[Federal Register Volume 91, Number 148 (Tuesday, August 4, 2026)]
[Rules and Regulations]
[Pages 49283-49290]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-15778]
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NATIONAL SCIENCE FOUNDATION
45 CFR Part 611
RIN 3145-AA74
Nondiscrimination in Federally Assisted Programs of the National
Science Foundation
AGENCY: U.S. National Science Foundation.
ACTION: Final rule.
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SUMMARY: The U.S. National Science Foundation (NSF or Foundation) is
revising its regulations implementing Title VI of the Civil Rights Act
of 1964 (Title VI). NSF is taking this action to align the conduct
prohibited by NSF's regulations with Title VI's text, avoid
constitutional concerns, reduce compliance costs, serve the public
interest, ensure consistency with the final rule recently issued by the
Department of Justice (DOJ), and implement the direction outlined in
Executive Order (E.O.) 14281.
DATES: The Rule is effective on August 4, 2026.
FOR FURTHER INFORMATION CONTACT: Scott Carr, Equal Opportunity
Specialist, U.S. National Science Foundation, Randolph Building, 401
Dulany Street, Alexandria, VA, 22314, (703) 292-7020, [email protected].
SUPPLEMENTARY INFORMATION:
I. Executive Summary
NSF is rescinding portions of its regulations promulgated pursuant
to Title VI to more closely align its regulations with the language
Congress enacted in Title VI prohibiting intentionally discriminatory
conduct, see 42 U.S.C. 2000d. There are serious statutory and
constitutional concerns with the legality of provisions in NSF's Title
VI regulations that 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. First, this rule rescinds
45 CFR 611.3(b)(2), which currently prohibits the utilization of
``criteria or methods of administration which have the effect of
subjecting individuals to discrimination because of their race, color,
or national origin.'' Second, this rule removes the two uses of the
phrase ``or effect'' from 45 CFR 611.3(b)(3). Third, this rule rescinds
45 CFR 611.3(b)(6). Fourth, this rule rescinds 45 CFR 611.3(c)(4),
which addresses employment practices of Federal funding recipients.
Fifth, this rule rescinds CFR 611.5(6) and (7), which provide
illustrative examples of disparate-impact liability without a showing
of intentional discrimination.
These changes also align NSF's Title VI regulations with changes
made by DOJ in its 2025 Final Rule (2025 DOJ Final Rule). 90 FR 57141.
Finally, NSF's rule conforms to E.O. 14281, Restoring Equality of
Opportunity and Meritocracy, 90 FR 7537 (Apr. 28, 2025). The practical
impact of this rule's deletions will be to clarify for NSF Federal
funding recipients that NSF's Title VI regulations do not prohibit
disparate impact and prohibit only intentional discrimination, and that
NSF thus will not pursue Title VI disparate impact liability against
its Federal funding recipients.
II. Discussion
A. Statutory Background
NSF is a Federal agency that supports science and engineering in
all 50 States and in U.S. territories. Established by the National
Science Foundation Act of 1950, Public Law 81-507, 64 Stat. 149
(codified at 42 U.S.C. 1861 et seq.), NSF promotes the progress of
science; advances the national health, prosperity, and welfare; and
secures the national defense. To support these missions, NSF funds
basic research conducted at U.S. colleges and universities, in fields
such as mathematics, computer science, engineering, and biotechnology,
and Science, Technology, Engineering, and Mathematics (STEM) workforce
development. NSF also funds research infrastructure, ranging from
individual instruments to major research facilities and equipment
(e.g., computing facilities, U.S. Antarctic stations, and large
telescopes). The funding is provided chiefly through grants.
Title VI, as amended, prohibits intentional discrimination on the
``ground of race, color, or national origin'' in all programs or
activities that receive 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, specifically prohibits
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 unintentional disparate impact. And despite ample
opportunities, Congress has enacted no subsequent amendments to Title
VI to impose disparate-impact liability.
