On December 10, 2025, the Department of Justice (“DOJ”) published a final rule amending its regulations implementing Title VI of the Civil Rights Act of 1964 (“Title VI”) to eliminate disparate-impact liability. DOJ published this rule without prior public notice and comment pursuant to the Administrative Procedure Act’s exception for rules “relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.”
This final rule follows the April 23, 2025 Executive Order, Restoring Equality of Opportunity and Meritocracy, which sought to eliminate disparate-impact liability and directed agencies to deprioritize enforcement of all statutes and regulations “to the extent they include disparate-impact liability,” reevaluate ongoing cases to make them consistent with the EO, and repeal relevant disparate impact regulations.
Below we explain what this new DOJ rule change means for institutions of higher education, and how institutions might prepare moving forward.
What is the difference between disparate-impact versus disparate-treatment liability?
Disparate-impact liability refers to situations where a facially neutral policy or practice disproportionately harms members of a protected group, even without any intent to discriminate. The focus is on outcomes rather than motives, often demonstrated through statistical evidence. For instance, a standardized test requirement that disproportionately excludes minority applicants may be challenged as having a disparate impact.
By contrast, disparate-treatment liability occurs when an individual is intentionally treated differently because of a protected characteristic such as race, sex, religion, or disability. Disparate-treatment liability is not affected by this DOJ action.
How has disparate-impact liability been traditionally used under Title VI?
Well-settled Supreme Court precedent holds that Title VI prohibits only intentional discrimination, and that there is no private right of action to enforce disparate-impact regulations promulgated pursuant to Title VI. See Alexander v. Sandoval, 532 U.S. 275 (2001).
Nonetheless, federal agency regulations have historically prohibited not only intentional discrimination but also practices that have the effect of discriminating (i.e., disparate impact) in the administrative enforcement of federally funded education and programmatic activities. This meant that federal agencies could administratively (for example, through the Office for Civil Rights) find a neutral policy violated Title VI by disproportionately harming individuals of a particular race or national origin, even without proof of intent.
Has the U.S. Department of Education amended its regulations relating to disparate impact?
Not yet, but it is likely only a matter of time. Because DOJ coordinates Title VI enforcement across federal agencies, ED will be expected to conform its regulations to DOJ’s interpretation.
In addition, as many REGucation readers may be aware, every federal agency is required to publish a report on planned regulatory actions in the near and short term on the Office of Information and Regulatory Affairs (“OIRA”) website. ED’s Spring 2025 Unified Agenda of Regulatory and Deregulatory Actions lists the ”Elimination of Disparate Impact Theory Under Title VI of the 1964 Civil Rights Act” as a forthcoming regulatory action.
Takeaways for institutions of higher education
Moving forward, it is likely that ED will take action to eliminate disparate-impact liability as a basis for proving discrimination in its regulations. This means that OCR enforcement relating to Title VI will be limited to cases with proof of intentional discrimination. Claims that neutral policies violated Title VI because they disproportionately harm protected groups will no longer be actionable under agency regulations. However, as a practical matter, even before the regulatory change it is likely that such claims would be treated skeptically by a Trump administration federal agency given this administration’s point of view.
Against this backdrop, we note three specific takeaways for institutions to consider:
First, the August 7, 2025 Executive Order, Ensuring Transparency in Higher Education Admissions, requires the Secretary of Education to expand higher education institution reporting requirements “to provide adequate transparency into admissions,” i.e., race-based admissions statistics, to be used as a tool to determine whether a higher education institution is violating S.F.F.A v. President and Fellows of Harvard College, 143 S.Ct. 2141 (2023), which prohibited race-based admissions decisions. Seemingly, any subsequent action by ED or DOJ based on a higher education institution’s admissions statistics alone would conflict with the disparate-impact executive order and/or the new DOJ rule prohibiting disparate-impact liability.
Second, higher education institutions may consider using both the EO and the DOJ’s new rule as a defense to any claim that their facially-neutral benefit programs, such as scholarships benefitting first generation students, are discriminatory because they benefit students from minority groups more. The DOJ, however, would likely view such programs as unlawful discrimination if there is evidence that certain criterion is “chosen to increase participation by specific racial or sex-based groups,” therefore evidencing intentional discrimination. See July 29, 2025 DOJ Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination, at 8.
Finally, looking ahead, OIRA’s website explains that ED will be proposing new “Procedures for Investigations and Enforcement of Title VI Violations.” The abstract states the purpose of the new regulations as follows:
“The Department intends to amend procedural regulations that apply to administrative enforcement under Title VI and under Title IX of the Educational Amendments of 1972, to better ensure that such procedures are consistent with statutory requirements while streamlining the process by which OCR seeks termination of Federal financial assistance to institutions that intentionally violate Federal civil rights laws and refuse to voluntarily come into compliance.”
While we do not have additional detail or clarity about the procedures or ED’s intent – for example, whether ED is planning to propose detailed Title IX type procedures for Title VI claims or an escalation in authority to terminate federal financial aid with more limited process – Thompson Coburn will be closely following these proposed regulatory changes and we encourage institutions to do the same.
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Thompson Coburn has previously explored topics around DEI, Title VI, and Title VII in its webinars and blog posts. Select examples include:
- Affirmative Action in Higher Education: Impact of SFFA v. Harvard and SFFA v. UNC | Thompson Coburn LLP
- Examining Title VI Compliance for Institutions of Higher Education | Thompson Coburn LLP
- When Good Policies Create Risk: Title VII and the Future of Workplace Inclusion | Thompson Coburn LLP
- President Trump’s Executive Order Banning Illegal DEI Policies: What Does It Mean for Higher Education? | Thompson Coburn LLP
For inquiries regarding Title VI compliance, institutions are welcome to contact Scott Goldschmidt, Lorrie Hargrove, or Stephanie Fredman.
