Effective July 24, 2026, the U.S. Department of Education (ED) amended its regulations implementing Title VI of the Civil Rights Act of 1964 (Title VI) to eliminate disparate impact liability. Title VI provides in relevant part, “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
Generally speaking, “disparate impact liability” can be found when, despite an absence of discriminatory intent(ion), a facially neutral policy has a disparate (or unequal) impact on students of a particular demographic. ED’s decision to rescind its disparate impact liability regulations claims that the rulemaking was necessary due to “serious statutory and constitutional concerns with the legality of the provisions of [ED’s] Title VI regulations that go beyond prohibiting intentional discrimination to additionally prohibit conduct giving rise to unintentional disparate impacts.” In other words, ED’s regulations permitted disparate impact liability even though such liability was not specifically authorized by case law. The rulemaking also claims to be consistent with and to align to President Trump’s Executive Order 14281, Restoring Equality of Opportunity and Meritocracy, which stated that “[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 to avoid violating the Constitution, Federal civil rights laws, and basic American ideals.”
ED’s rulemaking continues:
The modifications in this rule will clarify for recipients of Federal financial assistance from the [ED] that [ED’s] Title VI regulations prohibit intentional discrimination and do not prohibit conduct or activities that have an unintentional disparate impact, and that accordingly, [ED] will not pursue Title VI disparate-impact liability against its Federal funding recipients. This rule also removes from [ED’s] regulations various provisions that have no statutory justification.
…
Aside from removing provisions that impose disparate-impact liability, or permit or require unlawful affirmative action, this rule does not alter or limit [ED’s] policies regarding recipients’ obligations to take reasonable steps to eliminate a hostile educational environment, remedy the effects of such an environment, and prevent the underlying harassment from recurring.
ED issued this rulemaking without prior public notice and comment, citing an exemption for rules “relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.”
Boards of education and charter school boards of trustees with questions about whether they are in compliance with all legal mandates should consult with their attorney for legal advice and guidance.