B. Regulatory History of 45 CFR Part 611
NSF's Title VI implementing regulations are codified at 45 CFR part
611. NSF issued these regulations in 1964 upon approval by President
Lyndon B. Johnson. NSF's Title VI regulations were subsequently amended
[[Page 49284]]
five times: in 1973, see 38 FR 17920 (July 5, 1973) (incorporating
changes recommended by DOJ); in 1984, see 49 FR 37594 (Sept. 25, 1984)
(making technical corrections); in 1986, see 51 FR 22938 (June 24,
1986) (simplifying internal NSF procedures for approving orders
suspending, terminating, or refusing to grant federal financial
assistance); in 1994, see 59 FR 37437 (July 22, 1994) (housekeeping
amendments); and in 2003, see 68 FR 51334 (Aug. 26, 2003) (aligning
with the Civil Rights Restoration Act of 1987, Pub. L. 100-259). NSF's
implementing regulation describing the scope of conduct considered to
be discriminatory and therefore prohibited, codified at 45 CFR 611.3,
currently includes prohibitions addressing conduct giving rise to an
unintentional disparate impact. NSF's regulations also include examples
illustrating the application of these provisions to some of the
programs funded by NSF, at 45 CFR 611.5.
C. Relevant Supreme Court Decisions
The Supreme Court has concluded 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 concluded
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's
Title VI holding, 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 to enforce DOJ's
``disparate-impact regulations.'' Id. at 285-87. Though 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. While the Supreme Court in Sandoval ``assume[d],''
without deciding, that DOJ's disparate-impact regulations were valid,
the Court explained that the regulations are in ``considerable
tension'' with the Supreme Court's Title VI precedents. Id. at 282.
Similarly, the regulations do 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.''). The
rationale of that holding applies with equal force to NSF's Title VI
regulations, which mirror DOJ's Title VI regulations.
In 2023, the Court emphasized that ``the equal protection clause
requires equality of treatment before the law for all persons without
regard to race or color.'' SFFA, 600 U.S. at 205 (cleaned up). In
reviewing the admissions policies of certain higher education
institutions, the Court explained that the Constitution requires
``eliminating all'' racial discrimination. Id. at 206. To that end, it
held that ``[a]ny exception to the Constitution's demand for equal
protection must survive a daunting two-step examination known in our
cases as `strict scrutiny,' '' which requires that racial
classifications `` `further compelling government interests' '' and be
`` `narrowly tailored'--meaning `necessary'--to achieve [such]
interest[s].'' Id. at 206-07. Moreover, the Court explained that its
``precedents have identified only two compelling interests that permit
resort to race-based government action,'' only one of which is relevant
in general government administration: ``remediating specific,
identified instances of past discrimination that violated the
Constitution or a statute.'' Id. at 207.
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
reaching that result, 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 when there is no discriminatory intent. Sandoval,
532 U.S. at 280, 286 n.6.
D. Executive Order 14281
On April 23, 2025, the President issued E.O. 14281. This Order
restated the ``bedrock principle of the United States . . . that all
citizens are treated equally under the law.'' 90 FR at 17537. The Order
explained 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.
The Order also explained that disparate-impact liability
``endangers this foundational principle.'' Id. Disparate-impact
liability, the Order reasoned, ``all but requires individuals and
businesses to consider race and engage in racial balancing to avoid
potentially crippling legal liability.'' Id. As the Order explained,
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 relayed 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. The Order directed the Attorney
General to, among other things, review Title VI regulations and
``initiate appropriate action to repeal or amend'' them ``to the extent
they contemplate disparate-impact liability.'' Id. at 17538.
Accordingly, this rule revises the Foundation's Title VI regulations to
effectuate the Order's policy and purpose under the leadership of the
Attorney General.
[[Page 49285]]
In any event, the Foundation would have initiated steps toward
making these changes regardless of E.O. 14281. The Order states, and
the Foundation firmly agrees, 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 the single,
best meaning of 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, the Foundation concludes that these reasons, separately
and together, support eliminating disparate-impact liability from the
Foundation's Title VI regulations.
E. 2025 DOJ Final Rule
Pursuant to E.O. 12250, Leadership and Coordination of
Nondiscrimination Laws, 45 FR 72995 (Nov. 4, 1980), DOJ is the lead
Federal agency responsible for defining the nature and scope of Title
VI's prohibition of discrimination on the basis of race, color, and
national origin in programs or activities receiving Federal financial
assistance. As part of this responsibility, E.O. 12250 requires the
Attorney General to approve other agencies' regulations implementing
Title VI. See id. at 72995-96.
On December 10, 2025, DOJ issued the 2025 DOJ Final Rule rescinding
portions of its Title VI regulations to more closely align the
regulations with Title VI's prohibition on intentionally discriminatory
conduct. 90 FR 57141 (Dec. 10, 2025). DOJ articulated statutory and
constitutional concerns with the legality of provisions in DOJ's Title
VI regulations that went beyond intentional discrimination by
prohibiting conduct that has an unintentional disparate impact. See id.
