Rescinding Portions of Department of Justice Title VI Regulations To Conform More Closely With the Statutory Text and To Implement Executive Order 14281

<RULE> DEPARTMENT OF JUSTICE <CFR>28 CFR Part 42</CFR> <DEPDOC>[CRT Docket No. 146; AG Order No. 6509-2025]</DEPDOC> <RIN>RIN 1190-AA83</RIN> <SUBJECT>Rescinding Portions of Department of Justice Title VI Regulations To Conform More Closely With the Statutory Text and To Implement Executive Order 14281</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Civil Rights Division, Department of Justice. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> By this rule, the Department of Justice amends its regulations implementing Title VI of the Civil Rights Act of 1964 (“Title VI”) to eliminate disparate-impact liability. These amendments align the conduct prohibited by the Department's regulations with Title VI's original public meaning, avoid constitutional concerns, reduce compliance costs, and serve the public interest. In addition, these revisions implement changes directed in Executive Order 14281. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> The rule is effective on December 10, 2025. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> R. Jonas Geissler, Deputy Assistant Attorney General, Civil Rights Division, at 202-353-8866. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Executive Summary</HD> The Department is rescinding portions of its regulations promulgated pursuant to Title VI, 42 U.S.C. 2000d-1, to more closely align its regulations to the language that Congress enacted in Title VI prohibiting intentionally discriminatory conduct, <E T="03">see</E> 42 U.S.C. 2000d. There are serious statutory and constitutional concerns with the legality of the Department's Title VI regulations that go beyond intentional discrimination by prohibiting conduct that has an unintentional disparate impact. This rule accordingly rescinds those portions of the regulations that prohibit conduct having a disparate impact, which are in considerable tension with both the statute and the Constitution and do not sufficiently serve the public interest. First, this rule rescinds the full text of 28 CFR 42.104(b)(2), which currently prohibits the utilization of “criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin.” Second, this rule removes the two uses of the phrase “or effect” from 28 CFR 42.104(b)(3). Third, this rule rescinds the full text of 28 CFR 42.104(b)(6). Fourth, this rule rescinds the full text of 28 CFR 42.104(c)(2), which addresses employment practices subject to Federal financial assistance. The rule's revisions also conform to Executive Order 14281, <E T="03">Restoring Equality of Opportunity and Meritocracy,</E> 90 FR 17537 (Apr. 23, 2025). That Order 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.” <E T="03">Id.</E> at 17537. The Order directed the Attorney General to, among other things, review Title VI regulations and “initiate appropriate action to repeal or amend” these regulations “to the extent they contemplate disparate-impact liability.” <E T="03">Id.</E> at 17538. Section 3 of the Order specifically revoked the Presidential approvals of certain Justice Department Title VI regulations that address disparate-impact liability promulgated under 42 U.S.C. 2000d-1. <E T="03">Id.</E> Though the Department would take this action independent of Executive Order 14281, the Order supports this action. The practical impact of this rule's modifications will be to make clear to Department Federal-funding recipients that the Department's Title VI regulations do not prohibit conduct or activities that have a disparate impact and prohibit only intentional discrimination, and the Department thus will not pursue Title VI disparate-impact liability against its Federal-funding recipients. <HD SOURCE="HD1">II. Discussion</HD> <HD SOURCE="HD2">A. Statutory History of Title VI</HD> Title VI of the Civil Rights Act of 1964, as amended, provides: “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.” 42 U.S.C. 2000d. Title VI also directs Federal departments and agencies that extend Federal financial assistance to “effectuate the provisions of” Title VI “by issuing rules, regulations, or orders of general applicability.” 42 U.S.C. 2000d-1. The section of the Title VI statute that sets forth the prohibited conduct, 42 U.S.C. 2000d, prohibits specifically intentional discrimination and makes no reference to unintentional disparate effects or impact. <E T="03">See Alexander</E> v. <E T="03">Sandoval,</E> 532 U.S. 275, 280 (2001) (“[I]t is . . . beyond dispute—and no party disagrees—that [Title VI] prohibits only intentional discrimination.”). The statute does not explicitly provide any Federal department or agency with authority to prohibit unintentional disparate impact. And despite ample opportunities, Congress has enacted no subsequent amendments to Title VI to impose disparate-impact liability. <HD SOURCE="HD2">B. Regulatory History of Title VI</HD> Pursuant to Executive Order 12250, “[t]he Attorney General shall coordinate the implementation and enforcement by Executive agencies of . . . Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d <E T="03">et seq.</E> ).” 45 FR 72995, 72995 (Nov. 2, 1980). Accordingly, the Department of Justice acts as the lead Federal agency responsible for defining the nature and scope of Title VI's prohibition of discrimination on the basis of race, color, and national origin in programs or activities receiving Federal financial assistance. The Order directs the Department, among other things, to “develop standards and procedures for taking enforcement actions and for conducting investigations and compliance reviews.” <E T="03">Id.</E> Further, as part of this responsibility, the Order provides that other agencies' Federal regulations implementing Title VI are also subject to the Attorney General's approval. <E T="03">Id.</E> at 72996. The Department's Title VI implementing regulations are codified at 28 CFR 42.101, 42.112. The initial set of model regulations for Title VI were issued by the then-Department of Health, Education, and Welfare on December 4, 1964, which included only one reference to the “effect of” language in the “discrimination prohibited” provision of the rule. <E T="03">See</E> 29 FR 16298, 16299 (Dec. 4, 1964) (provision found at 45 CFR 80.3(b)(2)). The Department adopted these model regulations in 1966, which likewise contained a single instance of the “or effect” language at 28 CFR 42.104(b)(2). 31 FR 10265, 10266 (July 29, 1966). In 1973, the Department substantively amended its regulatory description of prohibited discrimination. <E T="03">See</E> 38 FR 17955 (July 5, 1973). These substantive changes include, among other things, the addition of 28 CFR 42.104(b)(3) (which added the “or effect” language to an additional provision), 28 CFR 42.104(b)(6) (which introduced the “affirmative action” language to the regulations), and 28 CFR 42.104(c)(2) (which extends the rule to Federal financial assistance whose primary objective is not to provide employment). <E T="03">Id.</E> at 17955. In 2003, the Department added language regarding “program or activity” to reflect the amendment of Title VI by the Civil Rights Restoration Act of 1987. <E T="03">See</E> 68 FR 51334, 51364 (Aug. 26, 2003); Public Law 100-259, sec. 6, 102 Stat. 28, 31 (1988). Thus, beyond the required updating of the phrase “program or activity” pursuant to the Civil Rights Restoration Act, the Department has not substantively updated its Title VI regulations since 1973--over 50 years ago. The Department's implementing regulation describing the scope of prohibited discriminatory conduct, 28 CFR 42.104, currently includes prohibitions on conduct that has an unintentional disparate impact, discussed more fully below. <HD SOURCE="HD2">C. Relevant Supreme Court Decisions</HD> The Supreme Court has found that Title VI, 42 U.S.C. 2000d, does not prohibit facially neutral policies that result in disparate outcomes when there is no discriminatory intent. Rather, it prohibits only intentional discrimination. In 1978, five years after the Department last substantively amended its Title VI regulations, the Supreme Court found that Congress intended Title VI to prohibit “only those racial classifications that would violate the Equal Protection Clause” if committed by a government actor. <E T="03">Regents of the Univ. of Cal.</E> v. <E T="03">Bakke,</E> 438 U.S. 265, 287 (1978) (Powell, J., announcing the judgment of the Court); <E T="03">id.</E> at 325, 328, 352-53 (Brennan, White, Marshall, and Blackmun, JJ., concurring in part and dissenting in part); <E T="03">see also Students for Fair Admissions, Inc.</E> v. <E T="03">President & Fellows of Harvard Coll.,</E> 600 U.S. 181, 198 n.2 (2023) (“ <E T="03">SFFA</E> ”). Shortly before <E T="03">Bakke'</E> s Title VI holding, the Supreme Court held that the Equal Protection Clause requires proof of intentional discrimination and that “a law or other official act” that has a “racially disproportionate impact” alone does not violate that Clause. <E T="03">Washington</E> v. <E T="03">Davis,</E> 426 U.S. 229, 239 (1976); <E T="03">see also Vill. of Arlington Heights</E> v. <E T="03">Metro. Hous. Dev. Corp.,</E> 429 U.S. 252, 265 (1977) (“Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.”). Taken ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 60k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━