Keith’s note: NASA has just published “Final rule – Nondiscrimination in Federally Assisted Programs of NASA– Effectuation of Title VI of the Civil Rights Act of 1964” in the Federal Register.
In essence this is the culmination of a long list of executive orders, directives, speeches, etc. about DEI/DEIA, diversity, discrimination, equal rights etc. Specifically it refers to “Disparate impact liability” which an A.I. I queried defines as “Disparate impact liability holds employers, housing authorities, and businesses accountable for facially neutral policies that disproportionately and unjustifiably harm a protected group. Disparate-impact liability arises when a facially neutral policy unintentionally excludes a protected group, while DEI initiatives intentionally aim to correct historical imbalances. Recently, the U.S. Department of Justice (DOJ) and Department of Labor (DOL) moved to roll back these liabilities, making Diversity, Equity, and Inclusion (DEI) compliance highly legally scrutinized.”
I grabbed these paragraphs out of along rambling document that says the same things over and over again with lots of legal citations and abbreviations to show the highlights of this final rule as it applies to NASA. I highlighted a few things too. Of course this is in lock step with implementations in agencies across the Federal Government – and NASA is not allowing any public feedback on any of this – except for a few routine legalistic reasons.
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.”
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.”
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.
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.
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.
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. — 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 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.”
And so on.
