Justice Department Legal Opinion Says Federal Magnet Schools Grants Violate Equal Protection in Most Cases; Education Department Told to Change How It Awards Them

The Justice Department's Office of Legal Counsel has concluded that a long-running federal grant program for magnet schools violates the Constitution's equal-protection guarantee in many of its applications, and that the Department of Education must change how it awards the money.

The 37-page opinion, dated Nov. 5 and signed by Deputy Assistant Attorney General Joshua J. Craddock, answers a July 24 request from the Education Department's acting general counsel, Candice Jackson. The Digital Free Press reviewed the opinion.

What the Magnet Schools Program Does

The Magnet Schools Assistance Program, which dates to a 1984 law, gives competitive multiyear grants to school districts for magnet schools, public schools with special programs meant to draw students from across a district. The opinion says the Education Secretary has awarded "hundreds of millions of dollars" under it.

The opinion says the program's stated purpose is "to assist in the desegregation of schools," and that federal rules tie awards to reducing or preventing "minority group isolation." As a result, it says, funds "go to magnet schools based on their racial compositions for the purpose of changing their racial mix," not on educational need or school quality.

The opinion also cites figures the Education Department supplied: at the time of the request, 52 grantees were carrying out voluntary desegregation plans and only eight were under court-ordered plans.

Why OLC Says It Fails Strict Scrutiny

Relying on the Supreme Court's 2023 decision striking down race-conscious college admissions and its 2026 ruling in Louisiana v. Callais, the opinion says the program "facially classifies by race" and so must pass strict scrutiny, the toughest test courts apply.

It says the only race-based interests the Supreme Court has accepted are remedying "specific, identified instances of past discrimination" and preventing imminent safety risks in prisons. Goals such as diversity or racial balance do not qualify, the opinion says, and it adds that the program's race requirement "lacks a clear endpoint."

"As currently structured and administered, the program triggers strict scrutiny and, in most cases, cannot satisfy it," the opinion states. It adds that some grants "could theoretically" pass, "although we are not aware of any specific grant that currently does so."

The opinion stops short of calling the law unconstitutional on its face. Instead, it reads the statute to allow grants only to districts that show they are remedying a specific instance of illegal discrimination, with awards narrowly tailored to that goal. It says the problem is "especially pronounced" for voluntary plans, which lack a court finding of illegal discrimination, and that meeting the standard "may prove difficult" for such a plan today.

What It Means for Schools

"Federal dollars must never be used to engineer unconstitutional racial balancing," Craddock said in a Justice Department release. Assistant Attorney General T. Elliot Gaiser said "only in exceptionally rare circumstances may funding decisions turn on a school's racial composition."

The opinion is legal advice to the executive branch, not a court ruling. The release says the Justice Department will work with the Education Department to ensure awards comply. Neither document says what happens to grants already awarded.

Sources: U.S. Department of Justice, Office of Legal Counsel, "Whether the Magnet School Assistance Program Violates the Constitution's Equal-Protection Guarantee," Nov. 5, 2026 (https://www.justice.gov/olc/media/1470461/dl); U.S. Department of Justice, Office of Public Affairs, Nov. 5, 2026 (https://www.justice.gov/opa/pr/justice-department-says-federal-education-aid-cannot-be-tied-unconstitutional-race-based). Cover photo: Lyndon Baines Johnson Department of Education Building, by Farragutful, via Wikimedia Commons (CC BY-SA 4.0).