UC Researchers Get Their Grants Back

The grants were terminated pursuant to Executive Orders that targeted diversity, equity and inclusion (DEI) initiatives that date from the current administration’s first months. The underlying lawsuits allege violations of the federal Administrative Procedure Act (APA) and the First Amendment to the Constitution. California law is not at issue. It should be noted, though, that California labor law broadly supports DEI principles, as part of its anti-discrimination legal framework.

Science or politics?

This is a huge, sprawling legal dispute that can be viewed through several lenses. Perhaps the best way to understand it, though, is through the story of one of the lead plaintiffs, Dr. Neeta Thakur.

Dr. Thakur is a pulmonologist who also is medical director of the Zuckerberg San Francisco General Hospital Chest Clinic. Her research focuses on how to mitigate the harm that breathing wildfire smoke does to people’s health, especially in minority and low-income California communities. That research has been funded, at least in part, through a $1.3 million grant from the EPA to the University of California. It was set to run through November.

Stopping and re-starting medical research is more damaging than many of us realize. It is about more than just layoffs. As Dr. Thakur noted, without funding, researchers were unable to finish their work. She had to dismiss a student intern and use scarce discretionary funds to pay her postdoctoral fellow. She has said that she and other postdoctoral students and more junior members of the research team had even had discussions about leaving academia: “‘Unstable’ and ‘uncertain’ were words that were used a lot.” Talented and highly trained scientists are in high demand. Their expertise may be lost to U.S. institutions and the American public.

At least three research papers that explored the results of Dr. Thakur’s research group’s findings were in danger of going unpublished without the funding. With reinstated funding, only two of the three were published. The information from the third was effectively lost.

The several Executive Orders that led to the stoppage were less about science than they were about politics. The various government announcements about the grant terminations were full of language about “failing to align with core priorities,” “wasteful spending,” and “woke” politics. Neither the Orders nor the notices of cancellation included any specific analysis of the cancelled projects.

Administrative Procedure Act and First Amendment allegations

This lack of specificity is at the heart of the lawsuit:

“The agencies that terminated grants did so on a categorical, en masse basis, without individual review or regard to a project’s merit or a grantee’s progress, and without any semblance of due process.”

The Complaint further alleges that,

“[t]hese grant terminations were and are occurring, …because that purpose now offends the political agenda and ideological requirements of the Trump Administration … and “violated the APA through this arbitrary, capricious, and ultra vires conduct.”
The plaintiffs’ First Amendment allegations are that the government engaged in unconstitutional viewpoint discrimination by targeting projects associated with DEI, environmental justice, and gender-related research. In an earlier iteration of the lawsuit, the court found that, “while the government has discretion in allocating subsidies, it cannot suppress disfavored ideas.”

Legal history (and likely future)

The Northern District upheld the plaintiffs’ claims in the initial version of the lawsuit, which specifically challenged the cancellation of NSF, NEH and EPA grants (including the grant that funded Dr. Thakur’s research) in June. That decision was then appealed to the Ninth Circuit, which upheld the District Court decision in August and issued an injunction against enforcement of the cancellation.
The plaintiffs then amended their Complaint to add challenges to the subsequent cancellations of DoD, DoT and NIH grants. The District Court reached the same result about this second tranche of grants on September 22. Many anticipate that the Ninth Circuit, on appeal, will uphold this District Court decision and enjoin cancellation again. But this is a big issue for the current administration, and it is unlikely to take the loss gracefully.

The likely next stop is the Supreme Court. The high court has recently taken to deciding these momentous power struggle cases on the “shadow docket” without issuing an opinion but simply blocking enforcement of the Ninth Circuit’s injunction. We wait to see what will happen next to UC research funding.