DOJ Concludes that MSI Programs are Illegal

The Department of Justice(DOJ) released a memorandum concluding that minority-serving institutions (MSIs) authorized under the Higher Education Act are “plainly unconstitutional” in light of the Supreme Court’s ruling in Students for Fair Admissions v. Harvard. As a result of this determination, the Department of Education is likely to renew its effort to halt funding for these programs.

Specifically, the memo determined that programs for Hispanic-Serving Institutions (HSI), Alaskan Native and Native Hawaiian-Serving Institutions, Native American-Serving Non-Tribal Institutions, Asian American and Native American Pacific Islander-Serving Institutions, Native Hawaiian Career and Technical Education, and Predominantly Black Institutions contain unlawful racial quota because eligibility is conditioned on maintaining a specific percentage of student enrollment based on race.

The DOJ memo also concluded that certain provisions in two TRIO programs, Ronald E. McNair Postbaccalaureate Achievement Program and Student Support Services, constitute unconstitutional racial classifications but found that other provisions authorizing support for low-income, first-generation students or for students from groups traditionally underrepresented in higher education pass constitutional muster. As a result, the agency determined that the Department of Education may continue to administer the programs, so long as it is done in a race-neutral manner.

Finally, the DOJ memo evaluated two private programs – the United Negro College Fund and the Hispanic Scholarship Fund – that rely on exclusive access to FAFSA data in order to provide scholarships to students based on race. Given that other scholarship providers are prohibited from accessing this data, the agency concluded that the statutory provision authorizing this access is unconstitutional.

In addition to the DOJ memo, HSIs are currently confronting a lawsuit challenging their constitutionality.

For more information, please contact:
Jody Feder