[Federal Register Volume 91, Number 127 (Monday, July 6, 2026)]
[Rules and Regulations]
[Pages 40872-40879]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-13624]
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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
14 CFR Part 1250
[NASA Document Number: NASA-26-029]
RIN 2700-AE89
Nondiscrimination in Federally Assisted Programs of NASA--
Effectuation of Title VI of the Civil Rights Act of 1964
AGENCY: National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: NASA is amending its regulation implementing Title VI of the
Civil Rights Act of 1964 (Title VI) for federally assisted programs to
conform more closely to the statutory text and recent revisions by the
Department of Justice (DOJ). This action removes provisions
establishing disparate-impact liability. The rule also clarifies that
Title VI reaches employment practices under this part only where
employment is a primary objective of the Federal financial assistance
or where intentional discrimination is shown. These changes align
NASA's regulation with Title VI and promote consistency across Federal
agencies.
DATES: Effective date: July 6, 2026.
FOR FURTHER INFORMATION CONTACT: Rob Grant, Equal Opportunity Program
Division, NASA Headquarters, (321) 867-9169.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
NASA is rescinding portions of its regulations promulgated pursuant
to Title VI, 42 U.S.C. 2000d-1, to more closely align them to the
statute, which prohibits intentionally discriminatory conduct, see 42
U.S.C. 2000d. There are serious statutory and constitutional concerns
with NASA's current Title VI regulations because the current
regulations go beyond intentional discrimination by prohibiting conduct
that has an unintentional disparate impact. This rule accordingly
rescinds those portions of the regulations, which are in considerable
tension with both the statute and the Constitution and do not
sufficiently serve the public interest.
The rule's revisions also conform to Executive Order 14281,
Restoring Equality of Opportunity and Meritocracy, 90 FR 17537 (Apr.
23, 2025). That Order states that ``[i]t is the policy of the United
States to eliminate the use of disparate-impact liability in all
contexts to the maximum degree possible to avoid violating the
Constitution, Federal civil rights laws, and basic American ideals.''
Id. at 17537. Although NASA would take this action independent of
Executive Order 14281, the Order supports this action.
This rule makes clear to NASA's Federal-funding recipients that its
Title VI regulations prohibit only intentional discrimination, and NASA
thus will not pursue disparate-impact liability against its Federal-
funding recipients.
II. Discussion
A. Statutory History of Title VI
Title VI, as amended, provides: ``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.'' 42 U.S.C. 2000d. Title VI also directs Federal
departments and agencies that extend Federal financial assistance to
``effectuate the provisions of'' Title VI ``by issuing rules,
regulations, or orders of general applicability.'' 42 U.S.C. 2000d-1.
The section of Title VI that sets forth the prohibited conduct, 42
U.S.C. 2000d, prohibits only intentional discrimination and makes no
reference to unintentional disparate effects or impact. See Alexander
v. Sandoval, 532 U.S. 275, 280 (2001) (``[I]t is . . . beyond dispute--
and no party disagrees--that [Title VI] prohibits only intentional
discrimination.''). The statute does not provide any Federal department
or agency with authority to prohibit conduct having an unintentional
disparate impact. And despite having ample opportunities, Congress has
enacted no subsequent amendments to Title VI to impose disparate-impact
liability.
B. Relevant Supreme Court Decisions
The Supreme Court has held that Title VI, 42 U.S.C. 2000d, does not
prohibit facially neutral policies that result in disparate outcomes
when there is no discriminatory intent. Rather, it prohibits only
intentional discrimination. In 1978, the Supreme Court held that
Congress intended Title VI to prohibit ``only those racial
classifications that would violate the Equal Protection Clause'' if
committed by a government actor. Regents of the Univ. of Cal. v. Bakke,
438 U.S. 265, 287 (1978) (Powell, J., announcing the judgment of the
Court); id. at 325, 328, 352-53 (Brennan, White, Marshall, and
Blackmun, JJ., concurring in part and dissenting in part); see also
Students for Fair Admissions, Inc. v. President & Fellows of Harvard
Coll., 600 U.S. 181, 198 n.2 (2023) (``SFFA''). Shortly before Bakke,
the Supreme Court held that the Equal Protection Clause prohibits only
intentional discrimination and that ``a law or other official act''
that has a ``racially disproportionate impact'' alone does not violate
that clause. Washington v. Davis, 426 U.S. 229, 239 (1976); see also
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252,
265 (1977) (``Proof of racially discriminatory intent or purpose is
required to show a violation of the Equal Protection Clause.''). Taken
together, these Supreme Court cases establish that Title VI's statutory
prohibition, like the Equal Protection Clause, extends only to
intentional discrimination.
