On December 9, 2025, the United States Department of Justice ("DOJ") issued a final rule eliminating disparate impact liability from the regulations implementing Title VI of the Civil Rights Act of 1964 ("Title VI"). The repeal rule (Reg. 1190-AA83) departs from historic interpretations by the DOJ and the courts that Title VI bars policies that have a disparate impact on certain groups in addition to those that are intentionally discriminatory. The rule was issued without the customary notice-and-comment period, which is notable for a change that will have sweeping impacts on Americans' ability to challenge bias in a wide range of areas such as employment, higher education, and housing.
In addition, the DOJ's move will require Title VI recipients to carefully analyze whether existing policies on discrimination are compliant with the statutory changes. Given the DOJ's recent announcement that it intends to "vigorous[ly] enforce" the False Claims Act against institutions that violate civil rights laws or falsely certify compliance with such laws, policy reviews should be a top priority for federal funding recipients.
What You Need to Know:
- The DOJ rescinded portions of Title VI to eliminate references to disparate impact or effect and clarify that the statute only prohibits intentionally discriminatory conduct, not conduct that may have a discriminatory impact.
- The DOJ's regulatory modifications align with Executive Order 14281 (April 23, 2025), which declared "[i]t is the policy of the United States to eliminate the use of disparate impact liability in all contexts to the maximum degree possible."
- The move may reduce the volume of lawsuits and investigations regarding systemic discrimination but may require institutions to revisit policies and procedures that seek to limit disparate impact discrimination.
The repeal rule explains that previous regulations prohibiting conduct creating a disparate impact were "in considerable tension with both [Title VI] and the Constitution and do not sufficiently serve the public interest" and that its intent is to "more closely align its regulations to the language that Congress enacted in Title VI prohibiting intentionally discriminatory conduct." To achieve this goal, the DOJ rescinded the following:
- The prohibition on Title VI funding recipients from "utiliz[ing] criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respects individuals of a particular race, color, or national origin" in 28 CFR 42.104(b)(2).
- The uses of the phrase "or effect" from the prohibition on funding recipients selecting facility locations that have the "purpose or effect of excluding individuals from, denying them the benefits of, or subjecting them to discrimination under any program to which this subpart applies, on the ground of race, color, or national origin; or with the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the Act" in 28 CFR 42.104(b)(3).
- The entire text of 28 CFR 42.104(b)(6), which reads: "In administering a program regarding which the recipient has previously discriminated against persons on the ground of race, color, or national origin, the recipient must take affirmative action to overcome the effects of prior discrimination" and "[e]ven in the absence of such prior discrimination, a recipient in administering a program may take affirmative action to overcome the effects of conditions which resulted in limiting participation by persons of a particular race, color, or national origin."
- The entire text of 28 CFR 42.104(c)(2), which prohibits discrimination on the basis of race, color, or national origin in employment practices "if discrimination on the ground of race, color, or national origin in such employment practices tends, on the ground of race, color, or national origin, to exclude persons from participation in, to deny them the benefits of or to subject them to discrimination."
According to the DOJ, rejecting the disparate impact theory "will restore true equality under the law by requiring proof of actual discrimination, rather than enforcing race- or sex-based quotas or assumptions." However, disparate impact theories have traditionally been the backbone of litigation and investigations seeking to challenge systemic discrimination, such as where a professor might allege that hiring practices have resulted in low proportions of women despite the lack of an explicit intent to do so. Indeed, previous adherence to the principle of disparate impact has led to important settlements and consent decrees seeking to end discriminatory patterns and practices, such as a December 2024 consent decree between the DOJ and the Louisville Metro Government regarding that city's policing.
The full impact of the DOJ's regulatory changes likely will not be felt for years. But in the short term, institutions such as colleges and universities may see a reduction in lawsuits alleging discrimination in programmatic offerings and hiring. The reduction in litigation may come with increased compliance burdens, though, as institutions may have to modify policies that incorporate disparate impact principles. Title VI recipients should remain alert for other policy changes as well, as the regulatory repeal is just one of several recent steps the federal government has taken to target diversity, equity, and inclusion initiatives, align civil rights laws with administrative priorities, and affect governance in higher education.
