ED Rescinds Two Sets of Civil Rights Requirements: The Changes, Effects, and a Notice-and-Comment Problem
Last week the U.S. Department of Education (ED) issued final rules changing federal civil rights oversight of schools and colleges. Both rules took effect immediately without proposed rules or an opportunity for public comment. In addition to making significant substantive changes, ED’s decision to bypass notice and comment raises a procedural question under the General Education Provisions Act (GEPA).
In this post:
I. The Title VI Rule
On July 24, 2026, ED issued a final rule eliminating disparate impact liability from its Title VI regulations. 91 FR 46733.
The provisions eliminated by the rule were not all adopted at the same time. The Department of Health, Education, and Welfare (HEW) issued the original Title VI regulations on December 4, 1964, several months after Congress enacted the Civil Rights Act of 1964. Those regulations included the principal disparate impact provision, which prohibited recipients from using criteria or methods of administration that had the effect of subjecting individuals to discrimination or defeating the objectives of a federally assisted program based on race, color, or national origin.
HEW added or expanded several related provisions in 1973, including requirements concerning facility siting, corrective action following prior discrimination, voluntary affirmative action, and certain employment practices. When ED was established in 1980, it transferred the HEW Title VI regulations into 34 C.F.R. Part 100. The regulations remained largely unchanged until the July 2026 rescission.
Under the former regulatory framework, ED’s Office for Civil Rights (OCR) could find a violation when a facially neutral policy or practice caused an unjustified discriminatory effect based on race, color, or national origin. A statistical disparity alone was not necessarily sufficient. OCR generally considered whether the challenged policy caused the disparity, whether the recipient had a substantial legitimate justification for the policy, and whether comparably effective alternatives would produce less discriminatory harm.
The new rule removes that basis for administrative enforcement. OCR must now establish intentional discrimination. Statistical disparities may still provide evidence of discriminatory intent—particularly when considered with the history, design, application, or foreseeable consequences of a policy—but a disproportionate effect can no longer independently establish a violation of ED’s Title VI regulations.
The rule makes several additional changes:
It removes the general prohibition against criteria or methods of administration that have discriminatory effects.
It changes the facility-siting provision so that a site selection violates the regulation only if it was made with a discriminatory purpose, rather than because it has the purpose or effect of excluding or disadvantaging a protected group.
It removes the requirement that recipients take affirmative action to remedy the effects of their own prior discrimination.
It removes the provision permitting recipients to take voluntary affirmative action when conditions have limited participation by people of a particular race, color, or national origin.
It removes a provision addressing employment practices that tend to exclude people from the benefits of federally assisted programs, even when providing employment is not a primary purpose of the federal assistance.
It removes illustrative examples involving facility siting, corrective action, and voluntary consideration of race to expand services to groups that were not adequately served.
It removes a provision referring to Executive Order 11246, which was rescinded in 2025.
ED based the rule on its interpretation of Title VI and several Supreme Court decisions, including Alexander v. Sandoval, Students for Fair Admissions v. Harvard, Loper Bright Enterprises v. Raimondo, and Louisiana v. Callais. It also cited Executive Order 14281, which directed agencies to eliminate disparate impact liability to the maximum degree possible.
II. The Practical Effect of the Title VI Rule Changes
The most immediate change concerns OCR’s administrative enforcement authority. Since the Supreme Court’s 2001 decision in Sandoval, private plaintiffs have not had a private right of action to enforce Title VI disparate impact regulations. The former regulations nevertheless allowed OCR to investigate disparate impact allegations, negotiate corrective measures, and, in appropriate cases, pursue administrative enforcement against recipients of ED funding.
OCR can no longer use that framework to challenge a policy based solely on an unjustified discriminatory effect. Policies involving admissions, discipline, student assignment, program eligibility, access to advanced coursework, distribution of educational resources, or other criteria and methods of administration will generally require evidence of discriminatory intent before OCR can find a Title VI violation.