The 2025 DOJ Final Rule rescinded those portions of the regulations
because DOJ concluded they were in considerable tension with the
statute and Constitution and did not sufficiently serve the public
interest. See id.
NSF agrees with the reasoning expressed in DOJ's final rule and
provides a similar rationale for this rulemaking.
F. Need for Rulemaking
The Foundation's regulations at 45 CFR part 611, entitled
``Nondiscrimination in Federally-Assisted Programs of the National
Science Foundation--Effectuation of Title VI of the Civil Rights Act of
1964,'' contain several provisions that prohibit conduct or activities
causing unintentional disparate impact, without a statutory or
constitutional basis for doing so. And in some instances, the
regulations may encourage or even require unlawful discrimination
labeled as ``reasonable action.'' Section 611.3(b)(2) 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.'' 45
CFR 611.3(b)(2). Beyond that general prohibition, section 611.3(b)(3)
addresses a Federal funding recipient's selection of the site or
location of facilities and includes two references to ``effect'' that
extend the scope of prohibited conduct to include conduct with
unintentional disparate impact. Id. 611.3(b)(3). Section 611.3(b)(6)
concerns the use of ``reasonable action,'' and provides that funding
recipients may (and sometimes must) use race, color, or national origin
to overcome unintentional disparate ``effects,'' but does not expressly
specify that the funding recipient must narrowly tailor such use to
serve a compelling governmental interest, as is required to satisfy
strict scrutiny. Id. 611.3(b)(6). Section 611.3(c) addresses prohibited
discriminatory employment practices and extends beyond intentional
discrimination to prohibiting conduct that ``tends'' to have a
discriminatory effect. Id. 611.3(c)(4). Finally, 45 CFR 611.5(6) and
(7) provide illustrative examples of disparate-impact liability without
a showing of intentional discrimination. Id. 611.5(6)-(7).
There are serious statutory and constitutional concerns with the
legality of the Foundation's Title VI disparate-impact regulations. The
Foundation 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
may produce burdensome litigation and compliance costs for the
Foundation's grantees.
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 Bright, 603 U.S. at 400. As summarized
above, Sandoval calls into serious doubt the legality of the
Foundation's ``disparate-impact regulations.'' 532 U.S. at 281-82, 284-
85 (noting that DOJ's regulations are in ``considerable tension'' with
the Supreme Court's Title VI precedents);\1\ see also id. at 286 n.6
(``[Title VI] permits the very behavior that the regulations
forbid.''). Although Sandoval resolved only the question of private
enforceability, subsequent cases such as Loper Bright have made clear
that the Foundation cannot extend Title VI beyond its single, 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, the Foundation would
have concluded that the best reading of Title VI is that it prohibits
only intentional discrimination.
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\1\ NSF's regulations, which are modeled off DOJ's regulations,
and are approved by the Attorney General, would similarly be in
tension with Sandoval.
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Title VI authorizes agencies to promulgate regulations ``to
effectuate'' the statute's prohibition of intentional discrimination.
42 U.S.C. 2000d-1. The current regulations' extension of prohibited
conduct to include conduct with an unintentional disparate impact
reaches a vastly broader range of conduct than the statute itself. This
range 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 the Foundation'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
[[Page 49286]]
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 the Foundation'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 the 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. This serious constitutional
concern further confirms that the best reading of Title VI is that it
prohibits only intentional discrimination and does not authorize the
Foundation 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 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 ``reasonable action'' provision authorizes and
sometimes requires the intentional use of race without requiring that
this use be narrowly tailored to serve a recognized compelling
interest. Instead, it encourages intentional racial balancing ``to
overcome the consequences of'' unintended racial disparities. 45 CFR
611.3(b)(6). Thus, for substantially the same reasons as above, the
``reasonable action'' provision raises serious constitutional concerns.
