Whether the Magnet School Assistance Program Violates the Constitution's Equal-Protection Guarantee

(Slip Opinion) Whether the Magnet School Assistance Program Violates the Constitution’s Equal-Protection Guarantee The Magnet School Assistance Program triggers strict scrutiny because it facially classifies by race and is motivated by the racially discriminatory purpose of changing the racial composition of K–12 schools. As currently implemented, the Magnet School Assistance Program fails strict scrutiny because it is not narrowly tailored to achieve the government’s sole compelling interest in remedying specific instances of illegal discrimination. The Department of Education may implement the Magnet School Assistance Program in a way that satisfies strict scrutiny by ensuring that grants (1) are issued only to schools that will use the funds to remedy specific instances of illegal discrimination, and (2) are narrowly tailored to that end. November 5, 2026 MEMORANDUM OPINION FOR THE ACTING GENERAL COUNSEL DEPARTMENT OF EDUCATION Congress has recognized the important role that magnet schools play in public education. Magnet schools offer a wide range of educational pro- grams, provide meaningful opportunities for school choice, and foster academic excellence and innovation within the public school system. See 20 U.S.C. § 7231(a)(3), (b)(2)–(6). Congress sought to support magnet schools through the Magnet School Assistance Program (“MSAP” or “program”), which authorizes the Secretary of Education to award local educational agencies with funds to support magnet-school programming. Id. § 7231b. The Secretary has awarded hundreds of millions of dollars under this program. Notwithstanding magnet schools’ important contributions to public ed- ucation, MSAP grants are not primarily focused on promoting academic excellence. Their purpose “is to assist in the desegregation of schools.” Id. The statutory and regulatory scheme thus requires the Secretary to priori- tize race when awarding funds. See id. §§ 7231b–7231c. The consequence is that the MSAP scheme does not allow the Secretary to allocate program funds to any public school based on educational need or school quality. Funds instead go to magnet schools based on their racial compositions for the purpose of changing their racial mix. See 34 C.F.R. §§ 280.2(b), 1  50 Op. O.L.C. __ (Nov. 5, 2026) 280.4(b). You have asked whether program grants violate the Constitu- tion’s equal-protection guarantee under recent Supreme Court precedent. See Memorandum for T. Elliott Gaiser, Assistant Attorney General, Office of Legal Counsel, from Candice Jackson, Acting General Counsel, Department of Education, Re: Request for OLC Opinion on the Constitu- tionality of the Magnet Schools Assistance Program (July 24, 2026) (“DOE Request”); Louisiana v. Callais, 146 S. Ct. 1131 (2026); Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141 (2023) (“SFFA”). In many applications, the answer is yes, the program violates equal- protection requirements. Congress reasonably chose to support magnet schools and their important function in the public education ecosystem. But the racialized framework through which Congress chose to fund magnet school programming places MSAP in unconstitutional terrain. As currently structured and administered, the program triggers strict scrutiny and, in most cases, cannot satisfy it. That does not mean the statute is unconstitutional in all applications; some MSAP grants could theoretically satisfy strict scrutiny’s exacting standards, although we are not aware of any specific grant that currently does so. The Department of Education must therefore adjust its grantmaking approach to ensure it conforms to the Constitution’s equal-protection requirements. This opinion proceeds in three parts. Part I describes the program’s legal and factual background. Part II explains why the program triggers— and largely fails—strict scrutiny. Part III sets forth how the Department must administer the program to conform it to constitutional requirements. I. A. A magnet school is a public K–12 educational institution “that offers a special curriculum capable of attracting substantial numbers of students of different racial backgrounds.” 20 U.S.C. § 7231a. Magnet schools origi- nated in the United States to desegregate public schools. See Julian R. Betts & Chenzi Cao, Magnet School Outcomes, in Handbook of Research on School Choice at 273 (Mark Berends et al. eds., 2d ed. 2019) (“Magnet School Handbook”). “The idea was to create public schools with a distinct curricular or pedagogical focus and to allow any student in the district to 2  Whether the Magnet School Assistance Program Violates Equal Protection attend.” Id. Magnet schools are frequently placed “in lower-income areas of a district to draw higher-income students of different races or ethnici- ties from other parts of the district.” Id. But they are sometimes placed “in relatively affluent neighborhoods with the same strategy in mind.” Id. Today, magnet schools are “one of the most widespread forms of public school choice.” Ellen B. Goldring & Walker A. Swain, Perspectives on Magnet Schools, in Magnet School Handbook at 241 (“Goldring & Swain”). 