U.S. Secretary of Education Linda McMahon has issued a statement supporting the Department of Justice’s Office of Legal Counsel (OLC) opinion regarding the constitutionality of race-based criteria in federal higher education grant programs. The OLC determined that using racial quotas and preferences to determine eligibility for federal funding is unconstitutional.
“I agree with the Office of Legal Counsel opinion, which confirms that using race quotas and preferences to determine eligibility for federal education funding programs is unconstitutional. We cannot, and must not, attach race-based conditions when allocating taxpayer funding. This is another concrete step from the Trump Administration to put a stop to DEI in government and ensure taxpayer dollars support programs that advance merit and fairness in all aspects of Americans lives. The Department of Education looks forward to working with Congress to reform these programs,” McMahon said.
In July 2025, the U.S. Solicitor General concluded that Hispanic-Serving Institutions (HSI) programs violate the equal-protection component of the Fifth Amendment's Due Process Clause. As a result, the Department of Justice decided not to defend these programs against legal challenges brought by Students for Fair Admissions and the State of Tennessee.
Following this determination, the Department of Education requested that OLC assess whether higher education grant programs using race as a criterion were constitutional after the Supreme Court’s decision in Students for Fair Admissions v. Harvard.
On September 10, 2025, the Department announced it would redirect discretionary funds from Minority Serving Institution (MSI) programs considered constitutionally problematic to other areas. However, about $132 million in mandatory funding was still distributed because it could not be reprogrammed. The Department stated it does not plan to recover previously allocated funds from past years but will phase out affected programs moving forward.
The OLC issued its formal opinion on December 2, 2025, analyzing whether provisions within MSI program statutes could be separated from their broader authorizing laws if found unconstitutional. The Department is currently reviewing how this opinion will affect ongoing operations and has indicated further guidance will be provided at a later date.
Programs impacted by these developments include Developing Hispanic Serving Institutions; Promoting Postbaccalaureate Opportunities for Hispanic Americans; Hispanic Serving Institutions–Science, Technology, Engineering or Mathematics and Articulation Programs; Native American Serving Non-Tribal Institutions; Asian American and Native American Pacific Islander Serving Institutions; Minority Science and Engineering Improvement Program; Predominantly Black Institutions formula grants; Predominantly Black Institutions competitive grants; The Ronald E. McNair Postbaccalaureate Achievement Program; Student Support Services; Alaskan Native and Native Hawaiian Serving Institutions; and Native Hawaiian Career and Technical Education Program.