In 2001, the Supreme Court, in Alexander v. Sandoval, reaffirmed
that settled understanding. 532 U.S. at 280 (``[I]t is . . . beyond
dispute . . . that [Title VI] prohibits only intentional
discrimination.''). In Sandoval, the Supreme Court held that private
plaintiffs lacked a private right of action
[[Page 40873]]
to enforce DOJ's then-existing ``disparate-impact regulations.'' Id. at
285-87. Although the Supreme Court had previously found a private cause
of action to enforce Title VI's bar on intentional discrimination, id.
at 279-80, that conclusion did not extend to enforcing DOJ's
``disparate-impact regulations.'' Id. at 285. As the Supreme Court
explained, it is ``clear'' that ``the disparate-impact regulations do
not simply apply'' the statutory prohibition, as the regulations
``forbid conduct that [Title VI] permits,'' so it is equally ``clear
that the private right of action to enforce [Title VI] does not include
a private right to enforce these regulations.'' Id. And although the
Supreme Court in Sandoval ``assume[d],'' without deciding, that DOJ's
disparate-impact regulations were valid, the Court explained that the
then-current version of the regulations were in ``considerable
tension'' with the Supreme Court's Title VI precedents. Similarly, the
regulations did not ``authoritatively'' construe Title VI because the
regulations ``forbid conduct''--namely, policies that unintentionally
result in a disparate impact--that Title VI ``permits.'' Id. at 281-82,
284-85; see also id. at 286 n.6 (``[Title VI] permits the very behavior
that the regulations forbid.'').
Finally, in 2024, the Supreme Court overruled Chevron U.S.A. Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See
Loper Bright Enters. v. Raimondo, 603 U.S. 369, 409-12 (2024). In doing
so, the Supreme Court made clear that ``statutes . . . have a single,
best meaning'' that is `` `fixed at the time of enactment.' '' Id. at
400 (quoting Wis. Cent. Ltd. v. United States, 585 U.S. 274, 284
(2018)). Thus, Title VI's bar on discrimination can have only one
meaning. And under Supreme Court precedent, the single, best meaning of
Title VI is that it ``prohibits only intentional discrimination'' and
``permits'' facially neutral policies that result in disparate outcomes
so long as there is no discriminatory intent. Sandoval, 532 U.S. at
280, 286 n.6.
C. Executive Order 14281
On April 23, 2025, the President issued Executive Order 14281. This
Order restates the ``bedrock principle of the United States . . . that
all citizens are treated equally under the law.'' 90 FR at 17537. The
Order explains that this ``principle guarantees equality of
opportunity, not equal outcomes,'' and ``promises that people are
treated as individuals, not components of a particular race or group.''
Id.
That Order also explains that disparate-impact liability
``endangers this foundational principle.'' Id. Disparate-impact
liability, the Order reasons, ``all but requires individuals and
businesses to consider race and engage in racial balancing to avoid
potentially crippling legal liability.'' Id. As the Order explains,
disparate-impact liability ``not only undermines our national values,
but also runs contrary to equal protection under the law and,
therefore, violates our Constitution.'' Id.
The Order relays that because of disparate-impact liability's
problems, ``[i]t is the policy of the United States to eliminate the
use of disparate-impact liability in all contexts to the maximum degree
possible to avoid violating the Constitution, Federal civil rights
laws, and basic American ideals.'' Id. Accordingly, this rule revises
NASA's currently existing Title VI regulations, consistent with the
Order's policy and purpose.
In any event, NASA would have independently initiated steps toward
making these changes regardless of Executive Order 14281. Even if
Executive Order 14281 did not exist, in other words, NASA would have
taken steps to adopt the policy to eliminate the use of disparate-
impact liability under Title VI. The Order states, and NASA firmly
agrees, that a ``bedrock principle of the United States is that all
citizens are treated equally under the law. This principle guarantees
equality of opportunity, not equal outcomes. It promises that people
are treated as individuals, not components of a particular race or
group. It encourages meritocracy and a colorblind society,'' not race-,
color-, or national-origin-based favoritism. 90 FR at 17537. And
adherence to this principle, including in the issuance of grants, ``is
essential to creating opportunity, encouraging achievement, and
sustaining the American Dream.'' Id.
Imposing disparate-impact liability endangers these policy
objectives. Disparate-impact liability also raises serious
constitutional concerns, is in considerable tension with Title VI,
creates confusion, increases the costs of compliance, and does not
serve the public interest. After considering the relevant issues and
factors and weighing the relevant considerations, NASA concludes that
these reasons support eliminating disparate-impact liability from
NASA's Title VI regulations. In any event, NASA concludes that each
reason is an independent basis for eliminating disparate-impact
liability from NASA's Title VI regulations.
D. Need for Rulemaking
14 CFR 1250.103, entitled ``Discrimination prohibited,'' includes
several provisions that go beyond Title VI and the Constitution by
prohibiting conduct or activities causing unintentional disparate
impact. And in some instances, these provisions may encourage or even
require unlawful discrimination in the form of affirmative action. 14
CFR 1250.103-2(b) is the current regulation's general disparate-impact
prohibition, which states that a ``recipient . . . may not . . .
utilize criteria or methods of administration which have the effect of
subjecting individuals to discrimination because of their race, color,
or national origin.'' Beyond that general prohibition, 14 CFR 1250.103-
2(a)(3) addresses a Federal-funding recipient's selection of the site
or location of facilities and includes two references to ``effect''
that extends to conduct with an unintentional disparate impact. 14 CFR
1250.103-2(e) addresses the use of affirmative action and provides that
funding recipients may (and sometimes must) use race, color, or
national origin to overcome unintentional disparate ``consequences.''
But this provision does not expressly specify that the funding
recipient must narrowly tailor such use nor that this use must serve a
compelling governmental interest, as is required to satisfy strict
scrutiny. 14 CFR 1250.103-3(d) addresses prohibited discriminatory
employment practices and extends beyond intentional discrimination to
prohibiting conduct that ``tends'' to have a discriminatory effect.
