Justice Department Says Federal Education Aid Cannot Be Tied to Unconstitutional Race-Based Criteria

Today, the Department of Justice’s Office of Legal Counsel issued an opinion clarifying the limits on the Department of Education’s authority to consider race when administering the Magnet Schools Assistance Program (MSAP). MSAP is a federal grant program designed to promote voluntary school desegregation and expand educational opportunities for students through competitive grants to school districts. The opinion reaffirms the federal government’s longstanding support for magnet schools while ensuring that federal assistance is not conditioned on unconstitutional race‑based criteria.

“Today’s opinion reaffirms a foundational principle of our constitutional order: government programs must treat individuals as individuals, not as members of racial groups,” said Assistant Attorney General T. Elliot Gaiser of the Justice Department’s Office of Legal Counsel. “Although Congress has long recognized the value of magnet schools, the Equal Protection Clause limits how the federal government may lend them support. Only in exceptionally rare circumstances may funding decisions turn on a school’s racial composition.”

“The Magnet School Assistance Program can continue to serve students across the country—but only if it is administered constitutionally,” said Deputy Assistant Attorney General Joshua Craddock, who signed the opinion. “Federal dollars must never be used to engineer unconstitutional racial balancing. Our Constitution is colorblind, and federal programs must reflect that.”

The opinion explains that MSAP’s statutory and regulatory framework ties federal funding to race‑based concepts such as “minority‑group isolation” and the use of racial data to shape funding decisions. Because these criteria condition federal support on racial considerations, the opinion concludes that the program must be evaluated under the Constitution’s most rigorous standard: strict scrutiny. 

Under that standard, the Department of Education may approve MSAP grants only when an applicant demonstrates that its use of race is narrowly tailored to remedy a specific and identified instance of illegal discrimination. The opinion makes clear that grants based solely on goals such as increasing racial diversity, reducing racial isolation, or altering racial balance—untethered from the remediation of unlawful discrimination—cannot be approved.

The Department of Justice will work closely with the Department of Education to ensure that MSAP awards fully comply with these constitutional requirements while continuing to support the mission of magnet schools: fostering academic excellence, innovation, and meaningful educational opportunities for students across the country.

Read the full opinion here.