As summarized above, there are serious statutory and constitutional
concerns with the Foundation's disparate-impact regulations. But even
if the regulations were legal, the Foundation 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, the
Foundation 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
The Foundation also has serious policy concerns with the Title VI
regulations' imposition of disparate-impact liability. While the
Foundation expresses its policy concerns with disparate-impact
liability independent of E.O. 14281, that Order sets forth many valid
policy concerns with disparate-impact liability. As noted in section 1
of the Order, ``[o]n 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 leads covered entities to engage in racial balancing even as
Title VI forbids intentional racial discrimination. This tension tends
to create confusion, undermine public confidence in the Nation's civil
rights laws, and undermine public confidence 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'' at issue were
``themselves imprecise in many ways'' and ``the use of these opaque
racial categories undermine[d], instead of promote[d], [their]
goals''). Although many of the Foundation's grant proposals focus on
minority groups to comply with statutory requirements, see e.g., 42
U.S.C. 1862n-10 (minority-serving institutions undergraduate program);
42 U.S.C. 1862p-4 (undergraduate broadening participation program),
some of them may have explicitly targeted certain racial groups without
specific statutory authorization. For example, in 2025, NSF terminated
awards to ensure alignment with agency priorities. A list of those
awards, publicly available at https://www.nsf.gov/updates-on-priorities#archived-information-41b, identifies awards that targeted
racial groups and inclusion and diversity in STEM education.\2\ The
Foundation believes that amending its regulations to avoid encouraging
the use of imprecise and arbitrary racial categories will help maintain
clarity and public confidence in the Nation's civil rights laws.
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\2\ This list can be found under the Frequently Asked Question,
Is there a publicly available list of the awards NSF has terminated?
The entries on this list notwithstanding, NSF has complied with the
terms and conditions of all preliminary and permanent injunctions
requiring award reinstatement.
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The Foundation has considered the view that looking at disparate
effects can be useful in identifying and deterring subtle intentional
discrimination or intentional
[[Page 49287]]
indifference to unnecessary and arbitrary barriers. But any benefits
are outweighed by the other issues and factors that the Foundation has
considered, such as, for example, the need for NSF's regulations to be
consistent with DOJ's regulations and other grant-making agencies'
regulations. And in any event, the concern is mitigated by the fact
that eliminating disparate-impact liability does not preclude the use
of data on disparate outcomes to help prove intentional discrimination.
Indeed, NSF's regulations at section 611.6, which remain unchanged by
this rulemaking, require that recipients of NSF grant funding keep
complete and accurate compliance information available for inspection
by the responsible Foundation official. Private litigants rely on such
data as a potential indicator of intentional discrimination. This use
of statistical disparity to help establish, as an evidentiary matter,
liability for intentional discrimination materially differs from using
such disparity to impose liability for an unintentional disparate
impact.
The Foundation has also considered the alternative of trying to
adopt a modified version of disparate-impact liability, for example, by
requiring covered entities to remedy unintentional discrimination for
only certain types of cases involving areas with historical patterns of
discrimination, such as education. But any version of imposing
liability for unintentional discrimination is inconsistent with Title
VI's single, best meaning. Regardless, even a modified version of
disparate-impact liability would not eliminate the Foundation's serious
legal and policy concerns. The Foundation determines that any benefits
from a regulation adopting alternative versions of disparate-impact
liability are outweighed by those 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. The Foundation believes that the
better course is to avoid the complexities, costs, and litigation
associated with this alternative, even if eliminating disparate-impact
liability ultimately would leave some problems unaddressed and others
inadequately addressed.
The Foundation additionally has considered the potential reliance
interests of funding recipients and others on the disparate-impact
regulations. As noted in section IV.B of this preamble NSF estimates
that since 2017, fewer than 30 percent of the total number of civil
rights complaints received included alleged violations of Title VI, and
of that number, NSF accepted and investigated only 1.3 percent.\3\
Moreover, NSF has not identified any Title VI violations by NSF
awardees since 2005 and presently has no ongoing disparate-impact
complaints, investigations, or other enforcement activity. Based on
this data, NSF believes there exists minimal evidence of meaningful
reliance interests. In addition, the Sandoval decision cast serious
doubt on the continuing viability of the regulations more than 25 years
ago. E.O. 14281 also directed all agencies to ``deprioritize
enforcement of all statutes and regulations to the extent they include
disparate-impact liability,'' which includes the Foundation's Title VI
disparate-impact regulations. 90 FR at 17538. The Foundation
accordingly believes that such minimal reliance interests would likely
not outweigh the Foundation's legal and policy concerns. Further, each
of the Foundation's concerns, whether considered cumulatively or
separately, outweighs any reliance interests.