Finally, 14 CFR 1250.103-4(f)-(g) provide two illustrative applications
of disparate-impact liability.
There are serious statutory and constitutional concerns with NASA's
Title VI disparate-impact regulations. NASA also has serious policy
concerns with its current disparate-impact regulations because they
create confusion, undermine public confidence in the nation's civil
rights laws and the rule of law, and produce burdensome litigation and
compliance costs.
1. Serious Legal Concerns
There are serious statutory concerns as to whether Title VI
authorizes the disparate-impact provisions of the current regulations.
As the Supreme Court has made clear, Title VI prohibits ``only
intentional discrimination'' and ``permits'' facially neutral policies
that result in disparate outcomes when there is no discriminatory
intent. Sandoval, 532 U.S. at 280, 286 n.6. That is the ``single, best
meaning'' of Title VI. Loper
[[Page 40874]]
Bright, 603 U.S. at 400. Sandoval calls into serious doubt the legality
of NASA's ``disparate-impact regulations.'' Sandoval, 532 U.S. at 281-
82, 284-85 (noting that DOJ's then-existing regulations were in
``considerable tension'' with the Supreme Court's Title VI precedents);
see also id. at 286 n.6 (``[Title VI] permits the very behavior that
the regulations forbid.'').
Although Sandoval applied to DOJ's Title VI regulations and
resolved only the question of private enforceability, subsequent cases
such as Loper Bright have made clear that NASA cannot extend Title VI
beyond its best meaning. See 603 U.S. at 412-13 (holding that ``courts
must . . . ensur[e] that [an] agency acts within'' its statutory
authority). And even in the absence of Supreme Court precedent, NASA
would have concluded that the best reading of Title VI is that it
prohibits only intentional discrimination.
Title VI authorizes agencies to promulgate regulations ``to
effectuate'' the statute's prohibition of intentional discrimination.
42 U.S.C. 2000d-1. The current prohibition of conduct having an
unintentional disparate impact reaches a vastly broader scope than the
statute itself. This scope is too broad to be considered a simple
prophylactic measure aimed at preventing intentional discrimination.
See Sandoval, 532 U.S. at 286 n.6 (``[Title VI] permits the very
behavior that the regulations forbid.''). Thus, the disparate-impact
regulations do not ``effectuate'' Title VI. 42 U.S.C. 2000d-1.
There are also serious concerns about whether NASA's Title VI
regulations pass constitutional muster under the Equal Protection
Clause. As the Supreme Court recently held in SFFA, ``the Equal
Protection Clause . . . applies without regard to any differences of
race, of color, or of nationality--it is universal in its application''
and the ``guarantee of equal protection cannot mean one thing when
applied to one individual and something else when applied to a person
of another color.'' 600 U.S. at 206 (internal quotation marks omitted)
(first quoting Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886); and then
quoting Bakke, 438 U.S. at 289-90 (Powell, J.)). Despite the promises
of the Equal Protection Clause, a funding recipient's risk of
disparate-impact liability under NASA's regulations is triggered by
unintentional disparate outcomes, which the recipient may not even know
about without investigation. To evaluate and avoid this risk, the
funding recipient must incur investigatory costs, such as conducting an
impact analysis, and is coerced to proactively consider race, color,
and national origin, and potentially use it to change unintended
disparate outcomes.
In short, disparate-impact liability encourages and, in some cases,
requires covered entities to engage in the intentional use of race and
racial balancing to eliminate those disparate outcomes by treating
certain racial groups differently from others--the exact conduct the
Equal Protection Clause forbids. See id. The serious constitutional
concerns raised by these perverse incentives further confirm that the
best reading of Title VI is that it prohibits only intentional
discrimination and does not authorize NASA to impose disparate-impact
liability. See Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. &
Constr. Trades Council, 485 U.S. 568, 575 (1988) (``[W]here an
otherwise acceptable construction of a statute would raise serious
constitutional problems, the Court will construe the statute to avoid
such problems unless such construction is plainly contrary to the
intent of Congress.'' (citing NLRB v. Catholic Bishop of Chi., 440 U.S.
490, 499-501, 504 (1979))).
This encouraged or coerced use of race, color, or national origin
violates the Equal Protection Clause unless it survives review under
the ``daunting'' strict-scrutiny standard. SFFA, 600 U.S. at 206; see
also Free Speech Coal., Inc. v. Paxton, 145 S. Ct. 2291, 2310 (2025)
(``Strict scrutiny--which requires a restriction to be the least
restrictive means of achieving a compelling governmental interest--is
`the most demanding test known to constitutional law.''' (quoting City
of Boerne v. Flores, 521 U.S. 507, 534 (1997))). The use of race,
color, or national origin necessitated by the disparate-impact
provisions runs into serious issues with the requirement of narrow
tailoring to achieve a compelling interest. SFFA, 600 U.S. at 206-07.
Similarly, the affirmative action provision authorizes and
sometimes requires the intentional use of race without requiring that
this intentional use be narrowly tailored to serve a recognized
compelling interest. Instead, it encourages intentional racial
balancing to ``overcome the consequences of'' unintended racial
disparities. 14 CFR 1250.103-2(e). Thus, for substantially the same
reasons as above, the affirmative action provision raises serious
constitutional concerns.
Finally, 14 CFR 1250.103-4(f)-(g) provide illustrative applications
of disparate-impact liability. Because NASA is removing from its
regulations the provisions establishing disparate-impact liability, the
examples of disparate impact are no longer relevant.
