UPDATE: MSI Developments in the Courts, the Administration, and the Congress

As 2025 comes to a close, we’re happy to report that policymakers are confronting the fundamental Constitutional problems with how Congress structured the Minority Serving Institutions programs.

We’ve spent years working to draw focus to these problems–you can see examples here and here, even jointly proposing with Manhattan Institute model legislation to abolish the programs and shift their funding into Constitutional alternatives.

Now, all three branches are engaged with the issue.

The Courts

Tennessee filed a challenge to the largest and oldest set of MSI programs. We joined on behalf of NAS and FASORP. While the Solicitor General of the United States announced that DOJ would not defend the programs, another organization intervened to defend them. The case remains pending at this time. 

The Executive

With that litigation under way, the U.S. Department of Education exercised its discretion (everywhere it has such discretion) to decline to issue any more discriminatory grants, while continuing to fund the grants it understands Congress to have made mandatory.
ED simultaneously asked DOJ’s Office of Legal Counsel to assess the programs. On Friday, December 19, 2025, OLC issued its comprehensive assessment of the Constitutionality of the MSI programs. You can read that OLC opinion, below. OLC reaches the same conclusions we’ve long argued for.  The programs must meet strict scrutiny to be Constitutional and they fail both prongs of its analysis. OLC continued to analyze an additional question, concluding that the unconstitutional provisions of (almost all) the programs are inseverable (meaning that their statutes would not allow the Administration to move to operate the programs in a nondiscriminatory way).
The Department of Education is now evaluating the full impact of OLC’s opinion for the programs.  As it does so, Education Secretary McMahon has stated that “The Department of Education looks forward to working with Congress to reform these programs.”

The Congress

On December 11, 2025, Senator Jim Banks filed S. 3433 (the Promoting Equal Learning and Liberty–or “PELL”– Act of 2025), building on our model.  You can read about it here (or its actual text).  Banks’ PELL Act would enhance the Pell Grant program, which allows America’s neediest students of any and all races to afford higher education, at a time when others have warned it is running out of money.

What Comes Next

This leaves next steps to come in all three branches of the federal government.
It remains to be seen how the Administration will implement the OLC opinion, how Congress will act, and to what degree the Court in Tennessee will reach the same conclusions that OLC did, concerning both Constitutionality (where it should) and severability (where the question is far more open).
The ACR Project welcomes these developments and looks forward to seeing this matter through to its final resolution.
Published On: December 23rd, 2025Categories: Blog, Filings and CasesBy