Groups ask justices to leave order in place requiring Trump administration to fund studies linked to DEI initiatives

Updated on August 1 at 8:50 pm.

Two groups of plaintiffs seeking to stop the National Institutes of Health from terminating $783 million in grants urged the Supreme Court on Friday afternoon to leave in place a ruling by a federal judge in Massachusetts that requires the federal government to continue making the grant payments. Lawyers for a group of 16 states, led by Massachusetts, told the justices that the termination of the grants “caused unrecoverable loss of scientific knowledge,” while lawyers for a group of private plaintiffs, led by the American Public Health Association, echoed that sentiment, arguing that “[e]ven a brief stay would invalidate” projects for which funding had already been allocated, “inflicting incalculable losses in public health and human life because of delays in bringing the fruits of” their research “to Americans who desperately await clinical advancements.”

The dispute has its roots in an executive order signed by President Donald Trump shortly after his inauguration on Jan. 20. The order, titled “Ending Radical and Wasteful Government DEI Programs and Preferencing,” instructed the “Director of the Office of Management and Budget (OMB), assisted by  the Attorney General and the Director of the Office of Personnel Management,” to “coordinate the termination of all discriminatory programs, including illegal DEI and ‘diversity, equity, inclusion, and accessibility’ (DEIA) mandates, policies, programs, preferences, and activities in the Federal Government.” The order also commanded federal agency heads to “terminate, to the maximum extent allowed by law, all … ‘equity-related’ grants or contracts” within 60 days. Two other executive orders – titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” and “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” – followed that order.

In the wake of those orders, NIH – which is the largest public funding source for biomedical research in the world – terminated hundreds of grants it linked to DEI-related studies. The group of 16 states, whose public universities receive funding from NIH, went to federal court in Massachusetts, as did a group comprised of the APHA, individual researchers, a union, and a reproductive health advocacy group. They contended that the termination of the grants violated both the Constitution and the Administrative Procedure Act, the federal law governing administrative agencies.

Considering both cases together, U.S. District Judge William Young agreed that the grant terminations violated the APA. Young explained that although “a new administration certainly is entitled to make changes — even unpopular or unwise changes” – it cannot “undertake actions that are not reasonable and not reasonably explained.” And NIH cannot meet this bar, he said, because “there is no reasoned decision-making at all with respect to the NIH’s ‘abruptness’ in the ‘robotic rollout’ of this grant-termination action.”

U.S. Solicitor General D. John Sauer came to the Supreme Court on July 24, asking the justices to intervene and put Young’s order on hold after the U.S. Court of Appeals for the 1st Circuit declined to do so. Sauer pointed to an earlier order on the court’s emergency docket in which the justices granted a request by the Department of Education to temporarily stop the payment of millions of dollars in teacher-training grants that included funding for DEI initiatives. The Supreme Court in that case agreed that the government is likely to show that another federal judge in Massachusetts lacked the power to instruct the government to make the payments. Instead, the majority emphasized, lawsuits arising from contracts with the United States should be brought in a different court, the Court of Federal Claims, located in Washington, D.C.

In their response briefs, filed on Friday, both the states and the private plaintiffs urged the Supreme Court to leave Young’s order in place. Their case, they emphasized, is different from the case in which the justices allowed the Department of Education to stop payments for teacher-training grants. Among other things, the private plaintiffs noted, they “have not represented and cannot ‘represent in this litigation that they have the financial wherewithal to’” make up for the lost NIH funding.

There is also no reason for their case to be in the Court of Federal Claims instead of the district court, they continued, because they are challenging final actions by the NIH under the APA – specifically, the directives that led to the grant terminations – rather than the grant terminations themselves. According to the states, NIH itself conceded that those directives “memorialized a ‘uniform policy’ with ‘global[]’ application antecedent to, and independent of, any specific NIH grant or application.”

At bottom, the challengers contended, the directives violate the APA because they are arbitrary and capricious – that is, not reasonable and reasonably explained. NIH cannot meet this low bar, the challengers wrote, because NIH did not provide any real explanation for the decision to terminate the grants. “As the district court found,” the states said, “nothing backed up the directives’ conclusory assertions: the certified record consists almost entirely of the directives themselves and boilerplate letters parroting the directives,” and there is nothing to explain what constitutes a banned “DEI study.”