As summarized above, there are serious statutory and constitutional
concerns with NASA's disparate-impact regulations. But even if the
regulations were legal, NASA finds that eliminating the potential
constitutional concerns addressed above would independently justify the
amendment of the regulations. Cf. U.S. Tel. Ass'n v. FCC, 188 F.3d 521,
528 (D.C. Cir. 1999) (concluding it was not ``arbitrary and
capricious'' to adopt a certain policy in order to ``avoid[ ] raising a
non-trivial constitutional question''). And even if the regulations did
not raise serious constitutional concerns, NASA finds that eliminating
the costs and confusion caused by the mismatch between the statute and
the disparate-impact regulations would independently justify the repeal
of the regulations.
2. Serious Policy Concerns
NASA also has serious policy concerns with the imposition of
disparate-impact liability. Although NASA expresses its policy concerns
with disparate-impact liability independent of Executive Order 14281,
that Order sets forth many valid policy concerns with disparate-impact
liability. As noted in section 1 of the Order,
On a practical level, disparate-impact liability has hindered
businesses from making hiring and other employment decisions based
on merit and skill, their needs, or the needs of their customers
because of the specter that such a process might lead to disparate
outcomes, and thus disparate-impact lawsuits. This has made it
difficult, and in some cases impossible, for employers to use bona
fide job-oriented evaluations when recruiting, which prevents job
seekers from being paired with jobs to which their skills are most
suited--in other words, it deprives them of opportunities for
success.
90 FR at 17537. Moreover, the legal concerns identified above have
caused uncertainty and confusion for Federal-funding recipients as to
whether and when they need to comply with the disparate-impact
regulations and when they can or must consider race, color, and
national origin. As explained above, Sandoval casts substantial doubt
on the validity of the disparate-impact regulations that many Federal
departments and agencies have promulgated pursuant to Title VI. 532
U.S. at 280-82.
Additionally in practice, and as explained above, disparate-impact
liability can lead covered entities to engage in racial balancing even
as Title VI forbids intentional racial discrimination. This tension
tends to
[[Page 40875]]
create confusion and undermine public confidence in the nation's civil
rights laws and in the rule of law itself, as the law seems to both
forbid and require the same conduct.
These problems are amplified by the arbitrary nature of the racial
and ethnic categories typically used to measure disparate effects,
which, by virtue of their arbitrariness, typically lack a meaningful
connection to a compelling interest. See, e.g., SFFA, 600 U.S. at 216-
17 (explaining that the ``[racial] categories'' utilized in the racial
preference programs at issue were ``themselves imprecise in many ways''
and ``the use of these opaque racial categories undermine[d], instead
of promote[d], [their] goals''). This confusion undermines the law's
ability to teach principles of nondiscrimination. See e.g., 14 CFR
1250.103-4(f)-(g) (providing illustrations of affirmative action in
referrals and recruitment). NASA believes that these policy concerns
independently justify repealing certain parts of its regulation to cure
this confusion, remove the incentive for covered entities to engage in
racial balancing, and maintain clarity and public confidence in the
nation's civil rights laws.
NASA has considered the view that looking at disparate effects can
sometimes be useful in uncovering or deterring subtle intentional
discrimination or intentional indifference to unnecessary and arbitrary
barriers. But that view's alleged benefits are outweighed by the other
issues and factors NASA has considered. And in any event, eliminating
disparate-impact liability does not preclude the use of data on
disparate outcomes to help prove intentional discrimination. This use
of statistical disparity to help establish, as an evidentiary matter,
liability for intentional discrimination materially differs from using
it to impose liability for conduct having an unintentional disparate
impact.
NASA has also considered the alternative of trying to adopt a
modified version of disparate-impact liability, for example, by
requiring covered entities to remedy so-called unintentional
discrimination through a notice-and-remedy model. Such an approach
might require a recipient to develop and implement a race-neutral
corrective action plan when a compliance review reveals substantial
disparities in access or benefits or require targeted, race-neutral
barrier-removal measures if a periodic audit reveals statistically
significant disparities of key program outcomes. But any version of
imposing liability for so-called unintentional discrimination is
inconsistent with Title VI's original public meaning. Regardless, even
a modified version of disparate-impact liability would not eliminate
NASA's serious legal and policy concerns. NASA determines that any
benefits from adopting alternative versions of disparate-impact
liability are outweighed by NASA's legal and policy concerns. And even
if possible, developing such a rule would not solve the confusion or
rule-of-law concerns expressed above, nor reduce the compliance and
litigation costs that covered entities face. NASA believes that the
better course is to avoid the complexities, costs, and litigation
associated with this alternative, even if eliminating disparate-impact
liability would ultimately leave some problems unaddressed and others
inadequately addressed.
NASA has additionally considered the potential reliance interests
of funding recipients and others on the disparate-impact regulations.
Sandoval, however, cast serious doubt on the continuing viability of
the regulations more than 20 years ago. At least since Sandoval, NASA's
enforcement of its Title VI disparate-impact regulations has been
minimal. And Executive Order 14281 also directed all agencies to
``deprioritize enforcement of all statutes and regulations to the
extent they include disparate-impact liability,'' including
specifically NASA's Title VI disparate-impact regulations. 90 FR at
17538. NASA accordingly believes that any reliance interests should be
minimal and do not outweigh NASA's legal and other policy concerns.
