ab ovo

Seventeen agencies delete disparate impact from their Title VI regulations

5 September 2026

Between 16 May 2025 and 26 August 2026 at least seventeen federal agencies amended or rescinded the disparate-impact provisions of their regulations implementing Title VI of the Civil Rights Act of 1964.1 The Justice Department went first among the cabinet departments, on 10 December 2025, “to more closely align its regulations to the language that Congress enacted in Title VI prohibiting intentionally discriminatory conduct.”2 Title VI itself provides that no person 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,” and directs each agency extending such assistance to “effectuate” that section “by issuing rules, regulations, or orders of general applicability.”34 The rules implement Executive Order 14281 of 23 April 2025, which states 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” (see EO 14281 directs rollback of disparate-impact regulations).25

  1. The change is the deletion of one word and the survival of another. The Justice Department’s rule makes four amendments to 28 CFR 42.104: it “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’”; “removes the two uses of the phrase ‘or effect’ from 28 CFR 42.104(b)(3)”; “rescinds the full text of 28 CFR 42.104(b)(6)”; and “rescinds the full text of 28 CFR 42.104(c)(2), which addresses employment practices.”2 What remains of paragraph (b)(3) is the intent test standing alone: a recipient “may not make selections with the purpose of excluding individuals from, denying them the benefits of, or subjecting them to discrimination … or with the purpose of defeating or substantially impairing the accomplishment of the objectives of the Act.”2

  2. Nothing about the uniformity is coincidental; a statute requires it. Section 602 of Title VI provides that no rule issued under it “shall become effective unless and until approved by the President.”4 Executive Order 12250 of 1980 delegates that function: “[t]he Attorney General shall coordinate the implementation and enforcement by Executive agencies of … Title VI of the Civil Rights Act of 1964,” and other agencies’ Title VI regulations “are also subject to the Attorney General’s approval.”26 The Justice Department describes itself as “the lead Federal agency responsible for defining the nature and scope of Title VI’s prohibition.”2 The agencies that followed say so in their titles: the Agriculture Department’s rule is styled a rescission “To Conform More Closely With the Department of Justice’s” regulations,7 and the General Services Administration states that its approach “is consistent with the analytical framework used by DOJ in its Title VI final rule.”18

  3. Almost none of it went through notice and comment, and the route is not the good-cause exception. The Justice Department issued its rule “without prior public notice and comment or a delayed effective date 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,’” 5 U.S.C. 553(a)(2), on the ground that Title VI “concerns non-discrimination conditions on the receipt of Federal financial assistance.”29 The phrase “good cause” appears in none of the five rules read for this post.21011128 The Education Department spells out the consequence the others leave implicit: “because the exception in section 553(a)(2) applies to section 553 as a whole, the Department issues this action without the delayed effective date typically required by 5 U.S.C. 553(d)(1).”11 Fifteen of the seventeen rules took effect on the day they were published.1

  4. The agencies do not all describe Sandoval the same way. Each rule rests on Alexander v. Sandoval, 532 U.S. 275 (2001), for the proposition that Title VI “prohibits only intentional discrimination.”112 The Labor and Education Departments also record what the case did not decide: that the Supreme Court “assume[d],” without deciding, that the disparate-impact regulations were valid, while describing them as in “considerable tension” with the Court’s Title VI precedents.1011 The Treasury Department’s rule contains no such acknowledgement.12 The distinction matters because the regulations now being removed were left standing by the decision the removals rely on. Every quotation from Sandoval in this post is reported as the agency rules quote it; the opinion itself could not be opened.13

