On December 2, 2025, the U.S. Justice Department (DOJ) Office of Legal Counsel issued a memorandum opinion for the Department of Education (ED) regarding the constitutionality of race-based ED programs. In it, the top office, entrusted with providing legal counsel for all federal agencies, targets all ED-administered “grants, preferences, and scholarships that distinguish between beneficiaries based on race” as unconstitutional.

The Office of Legal Counsel examined 10 ED programs against the constitutional standards of equal protection and the severability doctrine. The following six of the 10 programs were found to “[define]
their beneficiaries in a manner that is plainly unconstitutional”:

1. Hispanic Serving Institutions (HSI)
2. Alaskan Native and Native Hawaiian-Serving Institutions (ANNHSI)
3. Native American-Serving Non-Tribal Institutions (NASNTI)
4. Asian American and Native American Pacific Island-Serving Institutions (AANAPISI)
5. Native Hawaiian Career and Technical Education (NHCTE)
6. Formula-based Predominantly Black Institutions (PBI)

Furthermore, the office argues that “[t]he unconstitutional portions of these programs are inseverable from their surrounding statutory schemes.” Similarly, the race-based restrictions on access to data from the Free Application for Federal Student Aid (FAFSA) have also been found unconstitutional.

However, competitive PBI, Minority Science and Engineering Improvement (MSEI), Ronald E. McNair Postbaccalaureate Achievement Program (McNair), and Student Support Services are “constitutionally administrable,” according to the memo.

After giving detailed explanations for the constitutionality or lack thereof of each ED program, the Office of Legal Counsel proceeded with its conclusion:

[T]here are constitutional ways for the Department of Education to administer the MSEI, McNair, PBI competitive-grant, and Student Services Support programs, and the Department may therefore expend appropriations to administer these programs in a manner consistent with this opinion. But the Constitution precludes the Department from maintaining its HSI, ANNHSI, NASNTI, NHCTE, and formula-based PBI grant programs. Funds appropriated for these unconstitutional programs may be repurposed or reprogrammed in appropriate circumstances.

This memo, coupled with an earlier announcement by the DOJ’s Solicitor General not to defend HSI’s constitutionality in court, deals a huge blow to the race industry. $350 million in federal taxpayer funds were handed out annually to reward schools where at least 25 percent of the student body is Hispanic. No more, says the federal government.

Certainly, this well-deserved end to illegal race programs at ED did not come to fruition in a vacuum. In fact, many civil rights leaders and organizations have long advocated against the blatant use of race in federal education funding.

For several years, my colleague, former United States Civil Rights Commissioner and National Association of Scholars (NAS) Board Member, Gail Heriot, has written and spoken about this issue. In a New Criterion article published before the Supreme Court’s landmark ruling on Students for Fair Admissions (SFFA) v. Harvard, Gail argues for abolishing federal subsidies for HSIs:

The HSI program shovels hundreds of millions of dollars annually through no fewer than nine federal agencies to hundreds of colleges and universities that have been designated as HSIS. To be eligible for these funds, at least 25 percent of the students at the institution must be Hispanic. In theory, there is a requirement that some of the students be ‘needy,’ but this requirement can be waived. Every year, each HSI must recertify that at least 25 percent of its students are Hispanic, so it is important not to slip below that threshold.

This is patently unconstitutional and should therefore be repealed. Federal money is being doled out to colleges and universities based on the race or ethnicity of its students. Alarm bells should have gone off in the heads of the members of Congress who created this program.

Adam Kissel, NAS Board Member, Visiting Fellow for Higher Education Reform at the Heritage Foundation, and University of West Florida board trustee, agrees. In a 2021 New York Post article, Adam elaborates on four reasons why race-based federal funding for colleges is problematic:

First, the law doesn’t even pretend to be redressing past discrimination, except in the case of historically black colleges and universities (HBCUs, distinct from PBIs) … Second, any racial classification by government must be narrowly tailored … Third, the quotas are arbitrary. They are based on no social science showing that having, for example, 10 percent native Hawaiian students is meaningful … Fourth, as the Supreme Court wrote in 1989 in City of Richmond v. J.A. Croson Co., ‘Classifications based on race … may, in fact, promote notions of racial inferiority and lead to a politics of racial hostility.’

In 2018, I helped draft a letter to the chancellor of the University of California, Berkeley, on behalf of the Asian American Coalition for Education. The letter addresses the chancellor’s announcement to strategically steer Berkeley towards becoming an HSI:

Drafting your institution’s strategic plan to become a HSI directly translates into a 25% Hispanic quota in your student population, which is in clear violation of the U.S. Supreme Court decision in Regents of the University of California v. Bakke which ruled specific racial quotas as impermissible. Reiterated in the 2003 Supreme Court decision in Grutter v. Bollinger, this rule states that: ‘a race-conscious admissions program cannot use a quota system –it cannot ‘insult[e] each category of applicants with certain desired qualifications from competition with all other applicants.’

I have also opined on the subject with a case study on minority serving institutions (MSIs) in California, published on 12 media platforms in Southern California:

In California, 167 colleges and universities are certified ‘Minority Serving Institutions (MSI),’ a federal program that rewards schools that enroll certain percentages of minority students with ‘in-kind services, volunteerism, diverse hiring, grants and contacts.’… MSIs enjoy a federally bestowed advantage over non-MSI schools for having achieved demographically significant student bodies, even though the qualifying number of minority students may have vastly different individual backgrounds. For instance, some may come from wealthy, new immigrant families while others come from poverty perpetuated generationally. Without capturing individual-level nuances, MSI programs are unfairly instituted based on crude race and ethnicity considerations.  Of the 167 MSIs in California, many are public universities governed under Proposition 209, which bans racial preferences in public education. Notably, of the 23 California State University campuses, 21 are touted as HSIs. The University of California system celebrates five of its nine undergraduate campuses as HSI-designated. These taxpayer-funded institutions use the federal MSI designation to claim exemptions from Prop. 209. They should not be allowed to do so.

Last but not least, the issue received renewed media attention in 2025, after SFFA joined the State of Tennessee in filing a federal lawsuit to challenge HSI’s constitutionality. The court of public opinion meets the court of law. According to the lawsuit, several Tennessee colleges and universities are excluded from necessary federal assistance because they have insufficient numbers of Hispanic students. These schools “would otherwise be eligible for HSI grants based on neutral criteria such as low educational expenditures and high numbers of low-income students.”

But to arrest the remnants of racial discrimination at the federal level in a way that transcends elections and other political shifts, we need legislative solutions as well. In this regard, ongoing efforts to introduce legislation in Congress to solidify the executive position, legal pressure, and policy advocacy against MSIs. To this end, we ought to support new model legislation developed by the American Civil Rights Project: “Enforcing the Law on Colorblind Admissions–Congress can stop unconstitutional discrimination and fund better alternatives,” which proposes four constitutional alternatives to MSI programs:

1. Abolish MSI Programs and Enhance the Pell Grant Program. 
2. Abolish MSI Programs and Replace Them with Grants for Higher-Education Students Learning English.
3. Replace MSI Programs with Block Grants to the States. 
4. Replace MSI Programs with Sunset Block Grants to the States. 

This is a timely initiative that would incentivize public policies to support both equal treatment and merit-based government assistance for higher education. It is about time that we seriously confront the poison of race-based federal funding and seek sensible alternatives.

Luckily, Senator Jim Banks of Indiana has responded to the proposal by introducing Senate Bill No. 3433 to eliminate certain higher education funding to certain minority-serving institutions and use the funding for other purposes. You can contact your congressional representatives to support the bill.

Follow Wenyuan Wu on X.