Further, each of NASA's concerns, whether considered cumulatively or
separately, outweighs any reliance interests.
NASA notes that Sandoval has also led to a divergence between Title
VI enforcement by private plaintiffs and enforcement by Federal
departments and agencies. After Sandoval, private plaintiffs can
enforce only Title VI's statutory prohibition on intentional
discrimination, while NASA could continue to pursue disparate-impact
liability. Repealing the disparate-impact regulations would eliminate
this incongruent enforcement.
Overall, after considering the relevant issues and factors and
weighing the relevant considerations, NASA finds that, regardless of
the legality of NASA's disparate-impact regulations, the above
summarized policy concerns, when viewed separately or cumulatively,
independently justify the repeal of its disparate-impact regulations.
III. Regulatory Amendments
A. Comparison of Amendments
The left column lists the DOJ's Title VI final rule conforming
amendments, and the right column shows the NASA regulatory text to
remove.
------------------------------------------------------------------------
Section (DOJ 28 CFR 42.104) Remove (NASA 14 CFR part 1250)
------------------------------------------------------------------------
(b)(2)--Disparate impact 1250.103-2(b)--Delete full text of
``criteria or methods of paragraph: ``A recipient, in
administration''. determining the types of services,
financial aid, or other benefits,
or facilities which will be
provided under any such program, or
the class of individuals to whom,
or the situations in which, such
services, financial aid, other
benefits, or facilities will be
provided under any such program, or
the class of individuals to be
afforded an opportunity to
participate in any such program,
may not, directly or through
contractual or other arrangements,
utilize criteria or methods of
administration which have the
effect of subjecting individuals to
discrimination because of their
race, color, or national origin, or
have the effect of defeating or
substantially impairing
accomplishment of the objectives of
the program as respects individuals
of a particular race, color, or
national origin.''
(b)(3)--Facility site selection 1250.103-2(a)(3)--Delete the phrase
(``purpose vs. effect''). ``or effect'' in both places within
the section. Current text includes:
``. . . may not make selections
with the purpose or effect of
excluding individuals from, denying
them the benefits of, or subjecting
them to discrimination under any
program to which this regulation
applies, on the grounds of race,
color, or national origin; or with
the purpose or effect of defeating
or substantially impairing the
accomplishment of the objectives of
the Act or this regulation.''
(b)(6)--``Affirmative action''/ 1250.103-2(e)--Delete full text of
mandatory remedial steps. paragraphs mandating affirmative
steps to overcome past
discrimination or requiring service
to underrepresented groups.
[[Page 40876]]
(c)(2)--Employment practices 1250.103-3(d)--Delete full text of
(disparate impact reach). paragraph that extends Title VI to
disparate impact in programs the
primary purpose of which is not
employment: ``Where a primary
objective of the Federal financial
assistance is not to provide
employment, but discrimination on
the grounds of race, color, or
national origin in the employment
practices of the recipient or other
persons subject to the regulation
tends, on the grounds of race,
color, or national origin, to
exclude individuals from
participation in, to deny them
benefits of, or to subject them to
discrimination under any program to
which this regulation applies, the
provisions of paragraph (a) of this
section shall apply to the
employment practices of the
recipient or other persons subject
to the regulation, to the extent
necessary to assure equality of
opportunity to, and
nondiscriminatory treatment of,
beneficiaries.''
------------------------------------------------------------------------
Additionally, NASA is making further changes. First, NASA is
replacing the defined term ``Applicable'' with ``Applicant'' within
section 1250.102(b). Additionally, NASA is deleting 14 CFR 1250.103-
4(f)-(g) in their entirety. Finally, NASA is removing 14 CFR 1250.112.
B. Section-By-Section Analysis
14 CFR 1250.102(b)
14 CFR 1250.102(b) contains a typo regarding the term
``Applicant,'' which this rule corrects.
14 CFR 1250.103-2(b)
14 CFR1250.103-2(b) is the general prohibition of conduct having an
unintentional disparate impact. It imposes liability on Federal-funding
recipients who ``utilize criteria or methods of administration which
have the effect of subjecting individuals to discrimination.'' Because
14 CFR 1250.103-2(b)'s purpose is to prohibit unintentional disparate-
impact discrimination, this rule deletes this subsection in its
entirety. It thus amends the regulations to conform to Title VI and to
address the considerations and determinations described in this
document. The rule replaces subsection (b) with a placeholder to
maintain the numbering accuracy of previous citations and other
references to parts of this section.
14 CFR 1250.103-2(a)(3)
14 CFR 1250.103-2(a)(3) addresses a Federal-funding recipient's or
applicant's selection of the site or location of facilities. It
provides that a funding recipient may not make selections with the
``purpose or effect'' of discriminating, or ``with the purpose or
effect of defeating or substantially impairing the accomplishment of
the objectives of'' Title VI or NASA's implementing regulations. The
paragraph's two references to ``effect'' extend its scope to
unintentional disparate impacts. This rule deletes both ``or effect''
references to conform paragraph (a)(3) more closely to Title VI and to
address the legal and policy considerations and determinations
described in this document.
