Race-based funding for Minority-Serving Institutions unconstitutional: Linda McMahon supports official legal finding
US Secretary of Education Linda McMahon has publicly supported the Office of Legal Counsel’s (OLC) opinion stating that race-based criteria in Minority Serving Institution (MSI) programmes are unconstitutional. McMahon emphasised that federal education funding cannot attach conditions based on race, aligning with the Trump Administration’s initiative to eliminate Diversity, Equity, and Inclusion (DEI) frameworks within government programmes, as quoted by the Department of Education.The announcement follows a legal assessment requested from the OLC after litigation from Students for Fair Admissions and the State of Tennessee challenged the constitutionality of racial quotas in federal education grants. “We cannot, and must not, attach race-based conditions when allocating taxpayer funding,” McMahon said in a statement issued by the Department of Education.OLC opinion highlights constitutional concernsThe OLC released its formal opinion on December 2, 2025, evaluating the Department of Education’s MSI programmes. The legal advisory confirmed an earlier determination by the US Solicitor General in July 2025, which found that Hispanic-Serving Institutions (HSI) programmes violated the equal protection component of the Fifth Amendment’s Due Process Clause, as reported by the Department of Justice.In light of these findings, the Department plans to reprogramme discretionary appropriations from affected MSI programmes to alternatives that do not present constitutional concerns. Mandatory funding previously disbursed, amounting to approximately $132 million, will remain with grantees, McMahon said in a statement issued by the Department of Education.Affected programs under reviewThe Department is assessing the full impact of the OLC opinion on a range of federal education initiatives. The programmes affected include:
| Programme name | Description |
| Developing Hispanic Serving Institutions | Grants to support development of HSI infrastructure |
| Promoting Postbaccalaureate Opportunities for Hispanic Americans | Funding for postgrad opportunities for Hispanic students |
| Hispanic Serving Institutions–Science, Technology, Engineering, or Mathematics | STEM and articulation grants for HSIs |
| Native American Serving Non-Tribal Institutions | Support for non-tribal Native American institutions |
| Asian American and Native American Pacific Islander Serving Institutions | Grants supporting AANAPISI initiatives |
| Minority Science and Engineering Improvement Program | Funding to enhance minority participation in STEM |
| Predominantly Black Institutions formula grants | Formula-based grants for PBIs |
| Predominantly Black Institutions competitive grants | Competitive grant opportunities for PBIs |
| Ronald E. McNair Postbaccalaureate Achievement Program | Postgraduate achievement programme grants |
| Student Support Services | Funding for student retention and success programmes |
| Alaskan Native and Native Hawaiian Serving Institutions | Support for ANNHSI institutions |
| Native Hawaiian Career and Technical Education Program | Career and technical education funding for NH institutions |
Department outlines next stepsThe Department of Education confirmed that it is evaluating how to implement the OLC opinion across the affected programmes. “We look forward to working with Congress to ensure taxpayer dollars support programmes that advance merit and fairness,” McMahon said in the press statement.The legal opinion comes after the Supreme Court’s ruling in Students for Fair Admissions v. Harvard and signals a significant shift in how federal education funding will be allocated, prioritising constitutional compliance and merit-based eligibility criteria.
