The Department of Justice’s Office of Legal Counsel on Thursday issued an opinion clarifying limits on how the Department of Education may consider race in administering the Magnet Schools Assistance Program, the department said.
The department said the opinion reaffirms support for magnet schools but ensures federal aid is not conditioned on unconstitutional race-based criteria. It applies to the program that provides competitive grants to school districts to promote voluntary desegregation and expand educational opportunities, according to the department.
The opinion says the program’s statutory and regulatory framework ties funding to race-based concepts, including “minority-group isolation” and the use of racial data to shape decisions. Because of that, the opinion concludes the program must be evaluated under the Constitution’s most rigorous test, strict scrutiny.
Under that standard, the opinion states the Education Department may approve grants only when an applicant shows its use of race is narrowly tailored to remedy a specific, identified instance of unlawful discrimination. The opinion also says grants based only on aims such as increasing racial diversity, reducing racial isolation, or altering racial balance—without tying those goals to the remediation of illegal discrimination—cannot be approved.
Assistant Attorney General T. Elliot Gaiser of the Office of Legal Counsel said the opinion “reaffirms a foundational principle of our constitutional order: government programs must treat individuals as individuals, not as members of racial groups.” Deputy Assistant Attorney General Joshua Craddock, who signed the opinion, said, “Our Constitution is colorblind, and federal programs must reflect that.”
The department said it will work with the Education Department to ensure awards under the program comply with these constitutional requirements while continuing to support magnet schools’ mission.