Judge: You can’t ban DEI grants without bothering to define DEI

Separately, Trump v. Casa blocked the use of a national injunction against illegal activity. So, while the government’s actions have been determined to be illegal, Young can only protect the people who were parties to this suit. Anyone who lost a grant but wasn’t a member of any of the parties involved, or based in any of the states that sued, remains on their own.

Those issues aside, the ruling largely focuses on whether the termination of grants violates the Administrative Procedures Act, which governs how the executive branch handles decision- and rule-making. Specifically, it requires that any decisions of this sort cannot be “arbitrary and capricious.” And, Young concludes that the government hasn’t cleared that bar.

Arbitrary and capricious

The grant cancellations, Young concludes, “Arise from the NIH’s newly minted war against undefined concepts of diversity, equity, and inclusion and gender identity, that has expanded to include vaccine hesitancy, COVID, influencing public opinion and climate change.” The “undefined” aspect plays a key part in his reasoning. Referring to DEI, he writes, “No one has ever defined it to this Court—and this Court has asked multiple times.” It’s not defined in Trump’s executive order that launched the “newly minted war,” and Young found that administrators within the NIH issued multiple documents that attempted to define it, not all of which were consistent with each other, and in some cases seemed to use circular reasoning.

He also noted that the officials who sent these memos had a tendency to resign shortly afterward, writing, “it is not lost on the Court that oftentimes people vote with their feet.”

As a result, the NIH staff had no solid guidance for determining whether a given grant violated the new anti-DEI policy, or how that might be weighed against the scientific merit of the grant. So, how were they to identify which grants needed to be terminated? The evidence revealed at trial indicates that they didn’t need to make those decisions; DOGE made them for the NIH. In one case, an NIH official approved a list of grants to terminate received from DOGE only two minutes after it showed up in his inbox.