The DOJ issued a final rule on Dec. 9, 2025, entitled “Rescinding Portions of Department of Justice Title VI Regulations to Conform More Closely with the Statutory Text and to Implement Executive Order 14281.” With this final rule, the DOJ removed regulations issued under Title VI of the Civil Rights Act of 1964 that precluded recipients of federal funding from engaging in disparate impact discrimination on the basis of race, color or national origin. The DOJ’s final rule implements the April 23, 2025, executive order 14281, “Restoring Equality of Opportunity and Meritocracy,” which seeks to “eliminate the use of disparate-impact liability in all contexts to the maximum degree possible[.]” In line with the E.O.’s mandate for agencies to “deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability,” this DOJ final rule directs the Attorney General to “initiate appropriate action to repeal or amend the implementing regulations for Title VI … for all agencies to the extent they contemplate disparate-impact liability.”
The regulatory action removes four provisions of the DOJ Title VI regulations:
- Removes the primary provision that prohibited criteria or methods of administration that have a disparate impact, 28 C.F.R. § 42.104(b)(2)
- Removes provisions prohibiting disparate effects when selecting a site or location, 28 C.F.R. § 42.104(b)(3)
- Removes provisions authorizing “affirmative action” as a remedial action in cases of disparate impact and purposeful discrimination, 28 C.F.R. § 42.104(b)(6)
- Removes provisions that prohibit disparate impact in employment practices and that reach employment practices otherwise exempt from Title VI when those employment practices may cause a disparate impact in the delivery of program benefits or administration of the program, 28 C.F.R. § 42.104(c)
According to the DOJ, “The section of 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.” In promulgating this final rule, the DOJ states that the removal of these regulations will address statutory and constitutional concerns with implementation of Title VI and reduce compliance costs, including by eliminating the need for recipients to conduct a disparate impact analysis. The DOJ likely will work with other federal agencies to make corresponding changes to other agencies’ Title VI regulations.
While these regulatory developments mean that recipients will no longer face disparate impact investigations under Title VI (and under settled Supreme Court case law, there is no private right of action for a disparate impact claim under Title VI), this final rule does not address other federal laws prohibiting disparate impact discrimination including Title VII, which references and prohibits unintentional disparate impact and authorizes private rights of action.
Similarly, certain state laws preclude practices that have a disparate impact. These laws will be enforced by state agencies and/or in private actions in state courts. One example is the growing number of states that enacted laws or issued regulations that focus on disparate impact caused by AI. Disparate impact is generally viewed as the primary framework for addressing discrimination concerns in the use of AI.
For questions about this DOJ regulatory action and the implications on federal grants and other programs of financial assistance, and potential intersection with other laws, contact the authors, your McGuireWoods contact, or a member of the firm’s Higher Education Enforcement and Regulatory Counseling, Employment Litigation or Government Investigations & White Collar Litigation Practice Groups.