Districts and states under federal investigation from the U.S. Department of Education may see their cases narrowed or dropped as a result of the agency’s announcement last month that it was formally walking back some systemic race-based discrimination investigations, according to former federal civil rights enforcement staff.

The types of cases on the chopping block were investigated by the Biden and Obama administrations under the disparate impact legal theory, which targets policies or practices that are neutral on their face but harm Black or other historically marginalized student groups in practice. 

Disparate impact cases are different from intentional discrimination cases, which the Trump administration will still be pursuing, according to the administration's announcement. The Office for Civil Rights plans to review collected evidence in Title VI cases currently under investigation to determine whether intentional discrimination occurred, the Education Department told K-12 Dive. 

"In my experience, most school administrators don't want to discriminate," said Jackie Gharapour Wernz, an education civil rights attorney who worked for the Education Department’s OCR under the Obama and first Trump administration. The more common issue, Gharapour Wernz said, is how and whether schools equitably allocate their limited resources. 

"And [that's] when you have a problem like disparate impact — that now no one is going to be looking at. No one's going to be holding their feet to the fire," she said. 

The legal theory was often used to reform policies and practices that unintentionally and disproportionately prevented students of color from accessing education., That included issues involving discipline, access to advanced coursework and gifted programs, ability grouping and tracking, and school assignment and attendance boundaries, according to Nancy Potter, an education lawyer who worked for OCR between 2015 and 2019.

These systemic investigations were often triggered by an individual complaint to the department. 

"I would expect open cases to be closed or narrowed to their intentional discrimination issues," said Potter in an email to K-12 Dive. "A district receiving a closure letter should read it closely." 

Districts, Potter said, should note what parts of a federal investigation OCR is closing, as some claims still may be investigated under other legal tools. 

Intentional discrimination cases citing statistical disparities, for example, are still fair game.

And while the federal government has backed away from an investigative tool that impacts broad groups of historically underserved students, some states and courts still use disparate impact even if it's not codified. 

Among them are Washington, Oregon, New Jersey and Connecticut, according to the National Center for Youth Law, which tracks student civil rights protections nationwide.

In Oregon, for example, a state education discrimination statute prohibits acts that are “fair in form but discriminatory in operation," meaning dress codes and other policies are only lawful if they do not have a disparate impact on minority students.

No longer investigating the 'bigger picture'?

Disparate impact cases picked up steam under the second Obama administration, which in 2014 issued a Dear Colleague letter on school discipline and enforcement of Title VI, which prevents discrimination based on race, national origin and ethnicity. 

The administration cited federal civil rights data showing that African American students without disabilities were more than three times as likely as their White peers without disabilities to be expelled or suspended.

"Sometimes, if you pull back and you look at the bigger picture, it is dead obvious that people of one group are being treated differently than people of another group," said Gharapour Wernz. "And that's why we had this ability to say, ‘Just because you don't have a rule that says Black kids must be punished more harshly than White kids, that would [still] be different treatment.’" 

Gharapour Wernz and others said the Obama administration's implementation of the disparate impact rule, and the Biden administration's subsequent continuation of it, was intended to address the reality that individual complaints of intentional discrimination are considered difficult to prove by education civil rights law experts. That’s because they usually require citing a similarly-situated student of another race engaging in similar behavior but receiving a better outcome. 

Previously, in some of those cases, showing that a school staff's implementation of a policy is more disproportionately and unintentionally targeting Black or brown students could still bring about systemic change under disparate impact.

"The explanation that's usually given for discriminatory discipline is, 'Well, the kids of that background are just bad kids. They just get into trouble more,'" said Gharapour Wernz. "And you can't get at that from an individual complaint, because an individual complaint just looks at one kid. It doesn't look at all of the kids."

What kind of cases could be walked back?

Disparate impact investigations and resulting compliance reviews often led to systemic overhauls. In many cases, districts would come to agreements with the Education Department before the agency reached any conclusion in its investigations.

In 2024, for example, the Education Department came to an agreement with Kentucky's Jefferson County Public Schools over its discipline policies after reviewing years' worth of discipline data, the district's contract with law enforcement agencies for school resource officers, and other information.