14 CFR 1250.103-2(e)
14 CFR 1250.103-2(e) deals with affirmative action. The second
sentence--beginning with ``This regulation does not prohibit the
consideration of race, color, or national origin''--authorizes
affirmative action even in the absence of a finding of prior
discrimination in a program ``to remove or over the consequences of
practices or impediments of practices or impediments which have
restricted the availability of, or participation in, the program or
activity receiving Federal financial assistance, on the grounds of
race, color, or national origin.'' This provision points not to
intentional discrimination, but rather to the unintentional
``consequences of practices or impediments.'' It consequently
encourages intentional racial classifications, racial preferences, and
other race-based actions without specifying the compelling governmental
interest and narrow tailoring that the Equal Protection Clause demands.
This section has long been unlawful under the Equal Protection Clause.
The third sentence of 14 CFR 1250.103-2(e) provides that ``[w]here
previous discriminatory practices or usage tends, on the grounds of
race, color, or national origin, to exclude individuals from
participation in, to deny them the benefits of, or to subject them to
discrimination under any program or activity to which this regulation
applies the applicant or recipient has an obligation to take reasonable
action to remove or overcome the consequences of the prior
discriminatory practice or usage, and to accomplish the purpose of the
Act.'' This provision goes beyond the Equal Protection Clause, which
permits, but does not mandate, a government to take narrowly tailored
action to remedy the effects of its identified past discrimination.
See, e.g., Bakke, 438 U.S. at 307 (Powell, J.). Moreover, even putting
aside the mandatory language, this provision does not expressly require
narrow tailoring to counter particular past discrimination, but rather
simply ``an obligation to take reasonable action to remove or overcome
the consequences of the prior discriminatory practice.'' This provision
accordingly promotes potentially illegal race, color, and national
origin discrimination. Moreover, in some instances, it may even coerce
recipients to consider and use racial preferences when the recipient
may not want to. This is contrary to NASA's goal of promoting and
defending a culture of nondiscrimination and is destructive to the
public's understanding of and faith in the nation's civil rights laws.
This rule, therefore, removes paragraph (e).
14 CFR 1250.103-3(d)
14 CFR 1250.103-3 addresses prohibited discriminatory employment
practices. 14 CFR 1250.103-3(a) prohibits intentionally discriminatory
employment practices in a program when a primary objective of the
Federal financial assistance that program receives is to provide
employment. 14 CFR 1250.103-3(d) extends the prohibition on
discrimination to employment practices of the funding recipient even
when the financial assistance ``is not to provide employment'' if
discrimination in the non-funded ``employment practices . . . tends, on
the ground of race, color, or national origin, to exclude persons from
participation in, to deny them the benefits of, or to subject them to
discrimination under the program receiving Federal financial
assistance.'' This section prohibits not only intentional
discrimination but also conduct that ``tends'' to have a discriminatory
effect.
Moreover, NASA notes that the extension to employment practices
where the Federal funding's primary objective is not to provide
employment conflicts with 42 U.S.C. 2000d-3. That section states that
``[n]othing contained in [Title VI] shall be construed to authorize
action under [Title VI] by any department or agency with respect to any
employment practice of any
[[Page 40877]]
employer, employment agency, or labor organization except where a
primary objective of the Federal financial assistance is to provide
employment.'' 42 U.S.C. 2000d-3; see also Johnson v. Transp. Agency,
Santa Clara Cnty., 480 U.S. 616, 627-28 n.6 (1987) (citing the
statutory limitation and noting Congress's intent that Title VI not
``impinge'' on Title VII, which prohibits discriminatory employment
practices). The rule deletes 14 CFR 1250.103-3(d) to amend the
regulation so that it more closely adheres to Title VI and to address
the legal and policy considerations and determinations described in
this document.
Section 14 CFR 1250.103-4(f)-(g)
Additionally, 14 CFR 1250.103-4(f)-(g) provide illustrative
applications of disparate-impact liability. Because NASA is removing
from its regulations the provisions establishing disparate-impact
liability, these examples are no longer relevant.
Section 14 CFR 1250.112
Finally, NASA is removing 14 CFR1250.112 because the provision is
unnecessary to effectuate 42 U.S.C. 2000d-1. No specific statutory
provision mandates or necessitates a regulation governing the internal
coordination and relationships of agency officials. 42 U.S.C. 2000d-1
directs the agency to issue rules to effectuate the nondiscrimination
requirements applicable to external recipients of Federal funds.
Although internal coordination is a necessary component of agency
operations, a formal regulation is not required to effectuate external
enforcement; such matters can be handled through internal agency
management directives. Removing this section ensures that NASA's Title
VI regulations remain fully aligned with the agency's commitment to
modernize its regulations by rescinding outdated provisions and text
that lacks a statutory basis.
IV. Severability
NASA's position is that each of the amendments described by this
rule serves a vital, related, but distinct purpose. NASA also confirms
that each of the amendments is intended to operate independently of
each other and that the potential invalidity of one amendment should
not affect the other amendments. NASA would adopt any of the amendments
independently of the invalidity of a separate amendment.
V. Legal Authority
This rule is issued under section 602 of Title VI,42 U.S.C. 2000d-
1, and the laws listed in appendix A to part 1250.
VI. Regulatory Certifications
Administrative Procedure Act
NASA issues this final rule without prior public notice and comment
or a delayed effective date pursuant to the Administrative Procedure
Act's exception for rules ``relating to agency management or personnel
or to public property, loans, grants, benefits, or contracts.'' 5
U.S.C. 553(a)(2).