Footnotes

  1. Federal Register rules eliminating or narrowing Title VI disparate-impact provisions, verified through the Federal Register API on 5 September 2026 and listed in publication order: Energy, 90 FR 20777 (16 May 2025); Justice, 90 FR 57141 (10 December 2025); Commerce, 91 FR 20326 (16 April 2026); Interior, 91 FR 30239 (22 May 2026); Transportation, 91 FR 35424 (11 June 2026); Agriculture, 91 FR 36511 (17 June 2026), styled a rescission “To Conform More Closely With the Department of Justice’s” regulations; Homeland Security, 91 FR 36963 (22 June 2026); Labor, 91 FR 40372 (2 July 2026); NASA, 91 FR 40872 (6 July 2026); State, 91 FR 42339 (9 July 2026); Defense, 91 FR 46724 (24 July 2026); Health and Human Services, 91 FR 46746 (24 July 2026); Education, 91 FR 46733 (24 July 2026); Treasury, 91 FR 48766 (3 August 2026); National Science Foundation, 91 FR 49283 (4 August 2026); General Services Administration, 91 FR 52537 (14 August 2026, effective 14 September 2026); and the National Foundation on the Arts and the Humanities, 91 FR 55008 (26 August 2026). All but two took effect on the date of publication: the exceptions are Energy, published 16 May 2025 and effective 15 July 2025, and the General Services Administration, published 14 August 2026 and effective 14 September 2026. Each publication and effective date in this list was checked individually against the Federal Register API on 5 September 2026. Seventeen is a floor rather than a count: the search matched on the phrase “Title VI Regulations” in the document title, and agencies using other titles would not appear. https://www.federalregister.gov/api/v1/documents.json ↩ ↩2 ↩3

  2. Department of Justice, Civil Rights Division, “Rescinding Portions of Department of Justice Title VI Regulations To Conform More Closely With the Statutory Text and To Implement an Executive Order,” final rule, 90 FR 57141, published and effective 10 December 2025, FR Doc. 2025-22448; amends 28 CFR part 42, subpart C. Quoted: the executive summary; the four amendments to 28 CFR 42.104 and the revised text of paragraph (b)(3); the Executive Order 12250 passage and “other agencies’ Federal regulations implementing Title VI are also subject to the Attorney General’s approval”; the description of the Department as “the lead Federal agency responsible for defining the nature and scope of Title VI’s prohibition”; the Administrative Procedure Act certification relying on 5 U.S.C. 553(a)(2); and the quotation of Executive Order 14281. The revised authority citation adds “E.O. 14281, 90 FR 17537.” The rule cites as precedent for its use of the 553(a)(2) exception 82 FR 46655 (6 October 2017) and 85 FR 47899 (7 August 2020), and cites Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212, 217–18 (2022), for Title VI as spending-clause legislation. It records that the original model Title VI regulations were issued by the Department of Health, Education, and Welfare on 4 December 1964. https://www.federalregister.gov/documents/2025/12/10/2025-22448/rescinding-portions-of-department-of-justice-title-vi-regulations-to-conform-more-closely-with-the ↩ ↩2 ↩3 ↩4 ↩5 ↩6 ↩7 ↩8 ↩9

  3. 42 U.S.C. § 2000d, section 601 of the Civil Rights Act of 1964: “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.” https://www.govinfo.gov/link/uscode/42/2000d?link-type=html ↩

  4. 42 U.S.C. § 2000d-1, section 602: each agency empowered to extend federal financial assistance “is authorized and directed to effectuate the provisions of section 2000d of this title … by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken. No such rule, regulation, or order shall become effective unless and until approved by the President.” The presidential-approval requirement is what Executive Order 12250 delegates to the Attorney General. https://www.govinfo.gov/link/uscode/42/2000d-1?link-type=html ↩ ↩2

  5. Executive Order 14281, “Restoring Equality of Opportunity and Meritocracy,” signed 23 April 2025, 90 FR 17537 (28 April 2025), quoted as the Justice Department quotes it. See EO 14281 directs rollback of disparate-impact regulations. https://www.federalregister.gov/citation/90-FR-17537 ↩

  6. Executive Order 12250, “Leadership and Coordination of Nondiscrimination Laws,” 2 November 1980, 45 FR 72995, quoted as the Justice Department quotes it at 90 FR 57141: section 1-201, “The Attorney General shall coordinate the implementation and enforcement by Executive agencies of … Title VI of the Civil Rights Act of 1964,” and, at 45 FR 72996, the provision making other agencies’ Title VI regulations subject to the Attorney General’s approval. The order is set out as a note under 42 U.S.C. 2000d-1. ↩

  7. Department of Agriculture, “Rescinding Portions of U.S. Department of Agriculture Title VI Regulations To Conform More Closely With the Department of Justice’s Regulations To Implement Executive Order 14281,” final rule, 91 FR 36511, published 17 June 2026, FR Doc. 2026-12139. The title is quoted for the phrase that distinguishes it from the rest of the stream: every other rescission in this group conforms to “the Statutory Text”, and this one conforms to the Department of Justice’s regulations. Title confirmed against the Federal Register API on 21 September 2026. https://www.federalregister.gov/documents/2026/06/17/2026-12139/rescinding-portions-of-us-department-of-agriculture-title-vi-regulations-to-conform-more-closely ↩