1. The first magnet school was formed in the 1960s. Id. With federal fund- ing, such schools became widespread in the 1970s and 1980s as part of court-ordered or agency-approved desegregation plans. See Ryan Pfleger & Gary Orfield, C.R. Project, Segregated Choices: Magnet and Charter Schools at 5–9 (2024), https://perma.cc/T44Z-ZY5E; Claire Smrekar, The Social Context of Magnet School Programs, in Magnet School Handbook at 259. In 1972, Congress enacted the Emergency School Aid Act (“ESAA”), which authorized the Secretary to award grants to educational agencies implementing a court-ordered desegregation plan or a plan “approved by the Secretary as adequate under title VI of the Civil Rights Act of 1964 for the desegregation of minority group segregated children or faculty.” Pub. L. No. 92-318, § 706(a)(1)(A), 86 Stat. 235, 356. Con- gress identified three purposes for providing this financial assistance. First, “to meet the special needs incident to the elimination of minority group segregation and discrimination among students and faculty” in K–12 education. Id. § 702(b)(1), 86 Stat. at 354. Second, “to encourage the voluntary elimination, reduction, or prevention of minority group isolation in elementary and secondary schools with substantial proportions of minority group students.” Id. § 702(b)(2), 86 Stat. at 354. Third, “to aid school children in overcoming the educational disadvantages of minority group isolation.” Id. § 702(b)(3), 86 Stat. at 354. ESAA eventually lapsed, but in 1984, Congress enacted a magnet- schools assistance program that endured. See Education for Economic Security Act, Pub. L. No. 98-377, §§ 701–712, 98 Stat. 1267, 1299–302 (“EESA”). Ever since then, the Department has administered a program that “offer[s] multiple-year grants to school districts through a competi- 3  50 Op. O.L.C. __ (Nov. 5, 2026) tive process.” U.S. Dep’t of Educ., Evaluation of the Magnet Schools Assistance Program, 1998 Grantees: Final Report at 22 (2003), https:// perma.cc/DB4J-LCZY. The 1984 law retained two of ESAA’s original purposes and added two more: (1) “to enable [educational] agencies to establish and operate magnet schools,” and (2) “to encourage the devel- opment of courses of instruction within magnet schools that will substan- tially strengthen the knowledge of academic subjects and the grasp of tangible and marketable vocational skills of students attending such schools.” EESA § 703(1), (4), 98 Stat. at 1299. Many of its provisions track the statutory language today, including its definitions, its authoriza- tion provision, and certain application requirements. See infra Part I.B. Over the intervening years, the MSAP statute has undergone several amendments and recodifications. We need not summarize them here beyond emphasizing a few points related to the statutory purposes and findings. In 1985, Congress narrowed the program’s purposes down to two: the first relating to countering minority-group isolation and the second aimed at strengthening academic achievement in magnet schools. See National Science Foundation Authorization Act for Fiscal Year 1986, Pub. L. No. 99-159, sec. 262, § 703, 99 Stat. 887, 901. These two purposes continued to undergird the program after Congress reenacted MSAP in 1988. See Augustus F. Hawkins-Robert T. Stafford Elementary and Sec- ondary School Improvement Amendments of 1988, Pub. L. No. 100-297, sec. 1001, § 3003, 102 Stat. 130, 231. Congress later amended and recodi- fied MSAP as part of the Improving America’s Schools Act of 1994, Pub. L. No. 103-382, sec. 101, §§ 5101–5113, 108 Stat. 3518, 3690–95. Those revisions included five legislative findings regarding magnet schools’ educational and desegregation benefits. Id. § 5101, 108 Stat. at 3690–91. Congress also reframed the statutory purpose as “assist[ing] in the deseg- regation of schools . . . by providing financial assistance” for, among other things, countering “minority group isolation” and developing “inno- vative educational methods and practices.” Id. § 5102, 108 Stat. at 3691. This statutory purpose and the enacted findings largely persist today, albeit with some substantive changes. See, e.g., No Child Left Behind Act of 2001, Pub. L. No. 107-110, sec. 501, §§ 5301–5311, 115 Stat. 1425, 1806–11 (2002) (amending and recodifying the program); Every Student Succeeds Act, Pub. L. No. 114-95, sec. 2, § 4401, 129 Stat. 1802, 2014– 16 (2015) (amending and reauthorizing the program). 