The resulting agreement with the district required it to review its discipline policies, intermittently report to the federal agency about its progress, conduct climate surveys of its students, and continually collect and self-monitor its discipline data.

In another case settled in 2024 against Legacy Traditional Schools, an Arizona charter school network, the department conducted a compliance review to determine if the schools discriminated against minority students speaking limited English by failing to provide them with language assistance. 

The agreement required identifying and placing English learner students in a timely manner, notifying parents in a language they understand, monitoring and exiting EL students, and continually assessing whether the schools were overcoming language barriers.

In 2014, a compliance review of Minneapolis Public Schools resulted in measures that included a training requirement for SROs, mentoring or counseling for students' behavioral problems, and assessments of staffing levels for guidance counselors and other support staff.

"The remedies themselves did change systems and often extended well beyond an individual complaint," said Potter. "The broader effect was that districts started running their own numbers. Looking at discipline data by race, and asking whether a neutral policy was landing differently on different students, became routine compliance work."

On July 23, however, the Education Department said it would no longer pursue investigations under disparate impact, which was in use prior to the department's creation in 1970s and was adopted as a formal rule in the 1980s after the agency was formed.

"Disparate impact has been used by left of center administrations to force schools to take race as a determinative factor in how students are treated," said Jonathan Butcher, acting director of the Center for Education Policy for the Heritage Foundation. "I would hope that the department would handle these cases on the grounds of how civil rights law should be enforced and what is fair under the law, and without giving different benefits or changing the way that a student is treated just based on the color of their skin." 

If a student or family feels like they are being treated unfairly under a facially neutral policy — like grooming policies that are sometimes disproportionately used against natural Black hairstyles — those students may find different schools if options of choice are available, Butcher said, rather than the government changing how the policy is being implemented.

The Heritage Foundation and other right-leaning organizations scrutinized the Education Department's pursuit of compliance investigations under the disparate impact theory prior to the current Trump administration for its burden on school districts, which are often required to produce comprehensive data and put new systems or measures in place as a result of negotiations with the government.

"While disparate-impact liability has been used for decades, the Obama Administration weaponized it as a tool for the radical left, forcing schools to make race a factor when considering disciplinary actions," the department said in a statement. "Indeed, under Democrat Administrations, OCR found schools guilty of violating Title VI for even-handedly applying race-neutral policies — with no discriminatory intent — solely because data indicated the school disciplined more minority students." 

The department said in its final rule rescinding the disparate impact regulations that they are "in considerable tension with the statute and the Constitution, cause confusion and uncertainty, increase compliance costs for recipients of Federal financial assistance, and do not serve the public interest." 

The Education Department under the first Trump administration also pulled back on disparate impact investigations, quietly dismissing such cases, education law experts said. However, the wholesale rescission of the rule this time around is more permanent.

"In the first Trump term, they minimized the use of disparate impact, but they didn't declare it illegal or unlawful across the board. They didn't roll back the regulations that permit disparate impact," said Johnathan Smith, managing director of education and federal strategic advocacy at the National Center for Youth Law. Smith also served as deputy assistant attorney general for the U.S. Department of Justice's Civil Rights Division between 2021 and 2024.  

"So I think what we see here is a ratcheting up of their actions that will have much longer-term impact," Smith said. 

Potter said that while guidance can be withdrawn or reinstated quickly, restoring a regulatory provision — that the Trump administration in this case undid — generally requires another regulatory action. Regulatory actions can take months, and sometimes even years, to put in place when using the proper administrative procedures.

In the meantime, education law experts and advocates are worried that the undoing of the disparate impact rule will impact student groups even beyond Black and brown students, like claims involving antisemitic discrimination, which is also handled under Title VI.

The educational access of students with disabilities is also at risk, they worry. 

"Discipline disparities and special education referral patterns tend to show up in the same data, and students of color with disabilities sit at that intersection," said Potter. "Losing the Title VI tool leaves the disability tools in place while removing one of two ways to reach the same set of facts.”