  8. General Services Administration, “General Services Administration Property Management Regulation (GSPMR): Nondiscrimination in Programs Receiving Federal Financial Assistance,” final rule, 91 FR 52537, published 14 August 2026, effective 14 September 2026, FR Doc. 2026-16584, moving the agency’s Title VI regulations from the Federal Property Management Regulations to the GSPMR. Quoted: “This approach is consistent with the analytical framework used by DOJ in its Title VI final rule, see 90 FR at 57147, which similarly relied on qualitative assessment,” GSA being “unable to reliably quantify the economic effects associated with the removal of disparate-impact liability.” https://www.federalregister.gov/documents/2026/08/14/2026-16584/general-services-administration-property-management-regulation-gspmr-nondiscrimination-in-programs ↩ ↩2

  9. 5 U.S.C. § 553(a)(2) provides that the section applies “except to the extent that there is involved … a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.” Because the exception is written against section 553 as a whole, it removes the delayed effective date at § 553(d) along with the notice-and-comment requirements at § 553(b) and (c). This is a categorical exemption and is distinct from the good-cause exception at § 553(b)(B), which none of the rules read for this post invokes. https://www.govinfo.gov/link/uscode/5/553?link-type=html ↩

  10. Department of Labor, “Rescinding Portions of Department of Labor Title VI Regulations,” final rule, 91 FR 40372, published and effective 2 July 2026, FR Doc. 2026-13371; amends 29 CFR part 31. Quoted: “Although the Supreme Court in Sandoval assumed, without deciding, that DOJ’s disparate-impact regulation was valid, the Court wrote that the regulation was in ‘considerable tension’ with the Supreme Court’s Title VI precedents. Sandoval, 532 U.S. at 281-82, 284-85.” The rule relies on 5 U.S.C. 553(a)(2) in the same terms as the Justice Department’s. https://www.federalregister.gov/documents/2026/07/02/2026-13371/rescinding-portions-of-department-of-labor-title-vi-regulations ↩ ↩2

  11. Department of Education, “Rescinding Portions of the Department of Education Title VI Regulations To Align With the Statutory Text and Conform to Executive Order 14281,” final rule, 91 FR 46733, published and effective 24 July 2026, FR Doc. 2026-15019; amends 34 CFR part 100. Quoted: the 553(a)(2) certification and “Further, because the exception in section 553(a)(2) applies to section 553 as a whole, the Department issues this action without the delayed effective date typically required by 5 U.S.C. 553(d)(1)”; the Sandoval passages, including that the Court “assume[d],” without deciding, that the regulations were valid; and the recital that “The Department of Justice has reviewed and approved this rule” under Executive Order 12250. https://www.federalregister.gov/documents/2026/07/24/2026-15019/rescinding-portions-of-the-department-of-education-title-vi-regulations-to-align-with-the-statutory ↩ ↩2 ↩3 ↩4

  12. Department of the Treasury, “Rescinding Portions of Department of the Treasury Title VI Regulations To Conform More Closely With the Statutory Text and To Implement an Executive Order,” final rule, 91 FR 48766, published and effective 3 August 2026, FR Doc. 2026-15720; amends 31 CFR part 22. The rule cites Sandoval but does not record the Court’s assumption that the disparate-impact regulations were valid; the phrases “assume,” “we assume” and “must assume” do not appear in it. https://www.federalregister.gov/documents/2026/08/03/2026-15720/rescinding-portions-of-department-of-the-treasury-title-vi-regulations-to-conform-more-closely-with ↩ ↩2

  13. Alexander v. Sandoval, 532 U.S. 275 (2001). Every quotation from the opinion in this post is reported as the agency rules quote it, and the opinion itself was not opened. The United States Reports volume served by the Library of Congress at tile.loc.gov is a bitonal page scan filtered with JBIG2Decode and carries no text layer, and no optical character recognition was available; four agencies quoting the same passages consistently is corroboration but not a primary source. ↩

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