Implications for Colleges and Universities

On December 10, 2025, the US Department of Justice (DOJ) announced that it was rescinding portions of Title VI regulations that impose liability for “criteria or methods of administration which have the effect of subjecting individuals to discrimination,” also known as disparate impact liability. DOJ will now enforce Title VI only against intentional discrimination, not against neutral policies that have disproportionate effects on racial or ethnic groups. The move follows an April 23, 2025 Executive Order directing the Attorney General to review Title VI regulations and “initiate appropriate action to repeal or amend” those regulations “to the extent they contemplate disparate-impact liability.”

What is Disparate-Impact Liability?

Title VI of the Civil Rights Act prohibits discrimination on the basis of race, color, or national origin in programs receiving federal funding. In enforcing Title VI, courts and federal agencies draw a distinction between intentional discrimination, which occurs when policies or practices purposefully treat people of different protected classes differently; and disparate impact discrimination, which occurs when a neutrally-worded policy or practice disproportionately affects people differently based on their protected characteristics, even where there is no apparent discriminatory intent.

In Alexander v. Sandoval, 532 US 275 (2001), the Supreme Court held that private individuals cannot sue to enforce DOJ’s disparate-impact regulations under Title VI. Since then, disparate-impact liability under Title VI has been limited to government enforcement actions, carried out by DOJ and other federal agencies against entities that receive federal funding.

What Regulations Did DOJ Change?

DOJ’s Final Rule rescinded or amended several regulatory provisions, including:

• Rescinded 28 CFR 42.104(b)(2), which prohibited federal funding recipients from using “criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respects individuals of a particular race, color, or national origin.”
• Amended 28 CFR 42.104(b)(3) to remove language referencing discriminatory effects of decisions regarding the locations of facilities.
• Rescinded 28 CFR 42.104(b)(6), which 1) authorized federal funding recipients to take affirmative action to overcome disparate-impact discrimination and 2) required recipients to take affirmative action to overcome their own, past intentional discrimination.
• Rescinded 28 CFR 42.104(c)(2), which prohibited employment practices that “tend to have a discriminatory effect.”

How Does the DOJ’s Action Impact Enforcement by the Department of Education’s Office for Civil Rights Against Colleges & Universities?

With this rule change, the risk of Title VI liability for policies or practices that have a discriminatory disparate impact shrinks even further: the DOJ will no longer pursue actions on this basis and, after Sandoval, liability for disparate impact also cannot be pursued in court.

The DOJ’s action does not – yet – impact the Title VI regulations enforced by agencies other than the DOJ, such as the Department of Education or Department of Health and Human Services. However, Executive Order 14281, “Restoring the Equality of Opportunity and Meritocracy” directs other agencies to take similar steps, and the Department of Education has indicated it will propose new “Procedures for Investigations and Enforcement of Title VI Violations,” which it explains 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.

The text of these forthcoming OCR amendments to Title VI and their impact on OCR enforcement efforts remains to be seen.

Title VII, which prohibits discrimination in employment by entities that receive federal funding, has regulations prohibiting disparate impact discrimination that remain in effect. State laws may also prohibit disparate impact discrimination in educational settings, and institutions should be aware of changes in state law that either add or amend the application of non-discrimination statutes to include disparate impact liability.

How Hunton’s Higher Education Team Can Help
Colleges and universities should remain abreast of the latest federal civil rights laws, regulations, agency guidance and enforcement actions. If you have questions about this and implications for your institution, please do not hesitate to reach out your Hunton Higher Education attorney for assistance.