Key Takeaways
- The Department of Justice’s Office of Legal Counsel has determined that using racial quotas and preferences to determine eligibility for federal education funding programs is unconstitutional.
- The Department of Education will no longer allocate funds to programs that use race-based conditions, and will instead work with Congress to reform these programs.
- The affected programs include several Minority Serving Institution (MSI) programs, such as Hispanic-Serving Institutions and Native American Serving Non-Tribal Institutions.
- The Department of Education will not claw back previously obligated funds from grantees, but will instead wind down the unconstitutional programs.
- The Department is currently evaluating the full impact of the OLC opinion and will provide more information at a later date.
Introduction to the Statement
U.S. Secretary of Education Linda McMahon recently released a statement regarding the Department of Justice’s Office of Legal Counsel’s (OLC) opinion on the constitutionality of racial quotas and preferences in the Department of Education’s Minority Serving Institution Programs. In her statement, Secretary McMahon expressed her agreement with the OLC opinion, which confirms that using race quotas and preferences to determine eligibility for federal education funding programs is unconstitutional. This decision marks a significant step towards ensuring that taxpayer dollars support programs that advance merit and fairness in all aspects of Americans’ lives.
Background on the Decision
The OLC opinion was issued in response to a request from the Department of Education to assess the constitutionality of higher education programs that determine institutional eligibility for benefits based on race. This request was made in light of the Supreme Court’s decision in Students for Fair Admissions v. Harvard, which raised questions about the use of racial quotas and preferences in education. In July 2025, the U.S. Solicitor General determined that Hispanic-Serving Institutions (HSI) programs violate the equal-protection component of the Fifth Amendment’s Due Process Clause, and that the Department of Justice would not defend them in litigation brought against the Department by Students for Fair Admissions and the State of Tennessee.
The Department’s Response
In response to the OLC opinion, the Department of Education announced that it would reprogram discretionary appropriations from MSI programs to other programs that do not present constitutional concerns. The Department did disburse approximately $132 million in mandatory funding that could not be reprogrammed. As the Department winds down these unconstitutional programs, it does not intend to claw back from grantees previously obligated funds from prior fiscal years. The Department is currently evaluating the full impact of the OLC opinion on affected programs and will provide more information at a later date.
Affected Programs
The affected programs include several Minority Serving Institution (MSI) programs, such as Developing Hispanic Serving Institutions, Promoting Postbaccalaureate Opportunities for Hispanic Americans, and Hispanic Serving Institutions–Science, Technology, Engineering, or Mathematics and Articulation Programs. Other affected programs include Native American Serving Non-Tribal Institutions, Asian American and Native American Pacific Islander Serving Institutions, and the Ronald E. McNair Postbaccalaureate Achievement Program. These programs were established to provide support and resources to institutions that serve minority students, but the OLC opinion has determined that the use of racial quotas and preferences in these programs is unconstitutional.
Conclusion and Next Steps
The Department of Education’s decision to end the use of racial quotas and preferences in federal education funding programs marks a significant shift in the way that these programs are administered. The Department will work with Congress to reform these programs and ensure that they are fair and equitable for all students. The Department is committed to supporting programs that advance merit and fairness in all aspects of Americans’ lives, and will continue to evaluate the impact of the OLC opinion on affected programs. As the Department moves forward, it will provide more information and guidance to grantees and stakeholders, and will work to ensure a smooth transition to new programs and initiatives.