Exclusive: DOJ Stops Race-Based Funding For Federal Student Aid

The Department of Justice issued a legal opinion Thursday officially stating that federal education aid cannot be tied to race-based initiatives, such as increasing racial diversity or artificially altering racial balance. The slip opinion, obtained by The Federalist, addresses specifically the Department of Education’s Magnet Schools Assistance Program (MSAP), which the Department of Justice says “facially classifies by race and is motivated by the racially discriminatory purpose of changing the racial composition of K–12 schools.” The MSAP was created by Congress to support magnet schools, allowing the secretary of education to give local agencies funding for the schools. The program has awarded hundreds of millions of dollars toward this end, and the Department of Justice recognizes that magnet schools “provide meaningful opportunities for school choice, and foster academic excellence and innovation within the public school system.” However, the program has an underlying obsession with race, according to the opinion. “Notwithstanding magnet schools’ important contributions to public education, MSAP grants are not primarily focused on promoting academic excellence. Their purpose ‘is to assist in the desegregation of schools,’” the opinion reads. “The statutory and regulatory scheme thus requires the Secretary to prioritize race when awarding funds. The consequence is that the MSAP scheme does not allow the Secretary to allocate program funds to any public school based on educational need or school quality. Funds instead go to magnet schools based on their racial compositions for the purpose of changing their racial mix.” The opinion states that MSAP “triggers strict scrutiny,” which is the most stringent standard for judicial review of the constitutionality of government action. The program is so fundamentally focused on race, according to the DOJ, that “some MSAP grants could theoretically satisfy strict scrutiny’s exacting standards, although we are not aware of any specific grant that currently does so.” “This is a huge win for qualified American students legitimately needing student aid as well as for American taxpayers,” a Justice Department official told The Federalist. “It’s a big blow to the DEI movement.” During the civil rights era and school desegregation, the paradigm was such that schools could be subject to court-ordered desegregation plans. MSAP was created with the “overarching purpose” to “assist in the desegregation of schools” and “promote diversity.” The parameters for program eligibility are also explicitly racial, and require that participating organizations are “part of an approved desegregation plan” that is “designed to bring students from different social, economic, ethnic, and racial backgrounds together.” Right now, there are 60 active MSAP grants across school districts in 18 states, 52 of which are implementing voluntary plans, and eight of which are implementing court-ordered plans. However, as the opinion noted, the U.S. Supreme Court has made recent rulings on the unconstitutionality of such explicit racial plans in both Students for Fair Admissions v. Harvard and Louisiana v. Callais. “The Supreme Court explained that ‘[d]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality,'” the opinion states, quoting Callais, which itself quoted SFFA. The opinion pointed to a 2017 $10,121,928 grant to Napa Valley Unified School District (NVUSD), which set a goal of “reducing supposed Hispanic/Latino isolation by ‘at least 2 percentage points per year.’” In 2023 the Department of Education issued a $14,981,002 grant to Ypsilanti Community Schools (YCS) for transitioning four schools to magnet schools. YCS proposed a marketing strategy for recruitment to achieve its “racial balances” and eliminate “Black student isolation.” The opinion notes that “minority groups,” as defined by Congress, consist of “four discrete racial or ethnic groupings,” none of which are white. “Schools with an acceptable mix of races (whatever that means) are thus disadvantaged or entirely precluded from accessing grant funds,” the opinion states. “And schools with isolated majority races are likewise disadvantaged. The program was enacted by Congress with a “discriminatory purpose,” the opinion states. The opinion encourages potential detractors to consider a parallel program that awarded funds to schools seeking to isolate students based on race and achieve racial homogneity. “A grant recipient cannot set race-based admissions quotas. But to receive funds, they must engage in race-conscious strategies — such as selective marketing and strategic school placements — to maximize racial isolation. Few would argue that a program like that should be subjected to anything less than strict scrutiny.” The Constitution would only allow the secretary of education to apply race-based awards of the program in specific, narrow instances for the purposes of “remediating … illegal discrimination,” the slip opinion says. But the opinion also notes that applying strict scrutiny is “automatically fatal” for a majority of programs that involve racial considerations, and while MSAP is not necessarily unconstitutional as a whole, its entire functionality as currently practiced is. “Given the progress that the United States has made toward remediating illegal discrimination in K–12 education, it may prove difficult for a voluntary desegregation plan today to establish the factual predicates needed to survive strict scrutiny,” the opinion concludes. “'[T]hat is cause for celebration.’” Breccan F. Thies is the White House correspondent for The Federalist. He is a co-recipient of the 2025 Dao Prize for Excellence in Investigative Journalism. As an investigative journalist, he previously covered education and culture issues for the Washington Examiner and Breitbart News. He holds a degree from the University of Virginia and is a 2022 Claremont Institute Publius Fellow. You can follow him on X: @BreccanFThies. DEIDepartment of EducationDepartment of JusticeDiversity Equity & InclusionLouisiana v. Callaisrace-based discriminationracial quotasStudents for Fair Admissions v. Harvard