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\3\ Of the 75 formal complaints filed with NSF that included an
alleged violation of Title VI, 1 (1.3 percent) was accepted for
investigation, 46 (61.3 percent) were dismissed due to
jurisdictional, procedural, or contextual issues, 26 (34.7 percent)
were referred to another office, 1 (1.3 percent) was withdrawn by
the complainant, and 1 (1.3 percent) is currently under review.
---------------------------------------------------------------------------
The Foundation 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 the Foundation 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, the Foundation finds that,
regardless of the legality of the Foundation'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 Changes
For the reasons summarized above, NSF is revising its Title VI
regulations at 45 CFR part 611 consistent with the 2025 DOJ Final Rule
and the authorities described in the 2025 DOJ Final Rule. The practical
impact of this rule's revisions will be to clarify for NSF federal
funding recipients that NSF's Title VI regulations do not prohibit
unintentional disparate impact and NSF thus will not pursue Title VI
disparate-impact liability against its Federal funding recipients. A
section-by-section analysis of the changes follows, consistent with the
changes in the 2025 DOJ Final Rule.
A. Table Summarizing Amendments
The table below indicates the exact wording changes. For each
section indicated in the left column, the text shown in the middle
column is removed and the text shown in the right column is added:
------------------------------------------------------------------------
Section Remove Add
------------------------------------------------------------------------
611.3(b)(2)............ Full text of paragraph: ``[Reserved]''.
``(2) A recipient . .
. or national
origin.''.
611.3(b)(3)............ Both instances of ``or
effect''.
611.3(b)(6)............ Full text of paragraph:
``(6) This regulation
. . . to accomplish
the purposes of the
Act.''.
611.3(c)(4)............ Full text of paragraph:
``(4) Where a primary
objective of . . .
beneficiaries.''.
611.5.................. Full text of paragraphs
(6) and (7)..
------------------------------------------------------------------------
B. Section-by-Section Analysis
Section 611.3(b)(2)
Section 611.3(b)(2) is the current regulation's general prohibition
of unintentional disparate impact. This paragraph expands prohibited
conduct from purposeful discrimination to Federal funding recipients
who ``utilize criteria or methods of administration which have the
effect of subjecting individuals to discrimination because of their
race, color, or national origin.'' Because this paragraph's only
purpose is to extend the scope of the regulation
[[Page 49288]]
to conduct causing unintentional disparate impacts, this rule deletes
the paragraph, consistent with Title VI and the 2025 DOJ Final Rule.
The rule replaces paragraph (b)(2) with a placeholder to maintain the
numbering accuracy of previous citations and other references to parts
of this section.
Section 611.3(b)(3)
Section 611.3(b)(3) addresses a Federal funding recipient's or
applicant's selection of sites or locations of facilities. The
paragraph 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 NSF's implementing regulations. The
paragraph's two references to ``effect'' extend its scope to
unintentional disparate impacts. This rule deletes both instances of
``or effect'' to conform paragraph (b)(3) more closely to Title VI, the
2025 DOJ Final Rule, and the other authorities described herein.
Section 611.3(b)(6)
Section 611.3(b)(6) addresses a recipient's ``reasonable action''
with respect to race, color, and national origin. Paragraph (b)(6)
authorizes affirmative action in programs even in the absence of a
finding of prior discrimination in a program ``if the purpose and
effect are to remove or overcome the consequences 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.'' The provision
consequently authorizes intentional racial classifications, racial
preferences, and other race-based actions without the compelling
interest and narrow tailoring required by the Equal Protection Clause--
practices that have long been unlawful under an Equal Protection Clause
analysis.
Paragraph (b)(6) also requires a recipient ``to take reasonable
action to remove or overcome the consequences of the prior
discriminatory practice or usage, and to accomplish the purposes of the
Act'' ``[w]here previous discriminatory practice 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.'' This provision goes beyond the Equal Protection Clause,
which, in limited circumstances 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. Accordingly, it promotes potentially
illegal race, color, and national origin discrimination. This rule,
therefore, removes paragraph (b)(6).
