The Trump administration said Friday it will not defend a decades-old grant program for colleges with large numbers of Hispanic students that is being challenged in court, declaring the government believes the funding is unconstitutional.
In a memo sent to Congress, the Justice Department said it agrees with a lawsuit attempting to strike down grants that are reserved for colleges and universities where at least a quarter of undergraduates are Hispanic. Congress created the program in 1998 after finding Latino students were going to college and graduating at far lower rates than White students.
Justice Department officials argued the program provides an unconstitutional advantage based on race or ethnicity.
The state of Tennessee and an anti-affirmative action organization sued the US Education Department in June, asking a judge to halt the Hispanic-Serving Institution program. Tennessee argued all of its public universities serve Hispanic students but none meet the “arbitrary ethnic threshold” to be eligible for the grants. Those schools miss out on tens of millions of dollars because of discriminatory requirements, the suit said.
On Friday, the Justice Department released a letter in which Solicitor General John Sauer notified Republican House Speaker Mike Johnson that the department “has decided not to defend” the program, saying certain aspects of it are unconstitutional. The letter, dated July 25, cited a 2023 Supreme Court decision that “outright racial balancing” is “patently unconstitutional.”
The Justice Department declined to comment.
Tennessee is backed in the suit by Students for Fair Admissions, a conservative legal group that successfully challenged affirmative action in admissions at Harvard and the University of North Carolina. That suit led to a 2023 Supreme Court ruling that forbids universities from considering students’ race in admissions decisions.
Edward Blum, president of Students for Fair Admissions, said Friday the group would decline to comment.
More than 500 colleges and universities are designated as Hispanic-Serving Institutions, making them eligible for the grant program. Congress appropriated about $350 million for the program in 2024. Colleges compete for the grants, which can go toward a range of uses, including building improvements and science programs.
Former President Joe Biden made Hispanic-serving universities a priority, signing an executive action last year that promised a new presidential advisory board and increased funding. President Donald Trump revoked the order his first day in office.
Trump is taking steps to dismantle the Education Department and has called for massive funding cuts, yet his 2026 budget request preserved grants for Hispanic-serving universities and even asked Congress for a slight increase. Even so, there have been doubts about his administration’s commitment to the funding.
A national association of Hispanic-serving universities filed a motion last month to intervene as a defendant in the Tennessee lawsuit, voicing concern that the federal government would not adequately represent the group’s members.
The Hispanic Association of Colleges and Universities said Trump’s agenda is “entirely adverse” to the group’s interests, citing the president’s aim to close the Education Department entirely. The administration is “on record denouncing programs like HSIs, that take account of and seek to redress ethnic or racial disparity,” the group wrote.
Tennessee and Students for Fair Admissions did not object to the group’s request to lead the legal defense.
Unlike historically Black or Native American tribal colleges and universities, which receive their designations based on their missions, any college can receive the HSI label and grants if its Latino enrollment makes up at least 25% of the undergraduate student body.
The list of HSIs includes flagship campuses like the University of Texas at Austin and the University of Arizona, along with many community colleges and smaller institutions.
In its court filing, the national association argues the grants are constitutional and help put its members on an even playing field.
The group’s schools enroll 67% of the nation’s Latino undergraduate students, yet studies find those schools receive far less in state and federal funding than other institutions. Hispanic-serving universities are open to students of all races — as an example, the association pointed to Southern Adventist University, a private school in Tennessee whose student body is 28% Hispanic and 40% White.
The Justice Department generally has a duty to uphold the Constitution and federal legislation, but in rare cases it can refuse to defend laws it believes are unconstitutional. The Obama administration did so in 2011 when it refused to enforce the Defense of Marriage Act. During his first term, Trump did the same with the Affordable Care Act.
The Trump administration has fought to end diversity, equity and inclusion policies in government, education and business, arguing that they discriminate against White and Asian American people.
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