At the end of July, the U.S. Department of Education (ED) announced the recission of various Title VI regulations that implemented legal protections against disparate impact discrimination. This is a significant revision to federal anti-discrimination law and diverges from California’s anti-discrimination law under the Fair Employment and Housing Act. Now, under federal law, those wishing to show discrimination must prove intent to discriminate, a difficult showing in many instances, for all claims.

Title VI is a longstanding piece of legislation enacted as part of the federal Civil Rights Act of 1964 to ensure that no person is excluded from participating in, or denied the benefits of, any government program or activity that receives federal financial assistance. The law prohibits discrimination based on race, color and national origin in such programs and activities. Prohibited discrimination can be intentional, harassment that creates a hostile environment, or exclusion from services or benefits.

Until recently, the law, like many other federal antidiscrimination laws, encompassed two legal theories: discriminatory treatment and discriminatory impact. Discriminatory treatment involves intentional harm based on race, color, national origin or some other protected characteristic. Discriminatory impact, on the other hand, occurs when an otherwise neutral policy or action causes a disproportionate and unjustified negative harm to a group, regardless of its intent.

Use and recognition of the disparate impact theory began in the 1971 U.S. Supreme Court case Griggs v. Duke Power Co. ((1971) 401 U.S. 424.), which related to Title VII of the Civil Rights Act and employment law. Since that time, courts have applied the theory in the employment context through Title VII and the Age Discrimination and Employment Act, as well as housing through the Fair Housing Act. The theory was also applied in various other contexts, such as school and university settings, as well as the activities of local government and other federally supported organizations through Title VI.

In 2025, President Donald Trump issued Executive Order 14281: Restoring Equality of Opportunity and Meritocracy, with the stated purpose of eliminating disparate impact discrimination as a legal theory for individuals and groups to rely on in situations in which they feel they have been discriminated against. Importantly, executive orders are not a legal mechanism for changing the law, but rather a directive from the president to the federal executive branch departments and agencies. Nonetheless, over the past year and a half, several federal agencies have taken action to implement the objectives of Executive Order 14281 and have chipped away at the disparate impact theory. For example, in December 2025, the Department of Justice (DOJ) issued a federal rule eliminating liability for disparate impact discrimination. Similar to the DOJ’s action, the ED has very recently rescinded regulations that recognized disparate impact as a legitimate legal theory to be relied on in Title VI discrimination claims.

The ED issued these recissions in two final rules published in the Federal Register. Contrary to the typical rule-making process, the recissions were made without seeking input from the public in the form of public comment. On July 23, the ED issued a rule removing longstanding guidelines to assist in the elimination of discrimination in those programs. On July 24, the ED released an even more expansive rule that removed disparate impact from Title VI considerations entirely. The ED explained that the purpose of the new rules is to bring its “regulations in line with Title VI’s original public meaning, avoid constitutional concerns, implement changes that are consistent with Executive Order 14281, ‘Restoring Equality of Opportunity and Meritocracy,’ reflect the department’s independent policy determinations, reduce confusion and uncertainty, lower compliance costs for recipients of Federal financial assistance, and serve the public interest.”

The explanation also states that the regulations encourage unlawful discrimination through affirmative action and are “improperly general and vast in scope, rather than limited to particular, clearly defined circumstances, as required by Supreme Court precedent.” The explanation goes on to describe that even if the regulations are legal, eliminating constitutional concerns is a sufficient basis for their recission. Further, “even if the regulations are legal and do not raise serious constitutional concerns, the Department finds that eliminating the costs and confusion caused by the mismatch between the statute and the disparate-impact regulations independently justifies the repeal of the regulations.”

As a result of these recissions, claims for disparate impact discrimination can no longer be filed with the ED. Nonetheless, state law and local policies that prohibit disparate impact discrimination still apply and must be adhered to. Legal action challenging the ED’s removal of the disparate impact theory of discrimination as well as the process used to rescind these regulations is expected. Additionally, legal proceedings related to the interaction of federal law with state law and local policies may result. CSBA will continue to monitor this evolving legal landscape and provide updates as they emerge.