Section 611.3(c)(4)
Section 611.3(c) addresses prohibited discriminatory employment
practices for Federal funding recipients. Paragraph (c)(4) extends the
prohibition to employment practices of the recipient even ``[w]here a
primary objective of the Federal financial assistance is not to provide
employment'' if discrimination in the nonfunded ``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 paragraph does not prohibit only
intentional discrimination but rather extends to conduct that ``tends''
to have a discriminatory effect on a program without the primary
objective of providing employment. Moreover, paragraph (c)(4)'s
extension to employment practices where the Federal funding's primary
objective is not to provide employment conflicts with Congress's
statutory limitation wherein ``[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 employer,
employment agency, or labor organization except where a primary
objective of the Federal financial assistance is to provide
employment.'' See 42 U.S.C. 2000d-3. Consistent with Title VI and the
2025 DOJ Final Rule, this removes paragraph (c)(4).
Section 611.5
Section 611.5 provides examples to illustrate the application of
the Title VI regulatory provisions to some of the programs aided by
NSF. To conform with the changes discussed above, NSF is removing the
two examples, paragraphs (6) and (7), that illustrate disparate-impact
enforcement.
IV. Regulatory Certifications
A. Administrative Procedure Act
NSF issues this final rule without prior public notice and comment
or a delayed effective date pursuant to the exception in the
Administrative Procedure Act (APA) 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 and NSF's implementing regulations concern
nondiscrimination conditions on the receipt of Federal financial
assistance. They apply 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.'' 45 CFR 611.13(e); see also 45 CFR 611.4
(requiring funding recipients to provide assurance of compliance with
Title VI in such form as specified by the ``responsible Foundation
official.''). Cf. Education Programs or Activities Receiving or
Benefitting From Federal Financial Assistance, 82 FR 46655 (Oct. 6,
2017) (invoking the exception to amend Title IX regulations to
``promote consistency in the enforcement of Title IX for [Department of
Agriculture] financial assistance recipients''); Preserving Community
and Neighborhood Choice, 85 FR 47899 (Aug. 7, 2020) (invoking exception
to repeal a 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 a Department of Transportation
regulation regarding the 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 prohibiting disability
discrimination in transportation programs and activities receiving
Federal financial assistance).
Invoking this exception to notice and comment is consistent with
the definition for Federal financial assistance provided by the U.S.
Office of Management and Budget (OMB) in 2 CFR 200.1, which defines
such assistance with the same categories as the APA's exception for
rules ``relating to agency management or personnel or to public
property, loans, grants, benefits, or contracts.'' With potentially
limited exceptions not applicable to the Foundation, all the forms of
Federal
[[Page 49289]]
financial assistance set forth under 2 CFR 200.1 that the Foundation
administers would fall under the ``public property, loans, grants,
benefits, or contracts'' exception. Finally, prompt alignment with the
2025 DOJ Final Rule is also necessary to ensure uniform administration
of Title VI, and to avoid inconsistent enforcement and potential
confusion by recipients of Federal funding assistance. Thus, NSF issues
this final rule without prior public notice and comment or a delayed
effective date.
B. Executive Orders 12866 (Regulatory Planning and Review), 13563
(Regulatory Review), and 14192 (Unleashing Prosperity Through
Deregulation)
Executive Orders 12866, 58 FR 51735 (Sep. 30, 1993), and 13563, 76
FR 3821 (Jan. 18, 2011), direct agencies to assess the costs and
benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits.
E.O. 13563 emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
It 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. In a similar vein, E.O. 14192, 90
FR 9065 (Jan. 31, 2025), directs agencies to significantly reduce the
private expenditures required to comply with Federal regulations and
provides 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 ten prior
regulations.''
OMB has designated this rule a ``significant regulatory action''
under section 3(f) of E.O. 12866, although not economically significant
under section 3(f)(1). Accordingly, this rule has been reviewed by OMB.
It is also considered a deregulatory action under E.O. 14192.
As explained in the preamble, the regulatory modifications this
rule makes are necessary to conform NSF's Title VI regulations to Title
VI, the 2025 DOJ Final Rule, and the other authorities described
therein. The practical impact of this rule's deletions will be to
clarify for NSF Federal funding recipients that NSF's Title VI
regulations do not prohibit conduct giving rise to disparate impact and
that NSF thus will not pursue Title VI disparate-impact liability
against its funding recipients.
As with the 2025 DOJ Final Rule, data limitations make the costs
and benefits of the rule difficult for NSF to quantify. This rule
affects NSF funding recipients. Congress appropriated approximately
$8.8 billion to NSF in fiscal year 2025 to support NSF's rigorous merit
review system. In that same fiscal year, NSF received over 43,000
proposals, generating 8,377 competitive awards to 1,621 institutions in
50 states, the District of Columbia, and 3 territories. See FY 2025
Agency Financial Report (Dec. 18, 2025), https://www.nsf.gov/reports/performance/agency-financial-report.