4  Whether the Magnet School Assistance Program Violates Equal Protection 2. The program’s dual focus on racial desegregation and educational qual- ity reflects more than a half-century of history. Magnet schools’ original “purpose . . . was reducing racial isolation.” Goldring & Swain at 242. But “[o]ver time, magnet schools have evolved, with their original focus on racial integration shifting toward an emphasis on academic achieve- ment, specialized educational offerings, and school choice.” Sinclair Nicholas, Magnet Schools, EBSCO (2019), https://perma.cc/5XU7- 5BUV. Two changes in the legal landscape contributed to this trend: (1) active judicial desegregation orders decreased, and (2) judicial decisions restrict- ing the use of race-based decisions in education increased. See Goldring & Swain at 250–52. Courts have historically imposed desegregation decrees, with judicial supervision to ensure compliance, on school dis- tricts that engaged in illegal racial discrimination. “A large number of school district desegregation cases have remained under court supervision for very long periods of time, some for decades.” Ronna Greff Schneider, Education Law: First Amendment, Due Process, & Discrimination § 5:10 (2026 ed.). But such “a school system must be declared unitary when it no longer discriminates between children on the basis of race.” Belk v. Charlotte-Mecklengburg Bd. of Educ., 269 F.3d 305, 318 (4th Cir. 2001). To decide whether a school has achieved unitary status, a court’s “ultimate inquiry is whether the constitutional violator has complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination have been eliminated to the extent practi- cable.” Missouri v. Jenkins, 515 U.S. 70, 89 (1995) (cleaned up). Schools are achieving unitary status at “a rapid pace.” Goldring & Swain at 250. And once a school achieves unitary status, it can no longer use its past discrimination to justify remedial race-based discrimination going forward. At that point, “[a]ny continued use of race must be justi- fied on some other basis.” Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 721 (2007). For example, in Cavalier ex rel. Cavalier v. Caddo Parish School Board, a school district sought to justify racial classifications under a 1981 consent decree that required the district to desegregate. 403 F.3d 246, 249–50 (5th Cir. 2005). But the Fifth Cir- cuit rejected that argument, explaining that the decree was “no longer applicable to” the magnet school because it had achieved “unitary status,” and thus the decree could not “be used in any sense to justify the racial 5  50 Op. O.L.C. __ (Nov. 5, 2026) quotas and balancing contained in the [school’s] admission policy.” Id. at 255–56 & n.11. Two years later, the Supreme Court emphasized the limits of race- based decisionmaking in education by concluding that two school districts not subject to desegregation orders violated the Equal Protection Clause by using race to assign individual students to schools with the goal of achieving a predetermined “racial balance.” Parents Involved, 551 U.S. at 710–11. Although the justices issued fractured opinions on several ques- tions, a majority agreed that the schools’ admissions schemes were racial classifications that triggered and failed strict scrutiny because they were not narrowly tailored. Id. at 720, 735. The racial classifications were not “necessary to achieve [the school districts’] stated ends” because they had only “minimal effect . . . on student assignments.” Id. at 733. And the districts “failed to show that they considered methods other than explicit racial classifications to achieve their stated goals.” Id. at 735. Chief Justice Roberts—joined by Justices Scalia, Thomas, and Alito— would have also held that “racial balancing” is not a compelling state interest under strict scrutiny. Id. at 730 (plurality opinion). Presaging the Court’s SFFA decision that would come a decade and a half later, the plurality explained that “[a]llowing racial balancing as a compelling end in itself would effectively assure that race will always be relevant in American life, and that the ultimate goal of eliminating entirely from governmental decisionmaking such irrelevant factors as a human being’s race will never be achieved.” Id. (cleaned up). The plurality further reject- ed clever wordsmithing to justify racial balancing in different terms: “Racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it . . . racial diversity, avoidance of racial isolation, [or] racial integration . . . .” Id. at 732. Justice Kennedy’s concurrence, by