The U.S. Secretary of Education, Linda McMahon, has recently addressed the legal opinion issued by the Department of Justice’s Office of Legal Counsel (OLC) regarding race-based grant programs. Her statement emphasizes that the use of racial quotas and preferences for federal education funding is unconstitutional. This opinion aligns with the broader initiative of the Trump Administration to eliminate Diversity, Equity, and Inclusion (DEI) frameworks within governmental programs.
Key Aspects of the Legal Opinion on Race-Based Grant Programs
On December 2, 2025, the OLC delivered its findings on the constitutionality of the Department of Education’s Minority Serving Institution (MSI) Programs. The opinion notably echoed a determination made earlier by the U.S. Solicitor General in July 2025, which stated that Hispanic-Serving Institutions (HSI) programs violate equal protection under the Fifth Amendment’s Due Process Clause.
Due to the implications of this opinion, the Department of Education plans to reprogram funds from MSI programs to alternatives that do not raise constitutional issues. However, it will not retract previously allocated mandatory funding, which amounts to approximately $132 million.
Context and Background
The legal advisory emerged following litigation from Students for Fair Admissions and the State of Tennessee against race-based funding programs. The Department of Education sought an assessment from the OLC regarding the Supreme Court’s ruling in the case of Students for Fair Admissions v. Harvard.
In response, the Department of Education had already announced plans to address concerns regarding racial eligibility criteria by September 10, 2025. Moving forward, the Department aims to ensure that taxpayer funds are allocated based on merit and fairness.
Affected Programs
The programs impacted by this decision include a range of initiatives aimed at supporting various minority groups. Key programs affected are:
- Developing Hispanic Serving Institutions
- Promoting Postbaccalaureate Opportunities for Hispanic Americans
- Hispanic Serving Institutions–Science, Technology, Engineering, or Mathematics
- 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
- Native Hawaiian Career and Technical Education Program
The Department of Education is currently assessing the full impact of the OLC’s findings on these programs and will provide updates as necessary. McMahon’s commitment reflects a significant shift in how federal education funding may be allocated, emphasizing a commitment to merit-based approaches.