NSF estimates that, since 2017, fewer than 30 percent of the total
number of civil rights complaints it received included alleged
violations of Title VI. Of that number, 64 percent were dismissed due
to insufficient evidence or other disqualifying factors, 33 percent
were referred to another Federal agency, 1.5 percent were withdrawn by
the complainant, and 1.5 percent were accepted and investigated by NSF.
Although Title VI requirements are considered during on-site as well as
virtual compliance reviews, since NSF established its awardee
compliance review program in 2005, NSF reviews have not identified any
Title VI violations by NSF awardee organizations.
Presently, NSF has no disparate-impact complaints under
consideration, no active disparate-impact investigations, and no
associated disparate-impact compliance-review activity. For enforcement
actions that relate to both intentional discrimination and
unintentional disparate impact, NSF does not track and cannot reliably
quantify the costs attributable to the varying disparate-impact
portions of enforcement actions. That disparate impact is sometimes a
factor that may be considered in determining whether discrimination was
intentional further impedes monetizing costs and benefits. Therefore,
the overall cost effect on NSF is difficult to quantify. However, this
deregulatory action should decrease NSF's enforcement costs. And the
benefit of this rule is to align NSF's regulations with Title VI and
DOJ regulations.
Similarly, NSF is unable to quantify how funding recipients will
respond to the regulatory changes. But the deregulatory action may
result in greater flexibility and lower compliance costs for
recipients. NSF recognizes that a funding recipient may receive Federal
funds from sources other than, and in addition to, NSF. DOJ noted in
its rule that DOJ expected its rule will cause other Federal
departments and agencies to consider similarly revising their Title VI
regulations. Like DOJ, NSF does not envision that this rule will
appreciably increase administrative costs or compliance costs for
funding recipients who must also adhere to the regulations of other
departments or agencies. The deregulatory action that NSF takes here
does not create any new obligations for funding recipients. On the
contrary, by eliminating disparate-impact liability from NSF's
regulation, NSF eliminates a source of regulatory confusion, narrows
and makes more specific 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., 45 CFR 611.4; 34 CFR 100.4. These
contractual assurances already impose varying requirements that each
Federal funding source deems necessary. Funding recipients will
continue to be held to the most stringent contractual assurance
standards. And in any event, NSF notes that it and other agencies are
currently amending their regulations to align with the changes made in
the DOJ Final Rule, so the Foundation 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, NSF believes that this rule is consistent with
the principles of EOs 12866 and 13563, including the requirements that,
to the extent permitted by law, NSF adopt a regulation only upon a
reasoned determination that its benefits justify its costs and choose a
regulatory approach that maximizes net benefits. This action is also
consistent with the directive of E.O. 14192 to reduce regulatory
compliance costs.
C. Executive Order 12250
Pursuant to E.O. 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.'' 45 FR at
72995. DOJ has reviewed and approved this rule.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement and Fairness Act of 1996, requires an
agency to prepare and make available to the public a final regulatory
flexibility analysis that describes the effect of a rule on small
entities (i.e., small
[[Page 49290]]
businesses, small organizations, and small governmental jurisdictions)
when the agency was required ``to publish a general notice of proposed
rulemaking'' prior to issuing the final rule. See 5 U.S.C. 604(a). This
rule does not require a regulatory flexibility analysis because, for
the reasons described above, no notice of proposed rulemaking is
required under 5 U.S.C. 553. See Or. Trollers Ass'n v. Gutierrez, 452
F.3d 1104, 1123-24 (9th Cir. 2006) (noting that the RFA does not apply
when an agency validly invokes an exception to the public comment
requirements of 5 U.S.C. 553).
Further, even if a final regulatory flexibility analysis were
required, NSF, in accordance with 5 U.S.C. 605(b), has reviewed these
regulations and certifies that the rule's changes will not have a
significant economic impact on a substantial number of small entities,
because these regulatory changes do not impose any new substantive
obligations on NSF's funding recipients. The rule merely amends and
clarifies existing regulations that are required by Title VI, bringing
NSF into compliance with Title VI and changes made by the 2025 DOJ
Final Rule. All Federal funding recipients have been previously bound
by the standards that will remain in place following this rule.
E. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et
seq., an agency may not conduct or sponsor, and a person is not
required to respond to, a collection of information unless it displays
a valid control number issued by OMB. This rule does not propose new,
or revisions to existing, ``collection[s] of information'' as that term
is defined under the PRA, and its implementing regulations.
F. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among
other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and Tribal governments. Title II of UMRA
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate that may result in an expenditure of
$100 million or more (adjusted annually for inflation) in any one year
by State, local, and Tribal governments, in the aggregate, or by the
private sector. The term ``Federal mandate'' means a Federal
intergovernmental mandate or a Federal private sector mandate. See 2
U.S.C. 658(6), 1502(1). A ``Federal intergovernmental mandate,'' in
turn, is a provision that would impose an enforceable duty upon State,
local, or Tribal governments (except as a condition of Federal
assistance or a duty arising from participation in a voluntary Federal
program). See 2 U.S.C. 658(5). And the term ``Federal private sector
mandate'' refers to a provision that would impose an enforceable duty
upon the private sector (except as a condition of Federal assistance or
a duty arising from participation in a voluntary Federal program). See
2 U.S.C. 658(7).
NSF has determined that this rulemaking will not result in the
expenditure by State, local, and Tribal governments, in the aggregate,
nor by the private sector, of $100 million or more in any one year as a
result of a Federal mandate, and it will not significantly or uniquely
affect small governments. In addition, UMRA's requirements do not apply
to any provision in a proposed or final Federal regulation that
establishes or enforces any statutory rights that prohibit
discrimination on the basis of race, color, religion, sex, national
origin, age, handicap, or disability. 2 U.S.C. 1503(2). Therefore, no
actions are deemed necessary under UMRA.
G. Congressional Review Act
The Office of Information and Regulatory Affairs has found that
this is not a ``major rule'' as defined by Subtitle E of the Small
Business Regulatory Enforcement Fairness Act of 1996, also known as the
Congressional Review Act. 5 U.S.C. 804(2). This rule would not result
in an annual effect on the economy of $100 million or more; a major
increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign
based companies in domestic and export markets. The rule merely narrows
the scope of NSF's Title VI regulations to conform them to the scope of
Title VI, the 2025 DOJ Final Rule, and the authorities described
therein. Doing so does not impose any new obligations on any recipients
of Federal funding.
H. Federalism
A rule has implications for federalism under E.O. 13132,
Federalism, 64 FR 43255 (Aug. 4, 1999), if it has substantial direct
effects on the States, on the relationship between the National
Government and the States, or on the distribution of power and
responsibilities among the various levels of government. NSF has
analyzed this rule under this order and determined it does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
I. Civil Justice Reform
This rule meets applicable standards set forth in sections 3(a) and
3(b)(2) of E.O. 12988, Civil Justice Reform, 61 FR 4729 (Feb. 5, 1996)
to minimize litigation, eliminate ambiguity, and reduce burden.
List of Subjects for 45 CFR Part 611
Civil rights, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, the National Science
Foundation amends 45 CFR part 611 as follows:
PART 611--NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS OF THE
NATIONAL SCIENCE FOUNDATION--EFFECTUATION OF TITLE VI OF THE CIVIL
RIGHTS ACT OF 1964.
0
1. The authority citation for part 611 continues to read as follows:
Authority: Sec. 11(a), National Science Foundation Act of 1950,
as amended, 42 U.S.C. 1870(a); 42 U.S.C. 2000d-1.
0
2. In section 611.3:
0
a. Remove and reserve paragraph (b)(2);
0
b. Revise paragraph (b)(3);
0
c. Remove paragraph (b)(6); and
0
d. Remove paragraph (c)(4).
The revisions read as follows:
Sec. 611.3 Discrimination prohibited.
* * * * *
(b) * * *
(2) [Reserved]
(3) In determining the site or location of facilities, a recipient
or applicant may not make selections with the purpose 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 of
defeating or substantially impairing the accomplishment of the
objectives of the Act or this regulation.
* * * * *
Sec. 611.5 [Amended]
0
3. In Sec. 611.5, remove paragraphs 6 and 7.
Brian Stone,
Senior Official Performing the Duties of the Director, U.S. National
Science Foundation.
[FR Doc. 2026-15778 Filed 8-3-26; 8:45 am]
BILLING CODE 7555-01-P