contrast, argued that districts may “consider the racial makeup of schools and . . . adopt general policies to encourage a diverse student body” but may not assign students to schools based on racial classification. Id. at 788–91 (Kennedy, J., concurring in part and concurring in the judgment) (citing Grutter v. Bollinger, 539 U.S. 306 (2003)). Parents Involved prompted school districts “to rethink the whole notion of how magnet schools can attract students of various ethnic and racial backgrounds under unitary status and voluntary integration without spe- cifically using race.” Goldring & Swain at 252. Taking their cue from Justice Kennedy’s concurring opinion, many school districts replaced 6  Whether the Magnet School Assistance Program Violates Equal Protection admissions policies directly keyed to race with more indirect, race- conscious policies to achieve their desired racial balance. For example, one of the school districts in Parents Involved shifted to “a residential cluster-based, controlled-choice model, where the parents rank preferred magnet school selections and then the district assigns students to [e]nsure diverse representation of neighborhood socioeconomic characteristics— including racial concentrations.” Id. Sixteen years after Parents Involved, the SFFA Court invalidated two universities’ race-based admissions programs. Chief Justice Roberts, this time writing for a full majority, explained that the Court had previously “permitted race-based admissions only within the confines of narrow restrictions,” including the requirement that such racial considerations have a definitive endpoint. 143 S. Ct. at 2166. The universities’ diversity- based goals were not compelling interests because they were “not suffi- ciently coherent for purposes of strict scrutiny.” Id. The admissions pro- grams were not narrowly tailored because they relied upon “opaque racial categories,” the use of which “undermine[d]” the universities’ goals rather than “promote[d]” them. Id. at 2168. The admissions programs also violated the fundamental equal-protection principle that race must “never be used as a ‘negative’” or “operate as a stereotype.” Id. And they lacked “a logical end point.” Id. at 2165 (citation omitted). Most recently, the Callais Court reiterated SFFA’s central thesis in the Voting Rights Act context. The Supreme Court explained that “[d]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Callais, 146 S. Ct. at 1153 (quoting SFFA, 143 S. Ct. at 2162). For that reason, the Court “start[s] with the general rule that the Constitution almost never permits the Federal Government or a State to discriminate on the basis of race.” Id. at 1152. B. The Department currently oversees 60 active MSAP grants awarded to school districts in 18 different states. DOE Request at 8. These grants were awarded pursuant to a detailed statutory and regulatory scheme, which we summarize in three parts: Congress’s enacted findings and purposes, relevant definitions, and program requirements. See generally 20 U.S.C. §§ 7231–7231j; 34 C.F.R. §§ 280.1–280.41. 7  50 Op. O.L.C. __ (Nov. 5, 2026) 1. As explained in Part I.A.1, the program’s overarching purpose remains “to assist in the desegregation of schools” by funding local educational agencies to achieve the program’s stated objectives. 20 U.S.C. § 7231(b). These objectives include “the elimination, reduction, or prevention of minority group isolation in elementary schools and secondary schools with substantial proportions of minority students.” Id. § 7231(b)(1). They also include “the development, design, and expansion of innovative edu- cational methods and practices that promote diversity.” Id. § 7231(b)(3). Several legislative findings reinforce these race-based objectives. The statute explains that magnet schools are “a significant part” of the gov- ernment’s “effort to achieve voluntary desegregation in our Nation’s schools.” Id. § 7231(a)(1). It notes that more than 69 percent of the then- 2,500,000 students attending magnet schools were “non-white.” Id. § 7231(a)(2). And it repeatedly refers to race when describing the federal government’s efforts “to foster meaningful interaction among students of different racial and ethnic backgrounds,” id. § 7231(a)(4)(A); to prepare students to function in an “economy comprised of people from many different racial and ethnic backgrounds,” id. § 7231(a)(4)(B); and to “continue to desegregate and diversify schools . . . , recognizing that segregation exists between minority and nonminority students as well as among students of different minority groups,” id. § 7231(a)(4)(C). 