data-driven evidence of discriminatory patterns in charging and sentencing decisions.
Spring quarter PSYCH 188 students have been thinking critically about how race and bias operate within the legal system. The course is co-taught by Jordan Starck and Hoang Pham.
Zoe Edelman, BA ‘25, and Andrea Akinola, JD ‘27, reflect on moving from education research to policy change in the Roses Talk Project.
ON THE RECORD
“What people seem to be doing is taking positions based on their identity, rather than their knowledge of the facts, whether they’re [Governor Ron] DeSantis or one of his supporters or one of his critics. That said, the appearance here is that the College Board made a decision for political reasons, rather than substantive, pedagogical, or curriculum-oriented reasons. And that’s a bad thing.”
Ralph Richard Banks Faculty Director, Stanford Center for Racial Justice
Discussing the College Board’s decision to strip down the official curriculum for its new AP African American Studies course following criticism from Florida Governor DeSantis and other conservatives about subjects such as Black Lives Matter, slavery reparations, and incarceration.
THINGS YOU SHOULD KNOW
Trump executive order bars disparate impact claims in federal bias cases
President Trump’s executive order, discussed in our Faculty Director’s Corner, requires the Equal Employment Opportunity Commission and Department of Justice to review and potentially drop existing investigations and lawsuits using the disparate impact legal theory within 45 days, as reported in Bloomberg Law. The order characterizes the long-established legal approach, which focuses on the discriminatory effects of seemingly neutral policies rather than proving intentional bias, as promoting “racial balancing” that “violates our Constitution.” Legal experts note this will particularly impact enforcement of AI-related employment bias claims and could affect pending cases, including the EEOC’s lawsuit against the convenience store chain Sheetz over criminal history screening practices and their support for claims against Hyundai and software vendor Workday. While federal agencies must comply with the directive, private individuals can still bring some disparate impact claims in court for now.
Department of Justice Probes Minnesota prosecutor’s policy to consider race in plea deals
The Department of Justice’s Civil Rights Division opened an investigation into Minnesota’s Hennepin County Attorney’s Office where a recent policy memo instructs prosecutors to consider defendants’ “racial identity and age” during plea bargaining, as part of an effort to address disparities in the criminal justice system. Assistant Attorney General Harmeet Dhillon, President Trump’s hand-picked chief of the Civil Rights Division, is seeking to determine if Hennepin County, which includes Minneapolis, engages in the “illegal consideration of race in its prosecutorial decision making.” While county officials maintain their policy complies with federal law, legal experts are uncertain noting the hostility the Supreme Court has shown lately towards government policies that consider race.
Meta’s push to ‘de-bias’ its AI models raises concerns
A note appended to the recent release of Meta’s Llama 4 large language models asserted that all leading LLMs “historically have leaned left when it comes to debated political and social topics.” As Axios examined, the tech giant’s goal of removing bias from its models is sparking concerns among experts who see the move as catering to the political right rather than achieving genuine neutrality. Earlier research in 2023 showed Llama already provided the most right-wing authoritarian answers compared to other AI systems like ChatGPT. Critics worry that Meta’s approach—which includes efforts to reduce the percentage of questions the model refuses to answer (Llama 4’s refusal rate is down to 2% from 7% in Llama 3.3)—could legitimize harmful content and have called it a “pretty blatant ideological play.”
Here’s what else we’re following.
Title VI probe of Harvard Law Review: Federal agencies are investigating the Harvard Law Review for alleged race-based discrimination in article selection after leaked messages suggested the journal’s editors considered authors’ racial identity in publication decisions. Harvard Crimson
Corporate DEI terms are disappearing: An analysis by the Washington Post finds S&P 500 companies dramatically reduced mentions of diversity, equity, and inclusion in regulatory filings from a peak of 12.5 references in 2022 to just 4 in 2024. Washington Post
Race Attitudes Five Years Post-Floyd: New Pew Research survey reveals growing pessimism about racial progress since George Floyd’s murder, with 72% of Americans saying the 2020 focus on racial inequality did not lead to meaningful improvements for Black lives. Pew Research Center