Key Points
- The Justice Department’s Office of Legal Counsel said on November 5, 2026, that most Magnet Schools Assistance Program grants fail the Constitution’s strict scrutiny test as the program runs today.
- Future grants can go only to districts that use race narrowly to remedy a specific, identified instance of illegal discrimination.
- Of the 60 active magnet school grants in 18 states, 52 back voluntary plans with no court finding of discrimination.
The federal program that helps districts build magnet schools just got a new legal limit. A Justice Department opinion released Thursday says the money can’t pay for racial-balancing plans, and it lands as the administration promotes its $1,700 school choice tax credit for 2027.
The Office of Legal Counsel opinion (PDF File) finds that the Magnet Schools Assistance Program (MSAP) triggers strict scrutiny, the Constitution’s toughest test for government use of race. Its conclusion is blunt: the current program “in most cases, cannot satisfy it.”
Going forward, the Education Department may approve a grant only when a district uses race narrowly to fix a specific, identified instance of illegal discrimination. The 37-page opinion answers a July 2026 request from an Education Department that has spent the past year moving its programs to other federal agencies.
Grants aimed only at raising diversity, reducing racial isolation or changing a school’s racial balance can’t be approved, the Justice Department said. “Only in exceptionally rare circumstances may funding decisions turn on a school’s racial composition,” said Assistant Attorney General T. Elliot Gaiser. Deputy Assistant Attorney General Joshua Craddock signed the opinion and said “Our Constitution is colorblind.” The opinion adds a new legal limit inside an agency that House Republicans want to break up.
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Why It Matters
Magnet schools are public schools built around a special curriculum, such as STEM or the arts. MSAP is the only federal program designed just for them, according to Magnet Schools of America. The program has awarded hundreds of millions of dollars since Congress created it in 1984, the opinion notes. Both chambers’ fiscal 2026 spending bills kept MSAP at $139 million, even as House Republicans pushed a 15% cut to the overall Education Department budget.
That money now comes with a much higher bar. In practice, a grant pitched around diversity or racial balance is off the table, while a grant tied to a documented civil rights violation could still win approval. For families, federal K-12 policy is moving two ways at once. Race-conscious magnet grants are narrowing, while the Education Freedom Tax Credit opens a donor-funded scholarship route in 2027.
What The Opinion Requires
| Grant Basis | Status | What The Opinion Says |
|---|---|---|
| Remedying Proven Illegal Discrimination | Allowed | Must target the groups harmed and have a logical end point. |
| Court-Ordered Desegregation Plans | Case By Case | 8 current grantees. Each award still has to be narrowly tailored. |
| Voluntary Desegregation Plans | Case By Case | 52 current grantees. No court finding, so the hardest test. |
| Increasing Racial Diversity | Not Allowed | Not a qualifying goal on its own. |
| Reducing Minority Group Isolation | Not Allowed | Treated as racial balancing by another name. |
| Changing A School’s Racial Balance | Not Allowed | Barred unless tied to a proven violation. |
- Current grants: The Office of Legal Counsel says it isn’t aware of any current grant that passes strict scrutiny. The opinion doesn’t say what happens to the 60 active awards.
- Court-ordered plans: As of the Education Department’s July request, eight grantees ran desegregation plans under a court order. Those grants could pass, but only if they target the groups harmed and have a logical end point.
- Voluntary plans: The other 52 grantees run voluntary plans with no court finding of discrimination. The opinion says these face the hardest test, and it may prove “difficult” for them to qualify today.
- Racial categories: The opinion calls the program’s four “minority group” categories overbroad. It compares them to the categories the Supreme Court rejected in its 2023 Harvard admissions case.
- Older rules: The Education Department dropped a 50% minority-enrollment definition of isolation in 2010, after a 2007 Supreme Court ruling. The opinion calls that a change in labels but not in substance.
- No end date: Grants last up to five years, but districts can reapply. The opinion says that leaves race-based funding with no clear end point.
What Families At Magnet Schools Should Watch
Magnet schools remain one of the most widespread forms of public school choice, which the administration put front and center this school year. The opinion says MSAP can continue within constitutional limits, and grant-funded districts don’t admit or deny students by race. What could change are the strategies MSAP money paid for, which the opinion describes:
- Siting and marketing: Districts placed schools based on likely racial effects and aimed recruiting at specific racial groups.
- Lotteries: Some districts ran admissions lotteries designed to hit a target racial mix.
- Teacher groups: Grant plans in some districts also set up race-based affinity groups for teachers.
- Napa Valley, California: Napa Valley Unified School District received $10,121,928 in 2017 and targeted recruiting by race across its feeder schools.
- Ypsilanti, Michigan: Ypsilanti Community Schools received $14,981,002 in 2023 to convert four schools into magnet schools, using marketing aimed at each school’s racial balance.
If your child attends or plans to apply to a magnet school, ask the district whether the program runs on an MSAP grant. Those grants pay for planning, promotion and building the capacity to keep a program running after federal money ends. A rewritten grant could change recruitment, lottery rules or how fast a program grows. Families weighing private school instead can use a 529 plan for K-12 tuition.
How This Connects
This is the second time in a year the Office of Legal Counsel has narrowed race-based Education Department grants. Its December 2025 opinion (PDF File) found several minority-serving institution programs unconstitutional, and the department halted or scaled back those grants.
The magnet school opinion carries that reasoning into K-12 schools, while the Education Department shifts K-12 program management to the Labor Department.
What’s Next
The Justice Department says it will work with the Education Department so future awards meet the new standard. Watch for revised grant rules, the next MSAP competition and any decision on the 60 active grants.
Funding is a separate fight, since the president’s fiscal 2027 budget proposes eliminating MSAP again. Congress will settle that number in its next round of Education Department budget fights.
Editor: Colin Graves
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