Most federal magnet school grants fail constitutional review under recent Supreme Court precedents, federal government lawyers concluded in a new legal opinion.
In other words, the grants trigger and fail strict scrutiny—the toughest legal test—meaning the government almost certainly can’t justify the race-based approach.
The opinion, released Nov. 5 by the Department of Justice’s Office of Legal Counsel (OLC), advises the Department of Education that the Magnet School Assistance Program (MSAP), as it is currently structured and run, violates equal protection requirements in most cases.
The office provides legal advice to the president and the executive branch. Its opinions do not carry the same legal weight as court-issued opinions but are considered binding within the executive branch.
MSAP is a competitive federal grant program that supports theme-based magnet schools. Such schools offer specialized curricula—such as STEM and robotics, performing arts, International Baccalaureate, dual language immersion, or Montessori—designed to attract students from across a district.
Congress created the program to help districts reduce racial isolation and expand educational choices. Over the years, the program has awarded hundreds of millions of dollars.
The Office of Legal Counsel found that the program sorts schools by race and spends money to reshuffle their racial mix—what opinion author Deputy Assistant Attorney General Joshua Craddock calls racial balancing—instead of fixing discrimination that a court has actually found.
The distinction matters because the Supreme Court has said racial classifications are permitted only when they cure a specific legal wrong, not when they chase a preferred demographic outcome. The opinion describes the current approach as largely that kind of initiative.
Under program rules, the Education Department prioritizes grants for schools that will reduce or prevent what it calls “minority group isolation.” Applicants have to submit detailed racial enrollment data, and the education secretary is directed to favor proposals that improve racial balance.
The opinion finds that this use of race triggers strict scrutiny. To survive, a race-based program must serve a compelling government interest and be narrowly tailored to that interest.
The Supreme Court has recognized only one compelling interest for such classifications in this context: remedying specific, identified instances of past illegal discrimination.
As currently administered, the opinion says, the program fails that test in most cases, and the Department of Education is not aware of any existing grant that meets the standard.
Most current grants are voluntary desegregation plans rather than court-ordered ones, and they lack a judicial finding of specific illegal discrimination, so they face an especially high bar. Many districts have already achieved unitary status, which means courts have determined they no longer need race-based remedies for past segregation.
The opinion notes that the progress the country has made toward eliminating illegal segregation is “cause for celebration,” even if it narrows the circumstances in which race-based funding can continue.
The statute itself is not unconstitutional overall. The department can keep the program if it restricts grants to schools remedying specific instances of illegal discrimination and ensures the funds are narrowly focused on that goal, including a logical endpoint.
Court-ordered desegregation plans have a clearer path than voluntary ones, provided they still address an ongoing, specific violation and are not simply maintained for funding eligibility.
The opinion, signed by Craddock, cites recent Supreme Court decisions, including Students for Fair Admissions v. Harvard and Louisiana v. Callais, which tightened the limits on race-conscious government action.
Craddock said MSAP “can continue to serve students across the country—but only if it is administered constitutionally.”
“Federal dollars must never be used to engineer unconstitutional racial balancing. Our Constitution is colorblind, and federal programs must reflect that,” he said in a statement.
The opinion rejects a competing theory advanced by University of Chicago law professor Sonja Starr.
In a 2024 Stanford Law Review article titled “The Magnet School Wars and the Future of Colorblindness,” Starr argued that K–12 schools can use race-conscious measures to reduce racial isolation without triggering strict scrutiny.
She relied on former Justice Anthony Kennedy’s concurrence in Parents Involved in Community Schools v. Seattle School District No. 1 (2007), which struck down voluntary race-conscious assignment plans in Seattle and Louisville.
Kennedy agreed with the outcome but said districts may consider overall enrollment numbers and adopt general policies to encourage diversity, so long as they don’t use a student’s race as the deciding factor in placing that student.
The Justice Department’s Office of Legal Counsel rejects that reading, saying Kennedy’s concurrence was not the narrowest ground of the decision and that Students for Fair Admissions has since closed the door on race-conscious balancing aimed at demographic outcomes, rather than remedying a violation a court has found.
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