OCR has announced the removal of “disparate impact” regulations for Title VI enforcement. Title VI prohibits racial discrimination in educational programs that receive federal funding. Disparate impact analysis previously allowed discrimination to be established if a policy or practice created discriminatory effects, even if it was not intended to do so. Under the disparate impact provisions, a federal civil rights claim could be established by using demographic data to show that significant racial disparities occurred as a result of a policy or practice. Going forward, Title VI claims will require proof of intentional discrimination. The change is significant since there is, generally, no “private right of action” under the Title VI regulation at issue allowing Plaintiffs to sue in federal court.
Accordingly, the Department of Education has rescinded the Title VI disparate impact provisions in Title 34, Part 100 of the Code of Federal Regulations. This deregulation mirrors the U.S. Department of Justice’s elimination of disparate impact liability last year.
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