Title VI concerns non-discrimination conditions on the receipt of
Federal financial assistance, and more particularly to the receipt of
Federal ``[g]rants and loans,'' ``property,'' ``personnel'' and ``[a]ny
Federal agreement, arrangement, or other contract which has as one of
its purposes the provision of assistance.'' 14 CFR 1250.102(d); see
also 14 CFR 1250.104 (requiring funding recipient sign contractual
assurance of compliance with Title VI); Cummings v. Premier Rehab
Keller, P.L.L.C., 596 U.S. 212, 217-18 (2022) (observing that Congress
enacted Title VI ``[p]ursuant to its authority to `fix the terms on
which it shall disburse federal money' '' (internal citation omitted)).
Cf. Education Programs or Activities Receiving or Benefitting from
Federal Financial Assistance, 82 FR 46655, 46655 (Oct. 6, 2017)
(invoking the section 553(a)(2) exception to amend Title IX regulations
to ``promote consistency in the enforcement of Title IX for [the
Department of Agriculture] financial assistance recipients'');
Preserving Community and Neighborhood Choice, 85 FR 47899 (Aug. 7,
2020) (invoking the exception to repeal Housing and Urban Development
rule regarding Federal grantees); Participation by Minority Business
Enterprise in Department of Transportation Programs, 53 FR 18285 (May
23, 1988) (invoking the exception to expand coverage of Department of
Transportation regulation regarding Federal Aviation Administration's
airport financial assistance program); Nondiscrimination on the Basis
of Handicap in Federally Assisted Programs--Suspension of Guidelines
with Respect to Mass Transportation, 46 FR 40687 (Aug. 11, 1981)
(invoking the exception to suspend DOJ guidelines regarding prohibiting
disability discrimination in transportation programs and activities
receiving Federal financial assistance).
Indeed, invoking 5 U.S.C. 553(a)(2) is consistent with guidance
issued by the Office for Management and Budget (OMB) under 2 CFR 200.1,
which defines ``Federal financial assistance'' with the same categories
as the Administrative Procedure Act's exception for rules ``relating to
agency management or personnel or to public property, loans, grants,
benefits, or contracts,'' 5 U.S.C. 553(a)(2). With potentially limited
exceptions not applicable to NASA, all the forms of Federal financial
assistance set forth under 2 CFR 200.1 that NASA administers would fall
under the ``public property, loans, grants, benefits, or contracts''
exception. Thus, NASA issues this final rule without prior public
notice and comment or a delayed effective date under 5 U.S.C.
553(a)(2).
Executive Order 12866 and Executive Order 13563 (Regulatory Review)
NASA has consulted the Office of Information and Regulatory Affairs
(OIRA) pursuant to section 3(f) of Executive Order 12866, Regulatory
Planning and Review, 58 FR 51735, 51738 (Sep. 30, 1993). Because this
rule makes conforming edits, aligns with DOJ's Title VI revisions, and
imposes no new requirements, this final rule is a significant
regulatory action.
This regulation has been drafted and reviewed in accordance with
Executive Order 13563 section 1(b), Improving Regulation and Regulatory
Review, 76 FR 3821, 3821 (Jan. 18, 2011), which supplements and
reaffirms the principles of Executive Order 12866. Executive Orders
12866 and 13563 direct agencies to assess all costs and benefits of
available regulatory alternatives and, if regulation is necessary, to
select regulatory approaches that maximize net benefits. 58 FR at
51735; 76 FR at 3821. Executive Order 13563 also recognizes that some
benefits and costs are difficult to quantify and provides that, where
appropriate and permitted by law, agencies may consider and discuss
qualitatively values that are difficult or impossible to quantify. Id.
As explained in the preamble, the regulatory modifications this
rule makes are necessary to conform NASA regulations to Executive Order
14281, address serious legal concerns regarding NASA's Title VI
regulation based on the Supreme Court's reading of Title VI in
Sandoval, harmonize the implementing regulation with Title VI, promote
consistency in enforcement among private plaintiffs and Federal
departments and agencies, and provide much needed clarity to courts and
Federal-funding recipients and beneficiaries regarding the scope of
NASA's Title VI regulations.
[[Page 40878]]
Data limitations make the costs and benefits of the rule difficult
to quantify. Although it does not represent the monetary impact of the
rule, NASA issued approximately 8,202 separate awards totaling
approximately $6 billion over the past 5 years. NASA does not track
which of its investigations and compliance reviews involve solely
allegations of disparate-impact discrimination. For enforcement actions
that relate to both intentional discrimination and conduct having an
unintentional disparate impact, NASA does not track and cannot reliably
quantify the costs attributable to the disparate-impact portions of
enforcement actions. That the existence of a disparate impact is a
factor that may be considered in evaluating intentional discrimination
further impedes monetizing costs and benefits. Therefore, the overall
cost effect on NASA is difficult to quantify. The deregulatory action
should decrease NASA's enforcement costs, however. It should also have
the benefit, albeit difficult to quantify, of bringing NASA's conduct
in line with the law. Similarly, NASA is unable to quantify how funding
recipients will respond to the regulatory changes. But the deregulatory
action should result in greater flexibility and lower compliance costs
for recipients.
