DOJ Says Federal Magnet School Grants Cannot Be Tied to Unconstitutional Race-Based Criteria

The U.S. Department of Education may use race-based criteria to award federal magnet school grants only when the funding is narrowly tailored to remedy a specific instance of unlawful discrimination, the Justice Department’s Office of Legal Counsel said in a Nov. 5 opinion.

The opinion addresses the Magnet Schools Assistance Program, which awards competitive grants to school districts to support desegregation and expand educational opportunities. Magnet schools are public schools that offer specialized curricula designed to attract students from different backgrounds. Federal law allows districts to apply under either a desegregation plan imposed by a court or other authorized government body or a voluntary plan approved by the education secretary.

The program’s rules call for districts with voluntary plans to explain how they would reduce, prevent or eliminate what the regulations call “minority group isolation” at magnet schools or at the schools their students would otherwise attend. The Office of Legal Counsel concluded that tying awards to racial criteria triggers strict scrutiny, the most demanding standard of constitutional review.

Under the opinion, a district’s goal of increasing racial diversity, reducing racial isolation or changing a school’s racial makeup is insufficient on its own to justify a race-based award. The district would need to identify a specific instance of unlawful discrimination and show that its proposed use of race is narrowly tailored to remedy it.

The opinion provides legal guidance to the Education Department on how it can continue awarding grants under the program. The Justice Department said it would work with education officials to apply the opinion to grant decisions.