The government actually can do, and often does, policy with racially disparate impacts. Disparate impact is not a Constitutional limit on government discrimination, its a judicially-created rule in the application of certain statutory anti-discrimination laws.
(And the disparate impact rule is politically and legally unpopular with the same faction that currently dominates the Supreme Court and whose members on the Court have shown an unusual willingness to discard precedent, so its quite likely it won’t be a limit on discriminatiom under those statutes much longer, either.)
The disparate impact rule is challenging to begin with because literally every policy has a disparate impact, because there is and always will be an uneven distribution of people of whatever cultural or ethnic subgroup they can be divided into in whatever social roles that exist. It should rightly be rid of. There are many other better ways to address discrimination.
> The disparate impact rule is challenging to begin with because literally every policy has a disparate impact
“Disparate impact” prohibited by
the rule isn't just unequal impact, its unequal impact without sufficient justification (what qualifies for that differs between the employment and housing contexts where the rule is applied.)
(And the disparate impact rule is politically and legally unpopular with the same faction that currently dominates the Supreme Court and whose members on the Court have shown an unusual willingness to discard precedent, so its quite likely it won’t be a limit on discriminatiom under those statutes much longer, either.)