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When large bipartisan majorities of Congress enacted and subsequently amended the nation’s major civil rights laws during both Democratic and Republican presidencies, policymakers were aware of two core truths about the salience of race and racism in the United States. They knew that that our society must eradicate rampant intentional racial discrimination in housing, employment, voting, and other areas. But they also knew that certain arbitrary, artificial, and unnecessary yet purportedly race-neutral policies would perpetuate the effects of that purposeful discrimination if left unchecked. Congress, through explicit statutory text, and the Supreme Court, in construing less explicit language, have turned to the “disparate impact” framework to address that second truth.

When broken down in the simplest terms, how the disparate impact standard works and why it matters are easy to see. If a policy harms members of one group much more than others and if there is no good reason for the policy, it violates the law. In Griggs v. Duke Power Co., a unanimous Supreme Court, in part at the urging of President Richard Nixon’s Justice Department, first recognized the........

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