The July 2026 U.S. Department of Education (USED) Newsletter included a short paragraph in the “Wins of the Month” section that touted the removal of the Title VI of the Civil Rights Act’s regulations related to disparate impact discrimination. On July 23rd, USED officially rescinded sections of regulations for Title VI of the Civil Rights Act that specifically related to disparate impact discrimination.
What is Disparate Impact Discrimination?
It’s best to understand disparate impact discrimination in comparison to disparate treatment discrimination. Disparate treatment discrimination is also called intentional discrimination and involves intentional harm. Disparate impact discrimination is different because it doesn’t appear to be intentional. Instead, it occurs when what appears to be a neutral policy or action causes disproportionate and unjustified negative harm to a group. For ELs, disparate impact occurs when a district provides the same exact educational services (same books, teachers, facilities, etc.) to ELs as it does to non-ELs, but doesn’t provide services to help ELs overcome language barriers and access those educational services.
Disparate Impact for ELs – Roots
In the case Lau v. Nichols, the Supreme Court ruled that a school system’s failure to provide supplemental English language instruction to students of Chinese ancestry who spoke no English constituted a violation of the Civil Rights Act of 1964 because it deprived those students of an opportunity to participate in the public education program. Basically, the students of Chinese ancestry who spoke no English were receiving the same educational services as English-speaking students, which appeared “equal.” However, because these students weren’t being provided services to overcome language barriers, they were unable to access their school’s educational services.
Removal of Disparate Impact Regulations
Regulations are written to help clarify how to implement or comply with laws. Regulations have the “force of law,” which basically means that violating regulations is equivalent to breaking the law and can result in legal action. What’s included in regulations is enforceable. Guidance is different because it is provided to help people understand how to implement laws and avoid compliance issues. If you look at guidance documents from USED, you’ll see that the title of these documents usually includes the words “Non-Regulatory Guidance” and, therefore, the guidance is not technically enforceable. The laws the guidance documents are attempting to clarify are enforceable, so it can get tricky.
People ask, “Since disparate impact discrimination related to ELs has its roots in violations of Title VI of the Civil Rights Act, does the removal of these regulations mean that disparate impact discrimination related to ELs is no longer enforceable?” The short answer is no. If disparate impact discrimination related to ELs were only found in the regulations related to Title VI of the Civil Rights Act, we would be concerned. However, since Supreme Court case rulings set precedents that must be followed in subsequent cases and have what is referred to as binding authority, disparate impact discrimination related to ELs is still enforceable. Thus, via the Lau case, the requirement that districts must provide services to ELs to help them overcome language barriers remains. That has not changed.
Disparate Impact for ELs and the Equal Educational Opportunities Act
Shortly after the Supreme Court decision in the Lau case, the U.S. Congress passed the Equal Educational Opportunities Act (EEOA), which codified into law what the Lau case established. The EEOA, section 1703, prohibits the denial of an equal educational opportunity. It identifies six different scenarios of denial of an equal educational opportunity. The last one relates to ELs.
In the EEOA, 20 USC 1703(f) – it says, “No State shall deny equal educational opportunity to an individual on account of his or her race, color, sex, or national origin, by – . . . the failure by an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.” Districts must provide ELs educational services that help them overcome language barriers. Not doing so is the very definition of Disparate Impact Discrimination!
Mark Twain once said, “The reports of my death are greatly exaggerated” when a newspaper falsely claimed he was dying. Well, when it comes to disparate impact discrimination related to ELs, if someone tells you that it doesn’t apply anymore, let them know that the reports of the elimination of disparate impact discrimination related to ELs are greatly exaggerated!
