The rule is final and effective immediately upon its publication in the Federal Register, which is scheduled for tomorrow.

The U.S. Department of Commerce has amended its regulations implementing Title VI of the Civil Rights Act of 1964, eliminating provisions concerning disparate impact liability and affirmative action. It purports to do so in order to “align the Department’s regulations with Title VI’s original public meaning, avoid constitutional concerns, reduce compliance costs, and serve the public interest,” as well as to “implement changes directed in Executive Order 14281.” The final rule cross-references and incorporates the reasoning of the Department of Justice in its final rule published in December.

“Serious” concerns. According to the Commerce Department’s notice, “There are serious statutory and constitutional concerns with the legality of the Department’s Title VI disparate-impact regulations. The Department also has serious policy concerns with its current disparate-impact regulations, including that the disparate-impact standard creates confusion, undermines public confidence in the nation’s civil rights laws and the rule of law, and produces burdensome litigation and compliance costs.”

The Department’s regulation at 15 CFR 8.4, entitled “Discrimination prohibited,” outlines the core prohibitions against discrimination. Prior to this regulation, Commerce notes, it included provisions prohibiting facially neutral policies that have a disparate impact.

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