2. Congress defined only a single term in the statutory scheme—magnet school. A magnet school is a K–12 school “that offers a special curricu- lum capable of attracting substantial numbers of students of different racial backgrounds.” Id. § 7231a. Congress did not explain what it would mean for a curriculum to be “capable of attracting” different racial groups. But the regulations define “[s]pecial curriculum” as “a course of study embracing subject matter or a teaching methodology that is not generally offered to students of the same age or grade level in the same [educational agency] as the students to whom the special curriculum is offered in the magnet schools.” 34 C.F.R. § 280.4(b). The regulations define several other key terms, too. “Minority group” means one of four racial groups: (1) American Indian or Alaskan Native, 8  Whether the Magnet School Assistance Program Violates Equal Protection (2) Asian or Pacific Islander, (3) Black (not of Hispanic origin), and (4) Hispanic. Id. “Desegregation” refers to “[1] a plan for the reassign- ment of children or faculty to remedy the illegal separation of minority group children or faculty in the schools of an [education agency] or [2] a plan for the reduction, elimination, or prevention of minority group isola- tion in one or more of the schools of an [education agency].” Id. And “[f ]eeder school” means “a school from which students are drawn to attend a magnet school.” Id. 3. Five provisions comprise the core program framework: an authorization provision, an eligibility provision, an applications-and-requirements provision, a prioritization provision, and a use-of-funds provision. 20 U.S.C. §§ 7231b–7231f. The authorization and eligibility provisions determine who can receive grants. The others determine how the Secre- tary awards grants and how recipients can use funds. We describe them each in turn. First, the authorization and eligibility provisions together demarcate what kinds of educational entities may receive grants—and, by implica- tion, which entities are ineligible. See id. §§ 7231b–7231c. Congress authorized the Secretary to award grants to “eligible” educational agen- cies that are “(1) part of an approved desegregation plan; and (2) designed to bring students from different social, economic, ethnic, and racial back- grounds together.” Id. § 7231b. Educational agencies are “eligible” to receive grants in only two circumstances: if they are (1) “implementing a [desegregation] plan undertaken pursuant to a final order issued by a court” or other “official,” or (2) voluntarily implementing (or intend to implement) “a plan that has been approved by the Secretary as adequate under title VI of the Civil Rights Act of 1964 for the desegregation of minority-group-segregated children or faculty in such schools.” Id. § 7231c (citation omitted); see also 42 U.S.C. § 2000d et seq. For her part, “[t]he Secretary approves a voluntary plan . . . only if [s]he deter- mines that for each magnet school for which funding is sought, the mag- net school will reduce, eliminate, or prevent minority group isolation within the period of the grant award, either in the magnet school or in a feeder school, as appropriate.” 34 C.F.R. § 280.2(b). Based on available information at the time of your request, we under- stand that most grant recipients are implementing voluntary, not court- 9  50 Op. O.L.C. __ (Nov. 5, 2026) ordered, desegregation plans. DOE Request at 9. Specifically, at the time of your request, 52 grantees were implementing voluntary plans, while only 8 grantees were implementing court-ordered plans. Id. at 8–9. But there are many educational agencies subject to court-ordered desegrega- tion plans that have not applied for, and thus do not currently receive, MSAP grants. Id. Second, the statute requires each application to include “information and assurances.” 20 U.S.C. § 7231d(a). The information component includes both race-related and non-race-related information. For example, applicants must explain how the magnet school will achieve the non-race- based goal of “increas[ing] student academic achievement.” Id. § 7231d(b)(1)(B). But applicants must also describe how grant funds “will be used to promote desegregation, including any available evidence . . . for how the proposed magnet school programs will increase interaction among students of different social, economic, ethnic, and racial back- grounds.” Id. § 7231d(b)(1)(A). The regulations require additional information from applicants. For ex- ample, a school “that does not have an approved desegregation plan” must submit its application with “[e]vidence that the plan is a desegregation plan as defined in § 280.4(b),” 34 C.F.R. § 280.20(f ), which to reiterate, means “a plan for the reassignment of children or faculty” or “for the reduction, elimination, or prevention of minority group isolation,” id. § 