Education Department rescinds disparate impact regulations

Dive Brief:

The U.S. Department of Education’s Office for Civil Rights announced Thursday that it has rescinded regulations to implement disparate impact provisions — which have been used to investigate districts accused of racial discrimination — under Title VI of the Civil Rights Act of 1964.
The department removed disparate impact in a final rule published Friday in the Federal Register without seeking public comment beforehand. The change is in accordance with an executive order issued last year by President Donald Trump that called to “eliminate” disparate impact liability “in all contexts to the maximum degree possible to avoid violating the Constitution, Federal civil rights laws, and basic American ideals.”
The removal of OCR’s disparate impact tool drew the ire of 60 civil rights and education organizations, who said in a Thursday statement the move will harm Black, Latino, Asian American, Native American students and other students of color who face higher discrimination rates. The organizations also called for the immediate reinstatement of the provision to prevent systemic discrimination based on race, color and national origin.

Dive Insight:

Despite the Education Department’s rescission of the Title VI regulations for disparate impact, the federal change “does not supersede state laws, state constitutional guarantees, local school board policies, or the United States Constitution,” said Verjeana McCotter-Jacobs, executive director and CEO of the National School Boards Association, in a Friday statement.  

“Federal administrative policy cannot erode the duty of states and local school districts to serve every child fairly,” McCotter-Jacobs said. “Now more than ever, state legislatures, state education agencies, and local school boards must step up to ensure robust civil rights protections remain firm in every community across the country.”

In the final rule, the Education Department said that it rescinded its enforcement of disparate impact liability given the provision is in “considerable tension” with Title VI and the Constitution. The department also said that disparate impact causes confusion and uncertainty, raises compliance costs for recipients of federal funds, and does “not serve the public interest.”

The department’s final rule added that the “best reading” of Title VI — as it falls under the Constitution’s equal protection clause — is that the measure prohibits intentional discrimination but does not permit the Education Department to impose disparate impact liability.

Disparate impact has been used to describe the disproportionate and often unintentional effects of certain district policies on historically marginalized students. During the Obama administration, OCR regularly investigated districts accused of systemic racial discrimination under the disparate impact enforcement. The first Trump administration reversed that practice until the Biden administration revived it once again. 

In the department’s Thursday announcement on the rescission, the agency said that disparate impact has been used for decades, but the “Obama Administration weaponized it as a tool for the radical left, forcing schools to make race a factor when considering disciplinary actions.”

More broadly, the department blamed Democrat administrations for using OCR to find schools guilty of violating Title VI, “for even-handedly applying race-neutral policies – with no discriminatory intent – solely because data indicated the school disciplined more minority students.”

The Education Department’s Assistant Secretary for Civil Rights Kimberly Richey said in a Thursday statement that the changes will allow schools to feel “empowered to address classroom issues without fearing the federal government will weaponize antidiscrimination laws.”

Disparate impact has been used to address school discipline or school closure policies that seem neutral but disproportionately harm or disadvantage students of color instead of applying solutions to better serve all students, said civil rights groups, including the NAACP’s Legal Defense Fund and EdTrust. 

Kristin Woelfel, who serves as policy counsel for equity in civic technology at the Center for Democracy and Technology, also warned in a Friday statement that the rescission of disparate impact not only “undoes decades of legal precedent,” but it also is happening as more research reveals that the use of artificial intelligence in schools is “unintentionally harming students.”

Rep. Bobby Scott, D-Va., ranking member of the House Education and Workforce Committee, said in a Thursday statement that disparate impact “is critical to preventing discrimination and correcting historical wrongs,” and removing it is part of Trump’s “larger agenda to drag America back to the Jim Crow era.”