Education Department Repeals Title VI Disparate Impact Rules

In an unusual move, the Department of Education bypassed the notice-and-comment rulemaking process to publish final regulations rescinding the disparate impact regulations under Title VI, which prohibits race, color, and national origin discrimination in federal funding programs. The final rule is effective immediately.

Under federal civil rights laws, there have traditionally been two forms of discrimination that have been recognized: 1) disparate treatment, which occurs when there is intentional discrimination based on a protected characteristic; and 2) disparate impact, which occurs when a facially neutral policy disproportionately harms a protected class. In 2001, the Supreme Court ruling limited the application of disparate impact claims in the Title VI context. Meanwhile, the Trump Administration has sought to eliminate the disparate impact provisions entirely, arguing that both the statute and the Constitution require evidence of intentional discrimination.

In taking the rare step of publishing a final rule without public notice and comment, the Department cited an exemption under the Administrative Procedure Act that allows agencies to sidestep elements of the traditional rulemaking processes for rules “relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.” It remains to be seen whether such a move will draw successful legal challenges, but the Department is similarly planning to bypass these procedures when it publishes other civil rights-related regulations later this year.

For more information, please contact:
Jody Feder