280.4(b). And applications for existing magnet schools must include “[e]nrollment numbers and percentages, for minority and non-minority group students, for each magnet school for which funding is sought and each feeder school.” Id. § 280.20(f )(4)(i). These applicants must also provide “[d]istrictwide enrollment numbers and percentages for minority group students” in the relevant schools. Id. § 280.20(f )(4)(ii). Applicants must also provide specific assurances. See 20 U.S.C. § 7231d(b)(2). As relevant here, the requisite assurances include a com- mitment to “use grant funds . . . for the [statutorily defined] purposes.” Id. § 7231d(b)(2)(A). And applicants must commit to “not engage in discrim- ination based on race, religion, color, national origin, sex, or disability in” three defined areas: (i) the hiring, promotion, or assignment of employees of the ap- plicant or other personnel for whom the applicant has any administrative responsibility; 10  Whether the Magnet School Assistance Program Violates Equal Protection (ii) the assignment of students to schools, or to courses of instruc- tion within the schools, of such applicant, except to carry out the approved plan; and (iii) designing or operating extracurricular activities for students. Id. § 7231d(b)(2)(C) (emphasis added). The regulations explain that the Secretary evaluates applications using a point system. See 34 C.F.R. § 280.30(e)–(f ). The Secretary’s selection criteria include “[t]he effectiveness of [the applicant’s] plan to recruit students from different social, economic, ethnic, and racial backgrounds into the magnet schools.” Id. § 280.31(a)(2)(v). The criteria also include the extent to which each magnet school seeking funding will “[i]mprove the racial balance of students in the applicant’s schools by reducing, eliminating, or preventing minority group isolation in its schools.” Id. § 280.31(c)(2)(v). Additionally, the Secretary determines the extent to which an applicant’s evaluation plan “[w]ill determine how successful the project is in meeting its intended outcomes, including its goals for deseg- regating its students.” Id. § 280.31(e)(2). Third, the statute imposes prioritization requirements on grant awards. See 20 U.S.C. § 7231e. The Secretary must prioritize applicants that satisfy four criteria, including “the greatest need for assistance,” alongside various program-specific factors. Id. § 7231e(1); see also 34 C.F.R. § 280.32 (regulations outlining the prioritization structure). As relevant here, two factors invoke race. One requires the Secretary to favor pro- posals that “replicate an existing magnet school program that has a demonstrated record of success in . . . reducing isolation of minority groups.” 20 U.S.C. § 7231e(2)(C). The other focuses on applicants that “propose to increase racial integration by taking into account socioeco- nomic diversity in designing and implementing magnet school programs.” Id. § 7231e(4). Finally, the use-of-funds provision identifies nine areas in which edu- cational agencies may spend grant funds. See id. § 7231f. These include “planning and promotional activities directly related to the development, expansion, continuation, or enhancement of academic programs and services offered at magnet schools,” id. § 7231f(a)(1); building “capacity to operate magnet school programs once the grant period has ended,” id. § 7231f(a)(5); giving educational agencies “flexibility in designing mag- net schools for students in all grades,” id. § 7231f(a)(7); and “strength- en[ing] inter-district and regional magnet programs,” id. § 7231f(a)(8). 11  50 Op. O.L.C. __ (Nov. 5, 2026) C. Consistent with the framework described in Part I.B, the Department has historically awarded funds to applicants that promise to change their schools’ racial balances. See generally U.S. Dep’t of Educ., Magnet Schools Assistance Program (MSAP) (July 1, 2026), https://perma.cc/ 3JYU-3AQE (“MSAP Awards”). The school districts’ racial balancing strategies vary, but they do not extend to admitting or denying students admittance into a particular school based upon their race. See DOE Request at 9. Strategies instead include placing magnet schools or pro- grams in certain geographic areas based on likely racial effects, marketing and advertising to certain racial groups, using lottery systems designed to achieve a desired racial balance, and establishing “race-based affinity groups” for teachers. Id. To illustrate how the plans work, we summarize here two representative awards. First, in 2017, the Department awarded $10,121,928 to Napa Valley Unified School District (“NVUSD”) to address minority-group isolation in two existing schools and to create a new magnet school. See MSAP Awards. NVUSD’s application defined