Almost eight months after the President issued the Executive Order, “Restoring Equality of Opportunity and Meritocracy,” the United States Department of Justice took action to eliminate Title VI protections against disparate impact discrimination. Below, a review of the recent Federal action and discussion of its impact on public school employers.
The Executive Order
On April 23, 2025, President Trump issued Executive Order No. 14281, “Restoring Equality of Opportunity and Meritocracy” (the “Order”), establishing a policy “to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible . . .”
Disparate impact liability is a legal concept in which entities can be held liable for ostensibly neutral policies that, even without discriminatory intent, nevertheless cause disproportionate harm to a protected class… Examples of such policies include a pre-employment policy testing physical strength or a college degree requirement unnecessary for the advertised position. Disparate impact liability differs from intentional discrimination, because it focuses on the outcome rather than the intent of the actor.
As it pertains to Title VI of the Civil Rights Act of 1964 (“Title VI”), the Order 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.”
What is Title VI?
Title VI is a Federal Civil Rights Act prohibiting discrimination on the basis of race, color, or national origin in any program or activity receiving Federal financial assistance. Virtually all public schools in the United States are subject to Title VI, as they are recipients of Federal funding. Title VI also enables Federal departments and agencies that provide Federal funding to “effectuate the provisions” of Title VI, which includes issuing rules and regulations. Hence, public schools are subject to the rules and regulations of the Federal agencies issuing their funding and face the risk of losing such funds for their noncompliance.
DOJ’s Final Rule
Effective December 10, 2025, the Department of Justice (“DOJ”)’s Final Rule (the “Rule”) implemented changes to Title VI regulations in accordance with the Order. Specifically, the Rule amends Title VI to eliminate disparate-impact liability.
The Rule asserts that Title VI prohibits intentional discrimination and “makes no reference to unintentional disparate effects or impact.” As a result, the Rule provides: (1) Title VI does not enable Federal departments and agencies to prohibit unintentional disparate effects or impact; and (2) the DOJ “will not pursue Title VI disparate-impact liability against its Federal-funding recipients.” Practically, this means schools are unlikely to face Title VI actions based on a disparate impact theory, though they are still subject to Title VI actions as a result of intentional discrimination.
SCOTUS Decisions
The Supreme Court of the United States (“SCOTUS”) has issued decisions concluding that Title VI prohibits only intentional discrimination:
• In 1976, SCOTUS held that a law or other official act is not unconstitutional under the Equal Protection Clause solely because it has a racially disproportionate impact. Washington v. Davis, 426 U.S. 229 (1976).
• In 1978, SCOTUS held that Title VI prohibits “only those racial classifications that would violate the Equal Protection Clause if employed by a State or its agencies.” Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 269 (1978).
• In 2001, SCOTUS reaffirmed that Title VI “prohibits only intentional discrimination.” Alexander v. Sandoval, 532 U.S. 275, 280 (2001).
In light of these cases, the DOJ has concluded that “Title VI’s statutory prohibition, like the Equal Protection Clause, extends only to intentional discrimination.”
Changes to Title VI
The new DOJ Rule removes several parts of the Title VI regulations that previously allowed claims based on unintentional discrimination (also known as “disparate impact”). Here’s what changed:
Policies with discriminatory effects. The New Rule deletes a provision that had allowed the government to hold schools and other recipients of federal funds responsible if their policies ended up discriminating against people—even without intent.
Facility locations. The New Rule narrows a regulation that previously prohibited decisions that had the purpose or effect of discriminating. By removing “or effect,” only intentionally discriminatory choices are now prohibited.
Affirmative action. The New Rule removes a provision permitting affirmative action efforts designed to address past conditions that limited participation by certain racial or ethnic groups. DOJ argues this provision was inconsistent with Equal Protection principles.
Employment practices. A rule that had banned employment practices that tended to have a discriminatory effect—again, regardless of intent—has been removed. Only intentional discrimination remains prohibited.
Bottom Line For Schools
The Rule applies to recipients of Federal funding, including most schools. While the Rule may appear to lower compliance burdens on employers, other local, state, and Federal antidiscrimination laws may offer employees protections against disparate impact discrimination. For example, employees may still pursue claims of disparate impact discrimination under Title VII of the Civil Rights Act, prohibiting employment discrimination based on race, color, religion, sex, and national origin.
Neither the Order nor the Rule require school administrators to take action at this time. However, school administrators may wish to review their policies and procedures to ensure compliance with applicable local, state, and Federal antidiscrimination laws. School administrators are also encouraged to brief their senior leadership and human resources professionals on these recent changes to ensure they understand the latest Federal policy.
