In the wake of a Dec. 2, 2025, analysis by the U.S. Department of Justice (DOJ) of race-based programs awarded by the U.S. Department of Education (ED), educational institutions receiving or administering federal education funds should prepare for program changes and assess other similar programs, including those not administered by the ED. The DOJ concluded that most of these programs violate the Fifth Amendment’s equal protection guarantee.
The DOJ’s analysis reaffirms that the use of race by the federal government triggers strict scrutiny. This standard requires that any racial classification further a compelling governmental interest and be narrowly tailored to achieve that interest. Since the U.S. Supreme Court’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023) (SFFA), the DOJ asserts that the only compelling interest that can satisfy strict scrutiny for race-based government action is the remediation of specific, identified and legally cognizable past discrimination — and only when the decisionmaker makes particularized evidentiary findings at the time of enactment. The DOJ explained that generalized disparities, statistical underrepresentation, or broad appeals to diversity or “societal discrimination” do not suffice.
The DOJ said race-based programs are distinguishable from constitutionally permissible preferences tied to affiliation with federally recognized tribes because these preferences advance the federal government’s unique, government-to-government relationship with tribes. These preferences constitute a political classification subject to rational basis review and thus are distinct from impermissible classifications based on Indian or Native ancestry or blood quantum. Where no federally recognized political entity exists (e.g., Native Hawaiians), racial definitions trigger strict scrutiny.
Unconstitutional and Inseverable Programs
The DOJ found certain ED programs to be unconstitutional because they distribute benefits based on racial or ethnic composition, rely on overbroad categories, lack specific remedial findings and operate as quotas. The DOJ found that the race-based features are inseverable, rendering the following programs invalid in their entirety:
- Hispanic-Serving Institutions’ (HSI) STEM programs and HSI programs that promote postbaccalaureate opportunities for Hispanic Americans.
- Alaska Native and Native Hawaiian-Serving institutions that turn on ancestry and blood quantum and are not tied to uniquely Indian interests.
- Native American-Serving Nontribal institutions defined by ethnicity rather than tribal affiliation and that do not advance uniquely Indian interests.
- Asian American and Native American Pacific Islander-serving institutions that use national origin or racial categories and quota thresholds.
- Predominantly Black Institutions’[1] formula grant program (not the competitive program) that turns on minimum Black enrollment and lacks specific remedial findings.
- Native Hawaiian Career and Technical Education that relies on Native Hawaiian ancestry definitions.
The DOJ concluded that appropriations for these programs may be repurposed or reprogrammed when appropriate.
Programs to Continue on a Race-Neutral Basis
The DOJ indicated several programs can persist if administered without any racial or ethnic classifications and with appropriate, race-neutral criteria:
- Minority Science and Engineering Improvement programs can sever race-based elements and continue for authorized, race-neutral uses such as faculty development, curriculum, facilities sharing and seminars.
- Predominantly Black Institutions’ competitive grant program can sever race-based elements and continue for race-neutral purposes (e.g., STEM, health, teacher preparation).
- The Ronald E. McNair Postbaccalaureate Achievement program can sever statutory references to Alaska Natives, Native Hawaiians and Native American Pacific Islanders. ED may serve groups underrepresented in graduate education using race-neutral factors, but existing regulations relying on racial and ethnic categories must be revised.
- Student Support Services are facially race-neutral and may continue, but agencies should ensure implementation does not use race directly or via proxies.
FAFSA Data Access Limitation Deemed Unconstitutional
Beyond grant programs, the DOJ also stated that the provision of the Higher Education Act that limits direct access to data from the Free Application for Federal Student Aid (FAFSA) to two scholarship organizations is unconstitutional. The DOJ determined the scholarship programs are race-based, under-inclusive, and lack a durational limit and consideration of race-neutral alternatives. Although the DOJ asserts that it is “unclear” whether this provision would be analyzed under strict scrutiny or rational basis review, it goes on to state that it sees no compelling reason that would justify this limited access to FAFSA data if analyzed under strict scrutiny.
For questions about these developments or assistance in navigating the changes in the education landscape, contact a member of the firm’s Education Industry Team.
[1] The DOJ did not find Historically Black Colleges and Universities to be unconstitutional.