Intent is usually more difficult to prove than effect. Statistical disparities can prompt an investigation or support an inference of intent, but investigators may also need evidence concerning the policy’s development, stated and unstated purposes, departures from ordinary procedures, knowledge of likely consequences, or inconsistent application. Some policies that would have been subject to corrective action under the former framework may therefore fall outside OCR’s revised Title VI enforcement authority.
The removal of the remedial and voluntary affirmative action provisions creates a separate concern. It does not establish that every effort to address racial disparities is unlawful. It does, however, eliminate provisions that previously required or expressly permitted certain race-conscious measures. ED’s preamble states that remedial use of race must be tied to specific, identified unlawful discrimination and narrowly tailored to remedy that discrimination. Recipients considering race-conscious measures should therefore review the factual record, legal authority, design, and duration of those measures rather than assuming that the former regulatory authorization remains available.
III. The Vocational Education Rescission
On July 23, ED issued a separate final rule rescinding the Guidelines for Eliminating Discrimination and Denial of Services on the Basis of Race, Color, National Origin, Sex, and Handicap in Vocational Education Programs. 91 FR 46285.
The Guidelines arose from the Adams v. Richardson litigation, in which plaintiffs alleged that HEW had failed to enforce Title VI against segregated and discriminatory education systems. A 1977 consent order directed HEW to develop standards explaining how its civil rights regulations applied to vocational education. HEW proposed the Guidelines in December 1978 and issued them in final form on March 21, 1979. 44 FR 17162. ED incorporated them into the appendices to its Title VI, Section 504, and Title IX regulations in 1980. They remained substantively unchanged for more than 47 years, although ED issued updated procedures in 2020 giving states additional flexibility in implementing them.
The Guidelines did considerably more than establish a state reporting requirement. They applied civil rights requirements to nine areas of vocational education:
Recruitment, admissions, counseling, and student assignment;
Physical accessibility;
Comparability of facilities;
Services for students with disabilities;
Financial assistance;
Work study, cooperative education, and job placement;
Housing;
Employment practices; and
Administrative compliance procedures.
For example, the Guidelines addressed admissions criteria that disproportionately excluded protected groups, steering students toward programs based on sex or disability, accessibility of facilities, segregation within vocational schools, comparable equipment and instructional resources, treatment of students with limited English proficiency, and discrimination by employers participating in cooperative education or job placement programs.
The Guidelines also established the Methods of Administration (MOA) structure. That structure required 68 state educational agencies and other covered agencies overseeing CTE programs to:
Collect and analyze civil rights data;
Use that information to select subrecipients for periodic compliance reviews;
Review selected secondary and postsecondary CTE programs;
Issue findings when they identified noncompliance;
Negotiate corrective action plans with subrecipients;
Provide technical assistance; and
Submit biennial reports on their MOA activities and findings to OCR.
The underlying civil rights statutes and their implementing regulations remain in effect. CTE programs must continue to comply with Title VI, Title IX, and Section 504. OCR retains authority to investigate complaints, initiate compliance reviews and directed investigations, seek voluntary resolution, and pursue enforcement.
IV. The Procedural Question under GEPA
ED issued both rules under 5 U.S.C. § 553(a)(2), which exempts matters relating to public property, loans, grants, benefits, or contracts from the Administrative Procedure Act' notice and comment requirements. ED reasoned that the rescinded provisions imposed conditions on recipients of federal financial assistance and therefore fell within that exemption.
GEPA specifically limits ED's use of that exemption. GEPA defines a "regulation" as any generally applicable rule, regulation, guideline, interpretation, or other requirement that is prescribed by ED and has legally binding effect in connection with, or affecting, the provision of financial assistance under an applicable program. 20 U.S.C. § 1232(a).
