The U.S. Department of Justice (DOJ) has issued a final rule to establish “the principle of equal treatment under the law” by removing longstanding provisions for “disparate-impact liability,” which required equality of outcomes, the DOJ announced Tuesday. “For decades, the Justice Department has used disparate-impact liability to undermine the constitutional principle that all Americans must be treated equally under the law,” announced Attorney General Pamela Bondi. “No longer.”

The change concerned regulations implementing Title VI of the Civil Rights Act of 1964, which “prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving Federal financial assistance,” the DOJ explained.

However, the executive rulemaking process subtly shifted the requirements away from Congress’s initial intent by interpreting nondiscrimination to require equality in the “effect” of a policy. In 1966, the Lyndon Johnson administration’s Department of Health, Education, and Welfare adopted a model regulation that “contained a single instance of the ‘or effect’ language,” noted the DOJ final rule, published Wednesday in the Federal Register. In 1973, under the Nixon administration, “substantive changes” added additional references to the “effect” of a policy, “introduced the ‘affirmative action’ language,” and “extend[ed] the rule to Federal financial assistance whose primary objective is not to provide employment.”

Beyond a minor language change to reflect the Civil Rights Restoration Act (1987), the rule observed, “the Department has not substantively updated its Title VI regulations since 1973 — over 50 years ago.”

In the intervening years, not only has American society seen vast improvements in race relations and the prosperity of racial minorities, but the Supreme Court has also developed a detailed judicial commentary on the precise meaning of racial nondiscrimination.

The DOJ rule cited four precedents in particular. In Regents of the Univ. of Cal. v. Bakke (1978), the Supreme Court held “that Congress intended Title VI to prohibit ‘only those racial classifications that would violate the Equal Protection Clause’ if committed by a government actor.” Two years earlier, the court held in Washington v. Davis (1976) that “the Equal Protection Clause requires proof of intentional discrimination and that ‘a law or other official act’ that has a ‘racially disproportionate impact’ alone does not violate that Clause,” it continued. “Taken together, these Supreme Court cases establish that Title VI’s statutory prohibition, like the Equal Protection Clause, extends only to intentional discrimination.”

Jumping forward to the next century, the rule then cited Alexander v. Sandoval (2001), where “the Supreme Court held that private plaintiffs lacked a private right of action to enforce the Department’s ‘disparate-impact regulations.’”

Finally, the rule cited the Supreme Court’s 2024 decision, Loper Bright Enterprises v. Raimondo, which overturned the Chevron doctrine and “made clear that ‘statutes … have a single, best meaning’ that is ‘fixed at the time of enactment’” (quotation marks cleaned up).” Thus, they concluded, “Title VI’s bar on discrimination can have only one meaning. And under Supreme Court precedent, the single, best meaning of Title VI is that it ‘prohibits only intentional discrimination’ and ‘permits’ facially neutral policies that result in disparate outcomes when there is no discriminatory intent.”

Thus, judicial interpretation of Title VI conflicted with the executive interpretation of Title VI established in 1973. Although the judicial interpretation overrode the executive interpretation, the faulty principle of equal outcomes persisted in the federal code, creating confusion for states and inviting lawsuits against racially neutral policies.

“The prior ‘disparate impact’ regulations encouraged people to file lawsuits challenging racially neutral policies, without evidence of intentional discrimination,” explained Assistant Attorney General Harmeet K. Dhillon of the DOJ’s Civil Rights Division. “Our rejection of this theory will restore true equality under the law by requiring proof of actual discrimination, rather than enforcing race- or sex-based quotas or assumptions.”

Lingering “disparate impact” language also emboldened the Biden administration to target states over policies that treated races equally but did not result in equal outcomes. In August 2024, a federal court in Louisiana permanently enjoined the Biden administration from “enforcing the Title VI disparate-impact requirements” against Louisiana.

After taking office in January, President Trump proposed to scrap the problematic principle entirely. “A bedrock principle of the United States is that all citizens are treated equally under the law. This principle guarantees equality of opportunity, not equal outcomes,” Trump declared in an April 23 executive order, “Restoring Equality of Opportunity and Meritocracy.”

The order warned that “disparate-impact liability” was “a pernicious movement” that endangered this principle, “seeking to transform America’s promise of equal opportunity into a divisive pursuit of results preordained by irrelevant immutable characteristics. … Disparate-impact liability all but requires individuals and businesses to consider race and engage in racial balancing to avoid potentially crippling legal liability.”

Trump therefore directed the executive branch to “eliminate the use of disparate-impact liability in all contexts to the maximum degree possible to avoid violating the Constitution, Federal civil rights laws, and basic American ideals.”

However, left-wing activist groups refused to accept the administration’s characterization, simply arguing that the rules in their current form protected people from discrimination. “The Trump administration cannot claim to value equality by undermining the very laws that keep people protected from discrimination,” complained Amalea Smirniotopoulos, senior policy counsel at the NAACP Legal Defense and Education Fund. “Removing the Department of Justice’s regulations prohibiting unfair discriminatory policies takes away critical safeguards against the most insidious forms of exclusion.”

With the DOJ’s Wednesday regulation, the Justice Department has followed through on the goal stated in Trump’s executive order, rescinding three paragraphs in federal regulation that contain the offending “effect” language, and striking the word “effect” in two other instances. “The Department’s new rule ensures that recipients of federal funding will be judged on their actual conduct, not on statistical outcomes or circumstances beyond their control,” the DOJ stated.

“For over 50 years, the prior disparate-impact rule fostered the very thing the Civil Rights Act of 1964 prohibited — discrimination on the basis of race, color, or national origin,” said Chief of Staff and Supervisory Official for the Office of Legal Policy Nicholas Schilling. “But with today’s rule the Department reaffirms Congress’ commitment to measure all Americans by merit.”