The Justice Department's Office of Legal Counsel issued an opinion on November 5 on how far the Education Department may consider race in running the Magnet Schools Assistance Program. The program gives competitive federal grants to school districts to promote voluntary desegregation and expand educational opportunities. The department said the opinion supports magnet schools while making sure federal aid is not tied to unconstitutional race-based criteria.

The opinion explains that the program's statute and regulations tie funding to race-based concepts such as minority-group isolation and use racial data to shape funding decisions, according to the Justice Department. Because of that, the opinion concludes the program must be judged under strict scrutiny, the Constitution's toughest standard. Under that standard, the Education Department may approve a grant only when an applicant shows its use of race is narrowly tailored to remedy a specific, identified instance of illegal discrimination.

The opinion makes clear that grants based solely on goals such as increasing racial diversity, reducing racial isolation or altering racial balance, untethered from remedying unlawful discrimination, cannot be approved, DOJ said. Assistant Attorney General T. Elliot Gaiser, who heads the Office of Legal Counsel, said government programs must treat people as individuals and not as members of racial groups. He said funding decisions may turn on a school's racial makeup only in exceptionally rare cases.

Deputy Assistant Attorney General Joshua Craddock, who signed the opinion, said the program can keep serving students if it is run constitutionally and that federal dollars must never be used for racial balancing. The Justice Department said it will work with the Education Department to make sure future awards comply with the Constitution while still supporting magnet schools.