For a regulation meeting that definition, GEPA permits ED to invoke the § 553(a)(2) exemption only in two circumstances: when the regulation governs the first grant competition under a new or substantially revised program authority, or when the Secretary determines that notice and comment would cause extreme hardship to the intended beneficiaries of the affected program. 20 U.S.C. § 1232(d). Neither exception appears to apply to these final rules, and neither rule mentions GEPA nor explains why the statute's limitation does not apply.
ED could argue that these rules implement civil rights statutes of general application rather than statutes authorizing particular ED grant programs and therefore do not affect financial assistance under an applicable program. However, the GEPA definition does not require the regulation itself to be an applicable program; it requires only that the regulation have legally binding effect "in connection with, or affecting, the provision of financial assistance under any applicable program." 20 U.S.C. § 1232(a)(2). An "applicable program" is any program for which the Secretary or ED has administrative responsibility under law. 20 U.S.C. § 1221(c)(1). ED's Title VI regulations attach nondiscrimination conditions to ED’s grant programs and condition the receipt of that assistance on compliance, so they affect the provision of financial assistance under those applicable programs whether or not Title VI is itself such a program. See 34 C.F.R. §§ 100.2, 100.4. That reading aligns with ED's own APA analysis, which characterized the rescinded provisions as legally binding conditions on federal assistance and relied on that connection to invoke § 553(a)(2).
ED may also invoke 20 U.S.C. § 1221(d), which provides that nothing in the chapter "shall be construed to affect the applicability of title VI of the Civil Rights Act of 1964 . . . or other statutes prohibiting discrimination, to any applicable program." That clause is best read to preserve the substantive reach of Title VI and the other civil rights statutes, not to exempt ED's implementing regulations from GEPA's procedural requirements. Requiring notice and comment before ED rescinds its Title VI regulations does not change whether Title VI applies to any Department program; it governs only the process ED must follow to amend its own rules.
The argument is clearest for the Title VI rule, which amends binding regulatory text in 34 C.F.R. §§ 100.3 and 100.5. The vocational education rescission presents a closer question because the removed provisions were styled as "Guidelines." That label does not resolve the issue. GEPA's definition expressly reaches guidelines with legally binding effect, 20 U.S.C. § 1232(a); the Guidelines were codified in the Code of Federal Regulations as appendices to Parts 100, 104, and 106; and ED's final rule repeatedly states that the Guidelines "required" states to perform specified monitoring activities and "imposed" a proactive compliance structure. 91 FR 46285, 46286 (July 23, 2026).
Whether a court would sustain a GEPA challenge would turn on statutory interpretation, standing, reviewability, and remedy. Even so, ED relied exclusively on an APA exception that Congress expressly restricted for covered ED regulations, and it did so without addressing the restriction. That omission presents a substantial procedural vulnerability.
V. What Recipients Should Do Now
Both rules are currently effective. OCR may no longer establish a violation of ED’s Title VI regulations based on an unjustified disparate impact without evidence of discriminatory intent, and states are no longer federally required by the rescinded Guidelines to conduct the former MOA reviews.
Recipients should not interpret the changes as eliminating their broader civil rights obligations. Title VI continues to prohibit intentional discrimination. Public institutions and other state actors remain subject to the Equal Protection Clause. Section 504, Title IX, other federal statutes, grant requirements, and state civil rights laws may impose additional obligations. Statistical disparities also remain relevant evidence in intentional discrimination investigations and can identify operational problems even when they do not establish a federal violation by themselves.
The durability of the federal changes remains uncertain. If litigation is initiated, and a court concludes that GEPA required notice and comment, it could vacate one or both rules; depending on the remedy, the prior provisions could return to effect while ED conducts a new rulemaking. Given the current posture, recipients should treat the rules as operative while avoiding unnecessary compliance changes that would be difficult to reverse.
Sligo Law Group advises states, districts, colleges, and other institutions on federal civil rights compliance and monitoring. For questions about how these rescissions affect your programs, contact us at contact@sligolawgroup.com or (202) 888-2084.