NASA recognizes that a funding recipient may receive Federal funds
from sources other than NASA. This deregulatory action does not create
any new obligations for funding recipients. On the contrary, by
eliminating disparate-impact liability from the regulation, this rule
eliminates a source of regulatory confusion, narrows the conduct
prohibited, and thus lessens the costs of compliance and potential
liability. Moreover, recipients who receive funds for the same program
or activity from more than one Federal entity already enter into
separate contractual assurances with each funding entity, see, e.g., 14
CFR 1250.104. These contractual assurances impose varying requirements
that each Federal funding source deems necessary. Funding recipients
will continue to be held to the most stringent contractual assurance
and regulation. And in any event, NASA notes that other agencies are
currently amending their regulations to align with the changes made in
this rule, so NASA anticipates that there will be little, if any,
disparity in federal requirements regarding disparate-impact liability
going forward.
Based on the analysis of the practical qualitative costs and
benefits noted above, NASA believes that this rule is consistent with
the principles of Executive Orders 12866 and 13563, including the
requirements that, to the extent permitted by law, NASA adopt a
regulation only upon a reasoned determination that its benefits justify
its costs and choose a regulatory approach that maximizes net benefits.
See 58 FR at 51735; 76 FR at 3821.
Executive Order 14192 (Unleashing Prosperity Through Deregulation)
Executive Order 14192 requires an agency, unless prohibited by law,
to identify at least 10 existing regulations to be repealed when the
agency publicly proposes for notice and comment or otherwise
promulgates a new regulation. 90 FR 9065, 9065 (Jan. 31, 2025). In
furtherance of this requirement, section 3(c) of the Order requires
that ``any new incremental costs associated with new regulations shall,
to the extent permitted by law, be offset by the elimination of
existing costs associated with at least 10 prior regulations.'' Id.
This rule eliminates unnecessary regulation by revising NASA's current
Title VI regulations, which extend prohibited conduct to include
unintentional disparate impacts and thus expand the scope of those
regulations to a vastly broader range of conduct than the statute
prohibits. Accordingly, NASA considers this rule to be a deregulatory
action under Executive Order 14192.
Executive Order 14294 (Fighting Overcriminalization in Federal
Regulations)
NASA has reviewed this rule under Executive Order 14294 and
determined that it does not create or modify any criminal regulatory
provisions; accordingly, Executive Order 14294 does not apply.
Executive Order 13132 (Federalism)
NASA analyzed this rule under Executive Order 13132 and determined
it does not have federalism implications because it does not have
substantial direct effects on the States, alter the relationship
between the national government and the States, or affect the
distribution of power and responsibilities among levels of government.
Accordingly, no federalism summary impact statement is required.
Executive Order 12988 (Civil Justice Reform)
This final rule has been reviewed in accordance with Executive
Order 12988. It meets applicable standards to minimize litigation, is
written clearly, and has no retroactive effect.
Regulatory Flexibility Act
NASA certifies that this final rule will not have a significant
economic impact on a substantial number of small entities because it
removes provisions and clarifies the scope of existing requirements
without adding new compliance obligations.
Unfunded Mandates Reform Act (UMRA)
This rule does not contain Federal mandates that may result in the
expenditure by State, local, or Tribal governments, in the aggregate,
or by the private sector, of $100 million or more in any one year;
therefore, sections 202 and 205 of UMRA do not apply.
Congressional Review Act (CRA)
NASA will submit the rule and the required reports to Congress and
the Government Accountability Office pursuant to 5 U.S.C. 801. OIRA has
determined that this final rule is not a ``major rule'' under 5 U.S.C.
804(2).
Paperwork Reduction Act
This final rule contains no new or revised information collection
requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.).
Executive Order 12250
Pursuant to section 1-202 of Executive Order 12250, DOJ has the
responsibility to ``review . . . proposed rules . . . of the Executive
agencies'' implementing nondiscrimination statutes such as Title VI in
order to identify those which are inadequate, unclear or unnecessarily
inconsistent.'' Additionally, section 1-101 of Executive Order 12250
delegated the President's responsibility to approve Title VI
regulations to the Attorney General. See 42 U.S.C. 2000d-1. DOJ has
reviewed and approved this rule.
List of Subjects in 14 CFR Part 1250
Administrative practice and procedure, Civil rights, Equal
employment opportunity, Grants programs.
For the reasons stated in the preamble, NASA amends 14 CFR part
1250 as follows:
PART 1250--NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS OF
NASA-EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964
0
1. The authority citation for part 1250 continues to read as follows:
Authority: Sec. 602, 78 Stat. 252, 42 U.S.C. 2000d-1; and the
laws listed in appendix A to this part.
[[Page 40879]]
Sec. 1250.102 [Amended]
0
2. In Sec. 1250.102(b), remove the word ``Applicable'' and add in its
place ``Applicant.''
Sec. 1250.103-2 [Amended]
0
3. In Sec. 1250.103-2:
0
a. In paragraph (a)(3), remove the words ``or effect'' wherever they
appear.
0
b. Remove paragraphs (b) and (e).
0
c. Redesignate paragraphs (c) and (d) as paragraphs (b) and (c).
Sec. 1250.103-3 [Amended]
0
4. In Sec. 1250.103-3, remove paragraph (d).
Sec. 1250.103-4 [Amended]
0
5. In Sec. 1250.103-4, remove paragraphs (f) and (g).
Sec. 1250.112 [Removed]
0
6. Remove Sec. 1250.112.
Jamie Krauk,
Director, Office of the Executive Secretariat (OES).
[FR Doc. 2026-13624 Filed 7-2-26; 8:45 am]
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