The U.S. Department of Education on Thursday eliminated regulations going back more than 60 years that recognized liability for disparate impact, such as when statistics demonstrate a discriminatory effect of a school policy on discipline rates or other matters involving groups of students, even without intentional bias.
“With these changes, schools will be empowered to address classroom issues without fearing the federal government will weaponize anti-discrimination laws,” Kimberly Richey, the department’s assistant secretary for civil rights, said in a statement.
Some 60 civil rights and education groups condemned the change, saying in a statement that it “will hurt Black, Latino, Asian American, and Native American students, other students of color, and other marginalized students who face higher rates of discrimination.”
“This severs the guardrails,” said Michael Pillera, the director of the Educational Opportunities Project at the Lawyers’ Committee for Civil Rights Under Law, one of the groups that issued the statement. “This eliminates the ability for students to fully access their rights, and it creates unnecessary and unjustified barriers to access their education.”
Catherine E. Lhamon, who served as the department’s assistant secretary for civil rights under Presidents Barack Obama and Joe Biden, said that because intentional discrimination is harder to prove, civil rights enforcement in school over issues such as access to advanced courses could suffer.
“For the first time since 1964, the federal government is closing its eyes to some forms of discrimination, and that leaves more people more vulnerable,” said Lhamon, who also worked in Biden’s White House and is now the executive director of the Edley Center on Law and Democracy at the University of California-Berkeley Law School. “It’s unnecessary and incredibly ugly—it’s about closing a door on federal protection against harm.”
ED action follows Trump executive order on disparate impact
The department on July 23 released the rescission of past disparate-impact regulations in a document that was expected to be published in the Federal Register on July 24.
The move was not a complete surprise, as it aligns with an executive order issued by President Donald Trump last year calling for the elimination 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.”
The Department of Justice and other Cabinet agencies have also begun issuing formal regulations removing disparate-impact analysis from their rules interpreting Title VI of the Civil Rights Act of 1964, which bars discrimination based on race, color, or national origin.
The Education Department’s document states that the modifications will clarify that Title VI regulations “prohibit intentional discrimination and do not prohibit conduct or activities that have an unintentional disparate impact, and that accordingly, the Department will not pursue Title VI disparate-impact liability against its Federal funding recipients.”
The Department of Health, Education, and Welfare issued its first Title VI regulations in 1964, which included a reference to the discriminatory “effect” of certain conduct. In 1971, the U.S. Supreme Court recognized disparate-impact liability in the case of Griggs v. Duke Power Co., which established a test for analyzing whether disparate outcomes were unlawful.
The new Education Department in 1980 promulgated its first disparate-impact regulations and updated them over the years. In 2001, the Supreme Court in Alexander v. Sandoval ruled that there was no private right to sue over a Title VI disparate-impact claim, so enforcement by the department’s office for civil rights took on more importance.
Disparate-impact debates often concern student discipline
In 2014, President Barack Obama’s administration issued a “Dear Colleague” letter to schools taking an expansive view of disparate-impact liability involving student discipline. President Trump, during his first term, rescinded that guidance; the Biden administration did not restore it.
Such informal guidance does not carry the same force of law that full-fledged regulations do. It was still impactful; the Obama administration’s OCR reached some resolutions with districts over discipline policies using disparate-impact findings, though in other cases it concluded there was no unjustified impact, Lhamon said.
At the time the guidance was issued, many civil rights advocates supported it, noting consistent patterns in which certain groups of students—Black students, particularly—were subject to more intense discipline referrals and consequences. In response, districts explored alternative programs like restorative justice, which the Trump administration has largely criticized.
In a post on X, Education Secretary Linda McMahon said that the rescissions “ensure teachers retain control over their classrooms without fearing weaponized antidiscrimination laws” that would require them to make race a factor in disciplinary decisions.
A ‘compliance effect’ that now may disappear
The department argues in the rescission document that Title VI has always prohibited only intentional discrimination, not disparate impact. While the 2001 Sandoval decision assumed without deciding that Justice Department disparate-impact rules were valid, the court said it was “beyond dispute” that Title VI covered only intentional discrimination.
The document also cites the Supreme Court’s 2023 decision in Students for Fair Admissions v. President and Fellows of Harvard College, which largely ended affirmative action in college admissions. The department suggests that disparate-impact liability would fail the analysis that the court had applied to render those admissions policies unconstitutional.
“Disparate-impact liability … raises serious constitutional concerns, is in considerable tension with the single, best meaning of Title VI, creates confusion, increases the costs of compliance, and does not serve the public interest,” the document says.
Among the criticisms raised by the civil rights and education groups is that the department issued a final regulation without going through the usual public notice and comment procedure. The department’s claim that the rescission fits under a loophole of the Administrative Procedure Act was improper, they assert.
“The Department of Education, especially when it does a significant rulemaking like this that has potential to impact millions of students, has to go through notice and comment, it has to hear from stakeholders,” said Ray Li, a policy counsel with the NAACP Legal Defense and Educational Fund. “Then it should weigh comments from those stakeholders and reason through them and make a decision that justifies their action.”
Li, who worked in the department’s office for civil rights during President Joe Biden’s administration, said OCR has been critical in enforcing disparate-impact claims over the years, if not during Trump’s two administrations.
But even if the current administration were not strongly enforcing disparate-impact claims, the mere presence of the regulations on the books prompted most school districts to be cognizant of their obligations to avoid intentional or unintentional discrimination.
“It means that policies are still created with an eye towards compliance of disparate impact,” said Li. “Taking away that regulation, even without the threat of immediate enforcement, takes away the threat of eventual enforcement as well. And so that’s going to create a huge ripple effect around where we might see schools trying to do things that they have been scared of doing.”
The administration also withdrew a civil rights regulation for CTE programs
A day earlier, on July 22, the Trump administration also rescinded a separate tranche of regulations under the 1964 Civil Rights Act governing how states administer career-technical education programs that accept federal student aid. These regulations date back to 1979.
In effect, the regulations required states to collect and report on additional civil rights compliance in CTE programs. The Trump administration deemed them “burdensome and duplicative,” contending that no other programs receiving student aid are subject to this level of review. Federal data show that disparities between different groups of students have shrunk in the last 40 years, it said.
As with the larger disparate-impact rescission, the administration said that enrollment differences aren’t evidence of discriminatory intent. “It is unclear whether any such disparities result from intentional discrimination or, alternatively, the informed decisions of students who may choose to enroll in one program or another for any number of reasons,” it wrote.
Some observers argue, though, that CTE programs still funnel students unevenly into high-quality and lesser opportunities.
“Even with federal protections, we see profound inequities in who gets access to high-quality career pathways,” said Cami Anderson, a former superintendent who once oversaw New York City’s alternative high schools and programs and is now the founder and CEO of Third Way Solutions, a consulting group. “As we pour money and attention into career-connected learning, we should be more—not less—serious about who gets access to the best programs and whether they lead to real short term outcomes and ultimately economic mobility.”