minority-group isolation as “any minority group of students attending a District elementary school in substantial numbers that represent 58% or more of the District total ele- mentary enrollment.” U.S. Dep’t of Educ., Application for Grants: U165A170039 at 1 (2017), https://perma.cc/64WQ-KXWH (emphasis omitted). Based on that definition, “Hispanic/Latino students” were “the only isolated minority group in the District.” Id. (emphasis omitted). NVUSD set a goal of reducing supposed Hispanic/Latino isolation by “at least 2 percentage points per year.” Id. at 21 (emphasis omitted). Its plan emphasized targeted marketing, classroom groupings, and data- driven reporting. For one magnet school, NVUSD would expand the school and then “target recruiting to Hispanic/Latino . . . students” at two feeder schools. Id. at 20–21 (emphasis omitted). At the other magnet school, NVUSD would introduce a STEM program and then “market and target recruit non-Hispanic White [students] . . . from all NVUSD feeder elementary schools.” Id. at 21 (emphasis omitted). It would likewise recruit “non-Hispanic White” students for the new magnet school. Id. (emphasis omitted). Within the schools, NVUSD explained that it would group students to “support student population compositions of heteroge- neous grouping in every classroom that yield the same school wide stu- dent demographics.” Id. at 38–39 (emphasis omitted). And to ensure 12  Whether the Magnet School Assistance Program Violates Equal Protection NVUSD achieved its target racial mix, it committed to comparing its “applicant pool and student placement data (all disaggregated by race/ethnicity)” with previous years’ data “to determine why performance measures were or were not attained and if previous recommendations were implemented.” Id. at 131. Second, in 2023, the Department awarded $14,981,002 to Ypsilanti Community Schools (“YCS”) to convert four existing schools into magnet schools. See MSAP Awards. YCS’s application defined “Black student isolation” as occurring “if Black student enrollment in the school deviates + / - 15% or more from the percent of Black residents living in the YCS school district per U.S. Census data.” U.S. Dep’t of Educ., Application for Grants: S165A230031 at 2 (2023), https://perma.cc/MQ45-EQ3V. Using that definition, YCS identified “Black student isolation” in each of the four schools. Id. at 1–2. YCS also proposed “[t]argeted marketing and recruitment efforts” to achieve its desired “racial balances” at the magnet schools. Id. at 36. And it committed “grant personnel and school adminis- trators” to “offer[ing] ongoing presentations in racially diverse communi- ties []to decrease Black student isolation in racially-identifiable magnet schools.” Id. at 31. II. “[T]he Constitution almost never permits the Federal Government or a State to discriminate on the basis of race.” Callais, 146 S. Ct. at 1152. 1 For that reason, “the strict scrutiny standard of review applies whenever the federal government voluntarily adopts a racial or ethnic classification as a basis for decisionmaking.” Constitutionality of Race-Based Depart- ment of Education Programs, 49 Op. O.L.C. __, at *3–4 (Dec. 2, 2025) (“Race-Based Education Programs”) (citation omitted). Strict scrutiny also applies “if race played a role in a decision made by a government actor.” Callais, 146 S. Ct. at 1146 (citing Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66 (1977)). 1 The Supreme Court has recognized an equal-protection component of the Constitu- tion that binds the federal government. See Bolling v. Sharpe, 347 U.S. 497, 499–500 (1954) (rooting the principle in the Due Process Clause of the Fifth Amendment); United States v. Vaello Madero, 142 S. Ct. 1539, 1544 (2022) (Thomas, J., concurring) (finding “[f ]irmer ground . . . in the Fourteenth Amendment’s Citizenship Clause”). 13  50 Op. O.L.C. __ (Nov. 5, 2026) We thus begin by considering whether the program triggers strict scru- tiny because it is race-based, and we conclude that it does. The program here is race-based because it (1) facially classifies by race and (2) is designed to change the racial composition of K–12 schools. At bottom, the current program largely functions as a racial-balancing initiative. Then, we consider counterarguments against applying strict scrutiny and find them unpersuasive. Finally, we apply strict scrutiny and consider whether the Department’s administration of the program is narrowly tailored to achieve a compelling governmental interest. See Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 235 (1995). We conclude that the program, as currently administered, fails strict scrutiny. But we recog- nize that grants awarded to remedy specific instances of illegal