On July 24, 2026, the Department of Education published a final rule removing the effects-based provisions from its Title VI regulations (RIN 1870-AA20, 91 FR 46733). The rule took effect on publication. The Department of Health and Human Services published a parallel rule the same day. Under the revised text, section 100.3(b)(3) provides that a recipient "may not make selections with the purpose of excluding individuals from, denying them the benefits of, or subjecting them to discrimination." The operative word is purpose.
It would be easy to read this as a narrowing of exposure. In one sense it is: a policy that is neutral on its face and adopted without discriminatory purpose no longer creates liability under the Department's regulations because of its effects alone. But the enforcement that followed the rule has gone the other way, toward the cases that are easiest to prove under an intent standard.
Where enforcement went
On August 17, the Justice Department opened a Title VI compliance review of the College of William & Mary's scholarship and student benefit programs. The review names five programs across undergraduate study, the School of Education, and the Law School.
On September 9, the Justice Department and the Department of Education announced a joint finding that the University of California, Berkeley School of Law discriminated on the basis of race in admissions. On September 22, the Justice Department announced findings against the UCSF School of Medicine, which we addressed in an earlier Insight. On October 1, it announced findings against the UCLA School of Law, which we examined separately.
The common thread is not admissions. It is selection. Each matter asks who is eligible for something the institution offers, and on what criteria.
Why eligibility criteria come first
A criterion that names race, color, or national origin is an express classification. Under an intent standard, it is not a hard case. The document proves itself. That is why a program's written eligibility rules are the first place a reviewer looks, and why they should be the first place an institution looks.
Many of these criteria were not written by a compliance office. They sit in scholarship descriptions, fellowship announcements, gift agreements, program web pages, and application forms, often drafted years ago by the unit that runs the program.
How to review them
Institutions should build an inventory of every program that selects people or distributes a benefit. That includes institutional and donor-restricted scholarships, fellowships, pathway and bridge programs, research and internship programs, awards, and housing or orientation programs with separate eligibility. PK-12 districts should include magnet, advanced, and enrichment programs.
For each program, collect the current written criteria from every place they appear, not only the official policy. Identify any criterion that names race, color, or national origin as a requirement or a preference, and any criterion adopted to stand in for one.
Route donor-restricted funds to counsel and advancement together. A gift agreement is a contract, and changing how a restricted fund is awarded may require the donor's consent, a court, or both. That process takes time and should start before a letter arrives.
Document how selections are actually made. The criteria on paper and the practice in the room should match, and the institution should be able to show that they do.
The regulations now ask about purpose. The first evidence of purpose is what the institution wrote down.
Sources
- Federal Register, U.S. Department of Education final rule rescinding portions of its Title VI regulations, 91 FR 46733, July 24, 2026.
- Federal Register, U.S. Department of Health and Human Services final rule rescinding portions of its Title VI regulations, July 24, 2026.
- U.S. Department of Justice, "Justice Department Investigates William & Mary's Scholarships and Student Benefits," August 17, 2026.
- U.S. Department of Justice, "Joint Investigation by the U.S. Justice Department and U.S. Department of Education Finds U.C. Berkeley Law School Discriminates Based on Race in Admissions," September 9, 2026.