The Trump Administration Comes for Title VI of the 1964 Civil Rights Act

The 1964 Civil Rights Act marked a turning point in United States history, the moment when Americans committed themselves to ending racial discrimination in federally assisted programs, private enterprises open to the public, and employment. It has proven challenging to move decisively away from centuries of discrimination, and not surprisingly, efforts have often fallen short. Nonetheless, the nation has experienced steady progress, propelled forward within a broad civil rights framework.   

Title VI of the Act bars discrimination in federally assisted programs. On December 10, 2025, the Justice Department announced, without opportunity for advance public notice and comment, that it was eliminating the “disparate impact” test from its Title VI enforcement rules, one of the two legal pillars on which the Title VI rests. The announcement was not surprising, having been presaged by an April 2025 Presidential Order whose stated goal of “Restoring Equality of Opportunity and Meritocracy” heavily focused on ending disparate impact.  

But the final rule was shocking nonetheless, not only in its finality but also because it rests on a gross misrepresentation of the law. Its full impact will take years to unfold, but its effects on health policy and practice could be profound.

Like other civil rights laws, the Title VI statute succinctly states its basic rule:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

Core to implementation was the threshold decision of what types of practices by federally assisted entities might constitute “discrimination.” To answer this question, the Johnson Administration rapidly issued regulations defining discrimination under federally assisted programs, including programs overseen by the Department of Health, Education, and Welfare. These early rules, adopted in the immediate aftermath of passage and thus a contemporaneous interpretation of Congressional intent, were clear: Policymakers understood that Title VI focused on two types of discrimination: intentional actions or policies aimed at discriminating based on race, color, or national origin (known as disparate treatment), and actions that appeared facially neutral but produced discriminatory effects (known as disparate impact). These program-specific rules were followed in 1966 by Justice Department enforcement rules.

Also, from the outset, the early rules did not simply bar disparate impact policies and practices. They required federally assisted programs and entities to take steps to affirmatively address and mitigate policies and practices that had a discriminatory impact.

The Title VI meaning of discrimination extends beyond the Fifth and Fourteenth amendments to the US Constitution, which bar intentional discrimination only. Congress’s decision to go beyond the protections afforded by the Constitution made eminent sense, particularly in the case of Title VI, whose enactment occurred one year before the remarkable 1965 flowering of Great Society social welfare programs. Lawmakers knew that the power of these programs ultimately would depend on their effectiveness in serving people of all races and nationalities. Indeed, programmatic success would rest on intricate federal/state design and operational choices that, even if racially neutral, might carry serious, adverse consequences in practice. Thus, to ensure inclusiveness, federally-assisted entities would be bound not only by the Constitution’s intentional discrimination standard but also by Title VI’s disparate impact test.

Subsequent civil rights laws barring discrimination based on age, disability, and sex similarly would adopt a disparate impact model, since, like Title VI, they aim to promote inclusiveness in federally assisted programs. These later laws include Section 1557 of the Affordable Care Act, the landmark law barring discrimination in health care programs and, as such, makes disparate impact a core feature of its design.

To be sure, disparate impact policy has proven controversial. In 2001, in Alexander v Sandoval, even as it left the Title VI disparate impact design in place, the Supreme Court restricted its enforcement to the federal government. More recently, in Students for Fair Admission v Harvard the Court placed significant constraints on the types of tools available to educational institutions to promote inclusiveness.

But the Title VI disparate impact test has played a crucial role in social welfare policy design, including public health and health care. The modern health system has taken important steps, in both design and operation, to eliminate discriminatory barriers and promote inclusivity regardless of race, national origin, or color. Title VI compliance undergirds critical health system choices, such as strategic location of services within underserved communities, use of translators and interpreters, and the deep involvement of health professionals whose lives and training enable a racially and culturally inclusive approach to health and health care. Critical to modern health practice has been investment in providers whose mission is quality care for underserved populations, such as community health centers, public family planning programs, public hospitals and health systems, hospitals and health systems treating a disproportionate share of low-income patients, community mental health centers, and programs operated by public health agencies.

The impact of a Title VI disparate impact test does not end at health care; it reaches health care financing as well. Today, public health insurers, including state Medicaid and CHIP programs, managed care plans, and qualified health plans operating on Affordable Care Act exchanges incorporate policies and practices aimed at promoting accessibility. Indeed, Title VI has even influenced coverage design itself; Medicaid, CHIP, and qualified health plans cover and pay for language services, patient support services, and care furnished by health professionals, such as doulas, case managers, and outreach workers, with particular skills at reaching populations at risk of exclusion. 

Viewed in this light, the December announcement, even if expected, is breathtaking. The Department begins with an outright misrepresentation that, in turn, drives its decision to end disparate impact: “Title VI . . . prohibits specifically intentional discrimination and makes no reference to unintentional disparate effects or impact.” The statute does no such thing; as noted above, it simply prohibits “discrimination.” But centering its shift on a lie, and ignoring sixty years of law, policy, and what has become a custom of inclusivity, the Department of Justice (DOJ) proceeds to sweep the disparate impact test off the table. Beyond claiming the lack of a legal basis for a disparate impact policy, the Department asserts that the rule causes “racial balancing” confusion among federal grantees and “undermine[s] public confidence in the rule of law itself.” Indeed, DOJ calls into question the validity of governmental racial classificaations themselves, a theme echoed in the Harvard case and one that calls into question the very future of government data collection efforts. 

Where does this leave the nation? The Administration is intent on eliminating any legal expectation that program design and administration will not unintentionally harm the very people that federal investments are designed to serve. But beyond legal expectations lie health system custom and practice. Over six decades, the nation has come to expect that a health system that operates in a pluralistic, highly diverse society must be there for everyone regardless of race, color, or national origin. One can only hope that this expectation will carry the day, even in the absence of a legal obligation to do so.

Editorial note: This Opinion uses the word “color” as it appears in statute to describe race or ethnicity.

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