Justice Department calls three NSF diversity programs unconstitutional

From ScienceMag:

The efforts of the National Science Foundation (NSF) to diversify U.S. science beyond its historical reliance on white men were dealt a blow last week after the Department of Justice (DOJ) ruled that three of its long-running programs were unconstitutional because they discriminate by race or sex and must be ended. At the same time, DOJ said four other NSF programs to strengthen the science, technology, engineering, and math (STEM) workforce pass legal muster and two more could be tweaked to avoid clashing with the ruling (see table, below).

Advocates for the barred NSF programs say the ruling will hurt the ability of the United States to remain competitive in science with other nations. “Anytime we eliminate a program that has been providing opportunities for all students to excel in science, we are limiting the ability of this country to excel,” says mathematician Freeman Hrabowski, president emeritus of the University of Maryland, Baltimore County, whose Meyerhoff Scholars Program has with the help of NSF funding become a national model for increasing the number of Black and Hispanic people in science and medicine. Representative Grace Meng (D–NY), the top Democrat on a congressional spending panel that sets NSF’s budget, vowed to fight what she calls “this very troubling legal opinion.” NSF declined comment.

At the same time, some legal scholars suggest the 12 August opinion by Deputy Assistant Attorney General Josh Craddock may signal that President Donald Trump’s administration is softening its blanket opposition to any diversity, equity, and inclusion program aimed at groups historically underrepresented in science and could be open to race and gender-neutral efforts.

“This is a more sophisticated, nuanced, and, with important exceptions, accurate depiction of federal law than we’ve seen from the Justice Department,” says one lawyer at a firm that advises research institutions battling the slew of Trump executive orders on race and sex/gender who requested anonymity to protect its relationship with the department. “This document articulates an avenue for neutral strategies that is a distinct contrast with a spate of recent findings that assume any neutral strategy is inherently unlawful or simply a mask for racial discrimination.”

As part of its mission to fund academic research, NSF has long been the main federal champion of STEM diversity. Within a few months of Trump retaking office, however, the agency terminated hundreds of grants for projects meant to attract and retain what former NSF Director Sethuraman Panchanathan calls “the missing millions.” Simultaneously, NSF said it would no longer support research projects “that preference some groups at the expense of others, or directly/indirectly exclude individuals or groups.” It also dismantled its Division of Equity for Excellence in STEM, the unit that had been funding many of those efforts.

The DOJ ruling goes one step further. It orders NSF to terminate the Louis Stokes Alliances for Minority Participation (one of the funders of the Meyerhoff scholars), the Alliances for Graduate Education and the Professoriate, and a program serving colleges and universities enrolling a significant number of Hispanic students. It also bars NSF from spending the $104 million appropriated for the programs this year by Congress.

That clawback of funds bolsters Trump’s insistence that his administration can override the wishes of Congress, which specifically authorized the NSF programs and has the constitutional authority to allocate federal dollars. “Congress’s power of the purse is formidable, but it cannot license—much less compel—the Executive Branch to engage in unconstitutional racial discrimination,” Craddock wrote in his 38-page opinion.

NSF has traditionally justified the need for its diversity programs with data showing that Black people, Hispanic people, and women have historically been heavily underrepresented in STEM fields. But Craddock said that approach doesn’t meet the new standard set by the U.S. Supreme Court in a 2023 decision outlawing the use of race in college admissions, which allows for race-based programs only to “remediate specific, identified instances of past discrimination.” He also quotes from a high court ruling this year striking down Louisiana’s use of race in drawing its congressional districts, which declared that “statistical disparities don’t cut it” as a justification for a race-based program.

But some legal analysts argue Craddock has gone too far. “Congress has the constitutional authority to identify systemic racism and other societal inequities and to pass legislation that is intended to address the problem,” says one lawyer, former general counsel at a major research university who also requested anonymity. “There are lawful ways in which to move forward with neutral and inclusive approaches to remove barriers to participation. And I think it is fundamentally wrong [for DOJ] to ignore that fact.”

Craddock’s ruling gives a green light to six other programs that Angela Williams, NSF’s general counsel, in May asked DOJ to evaluate. One was NSF’s prestigious Graduate Research Fellowship Program (GRFP), which includes a 2022 congressional directive “to recruit fellowship applicants from historically underrepresented populations in STEM.”

NSF would be crossing the line if its outreach for the GRFP targeted Black people or women, Craddock told Williams. But there’s an alternative, he explained. “NSF can satisfy this requirement by targeting race-neutral populations historically underrepresented in STEM—such as persons with disabilities, from rural communities, or from low-income background,” Craddock wrote. “The statute does not require NSF to target all historically underrepresented populations.”

An NSF program created in 2001 to increase the number of women in academic science and engineering careers, called ADVANCE, posed a trickier problem. Any approaches aimed exclusively at women would be unconstitutional, Craddock noted in his opinion, but sex-neutral strategies that wind up helping women are OK. “NSF could not fund activities that use sex as an eligibility criterion—such as a female-only Girls Who Code event,” he explained. “But NSF may continue to fund projects that do not give preferential treatment to one sex, even if such projects ultimately tend to benefit women more than men.”

However, institutions receiving NSF funding from the nonbanned programs aren’t off the hook, the lawyers who spoke with Science warn. Craddock’s ruling also prohibits NSF grantees from evaluating the effectiveness of any effort to close racial or gender gaps in science that is deemed unconstitutional.

Although that edict contradicts current case law allowing such research “as long as it does not yield a demonstrable benefit to one student and not another,” says one lawyer, they worry DOJ could eventually use that provision to shut down all NSF programs aimed at improving the diversity of the U.S. scientific workforce.

“So yes, preserving some programs now is a win,” one lawyer says. “But that does not necessarily mean that you can continue doing what you’ve been doing. You need to do it a way that pursues authentic neutral strategies for removing barriers that are not based on a person’s race or sex.”

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