Imagine a city where the schools woefully underserve minority students. Despite equal budgets etc. there is a persistent gap, probably due to income gaps but that’s not the point. Within the education system there is no one institutional factor to blame.

Now imagine a civil service exam in that same city, entirely race neutral but resulting in a disparity because it tests general skills. The test is de jure racist when all it does is expose the poor education system. Because the education is so poor, the only remediation is to hire unqualified people. So you end up with a deficient civil service in the name of fairness.

There are other ways to examine whether a test or policy is racist.