discrimi- nation might satisfy strict scrutiny. A. The Supreme Court “reconcile[s] the principle of equal protection with the reality of legislative classification” by distinguishing the mine-run of laws from those that burden a fundamental right or target a suspect class. United States v. Skrmetti, 145 S. Ct. 1816, 1828 (2025). Every legislative classification must, at a minimum, “bear[] a rational relation to some legitimate end.” Id. at 1828 (citation omitted). But some classifications trigger heightened review. Id. As relevant here, “laws that classify on the basis of race, alienage, or national origin trigger strict scrutiny and will pass constitutional muster ‘only if they are suitably tailored to serve a compelling state interest.’” Id. (citation omitted). “Race is the paradigm. A racial classification, regardless of purported motivation, is presumptive- ly invalid and can be upheld only upon an extraordinary justification.” Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 272 (1979). That is true regardless of whether it is a “federal, state, or local governmental actor” classifying by race. Adarand, 515 U.S. at 227. Race-based classifications come in many flavors, but strict scrutiny applies to glaring and subtle classifications alike. So the government cannot “circumvent” the equal-protection guarantee “by writing in ab- stract terms.” Skrmetti, 145 S. Ct. at 1831. And “[r]acial balancing” does not become something else when it is relabeled as “racial diversity, avoidance of racial isolation, [or] racial integration.” Parents Involved, 551 U.S. at 732 (plurality opinion). Put another way, race-based classifi- cations find no refuge in artful drafting. 14  Whether the Magnet School Assistance Program Violates Equal Protection The program facially classifies by race and thus triggers strict scrutiny. On its terms, the MSAP scheme requires the Secretary to distribute funds to school districts because of those schools’ racial compositions and with the aim of changing their racial balances. See supra Part I.B. In other words, the program is facially designed to reengineer the racial composi- tion of schools, either to remedy past illegal discrimination or to achieve a predetermined racial balance for its own sake. It must accordingly satisfy strict scrutiny. Start with the regulations. Like their parent statute, the regulations make two types of educational entities eligible for grants: (1) those im- plementing a court-ordered desegregation plan, and (2) those voluntarily implementing a desegregation plan “that has been approved by the Secre- tary.” 34 C.F.R. § 280.2(a). The Secretary will approve a voluntary plan “only if [s]he determines that for each magnet school for which funding is sought, the magnet school will reduce, eliminate, or prevent minority group isolation within the period of the grant award, either in the magnet school or in a feeder school.” Id. § 280.2(b). These regulations require the Secretary to allocate funds based upon the racial compositions of recipient schools, which necessarily entails the use of racial classifications that trigger strict scrutiny. Were there any doubt, the definitions put it to rest. Recall that the regu- lations define “[d]esegregation” to mean “a plan for the reassignment of children or faculty to remedy the illegal separation of minority group children or faculty in the schools of an [education agency],” or “a plan for the reduction, elimination, or prevention of minority group isolation in one or more of the schools.” Id. § 280.4(b) (emphases added). Both types of “desegregation” use the term “minority group,” which the regulations define as one of four racial or ethnic groups. Id. And those groups are further defined to turn on detailed racial, ethnic, or national-origin charac- teristics. For example, the regulations define “Black” as someone with “origins in any of the black racial groups of Africa.” Id. (emphasis added). “Asian or Pacific Islander” refers to a person with “origins in any of the original peoples of the Far East, Southeast Asia, the Indian subcontinent, or the Pacific Islands.” Id. “Hispanic” describes “[a] person of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish culture or origin, regardless of race.” Id. And “American Indian or Alaskan Native” means a person with “origins in any of the original peoples of 15  50 Op. O.L.C. __ (Nov. 5, 2026) North America, and who maintains cultural identification through tribal affiliation or community recognition.” Id. At bottom, the regulations facially require the Secretary to award funds based upon schools’ racial compositions to affect their racial balances. To be sure, the reason an applicant is seeking to change the racial composi- tion of its student body