Aaron Sibarium, a reporter at Free Beacon, wrote in a series of quotes that the DOJ will not defend the race-based parts of the Higher Education Act of 1965. Specifically, it decided against defending the $350 million grant sent to Hispanic-Serving Institutions. They are likely unconstitutional and have been since 1965.
“The Department of Education reserves hundreds of millions of dollars in grants for Hispanic-Serving Institutions (HSIs)—universities where at least 25 percent of undergraduates are Hispanic or Latino—that non-HSIs can’t access.
In June, the state of Tennessee and Students for Fair Admissions sued the program, which was established by Congress in 1965, saying it was unconstitutional to condition grants on a school’s racial makeup.
When an act of Congress is challenged, the Justice Department typically defends it in federal court. But this month, the department notified House Speaker Mike Johnson (R., La.) that it would not be going to bat for the HSI program.
I write to advise you that the Department of Justice has decided not to defend the constitutionality of certain provisions of the Higher Education Act of 1965,” Solicitor General D. John Sauer wrote in a letter reviewed exclusively by the Free Beacon.
“The Department of Justice has determined that those provisions violate the equal-protection component of the Fifth Amendment’s Due Process Clause.”
The letter likely spells the end for the HSI grants, which the Trump administration is now taking steps to wind down. A senior official in the Education Department told the Free Beacon the agency is evaluating its HSI grant programs to “determine the legal path forward.”
While the Justice Department letter only applies to HSIs, it signals how the Trump administration could gut other congressionally established programs that dole out grants based on an institution’s racial makeup.
Last year, for example, the Education Department awarded more than $12.5 million through its Predominantly Black Institutions (PBI) Competitive Program, which is only open to schools with at least 40-percent black enrollment.
Congress wouldn’t need to repeal those programs in order for the Trump administration to shut them down. The Justice Department could simply take the plaintiff’s side each time a program is sued, letting legal inertia run its course.
The administration would still defend programs for Historically Black Colleges and Universities (HBCUs), the senior Education Department official said, noting that a school’s HBCU status does not depend on its present racial mix.
“The quota-based eligibility formula for HSI programs distinguishes them from HBCUs,” the official said. “HBCUs do not present the same constitutional concerns as HSIs because of the historical role HBCUs played in educating Black Americans in the post-civil war era.”
