The Justice Department Office of Legal Counsel determined this week that three of the National Science Foundation’s science, technology, engineering, and mathematics programs are unconstitutional because of their race- and sex-based criteria, although the agency has so far declined to say whether it would change or halt them.
NSF spokesman Michael England declined to comment when the Washington Examiner asked Friday what actions the agency planned to take following the opinion, even though the department found that three of the programs it reviewed are unconstitutional.
In a Wednesday memorandum opinion addressed to the NSF general counsel, the DOJ’s OLC said the Improving Undergraduate STEM Education: Hispanic-Serving Institutions program, the Alliances for Graduate Education and the Professoriate program, and the Louis Stokes Alliances for Minority Participation program all violate the Constitution’s equal-protection guarantee “in their entirety.”
The OLC opinion, signed by Deputy Assistant Attorney General for OLC Josh Craddock, is legal advice to the executive branch, not a court ruling. But it directs the agency not to continue administering the three programs as they were previously structured.
The DOJ said NSF cannot reprogram the money Congress appropriated for the programs. Instead, it may treat the funding as residual amounts within its broader STEM education appropriation.
Based on figures in the opinion, the three programs account for roughly $104 million of NSF’s $938 million STEM education fund.
Two other programs, Advanced Technological Education and the Advance Program, include race- or sex-based elements that the DOJ concluded could be severed from their broader statutory frameworks.
“NSF may continue to administer those programs provided that it does not implement or enforce the unconstitutional provisions,” the opinion said.
The remaining four reviewed programs were found constitutional, including the Tribal Colleges and Universities Program. The opinion also said NSF must administer three programs — the Graduate Research Fellowship Program, Advancing Informal STEM Learning, and the Robert Noyce Teacher Scholarship Program — without considering race or sex.
NSF asked the DOJ in May to review nine programs and determine whether they violated equal-protection principles and whether the agency could redirect money that could no longer be spent under their existing criteria.
The opinion said the agency may not make that reallocation because Congress appropriated the money through a lump-sum STEM education account, with minimum allocations for particular programs. The unconstitutional program-specific funding mandates, however, cannot be enforced, according to OLC.
The finding is particularly notable because Congress created or endorsed some of the targeted programs.
The Improving Undergraduate STEM Education: Hispanic-Serving Institutions program, for example, was created under the bipartisan America COMPETES Act of 2007, which former President George W. Bush signed into law.
The OLC review concluded there was “no compelling interest to support the program’s racial criteria.”
“Congress made no findings at all about the program, much less findings about ‘specific, identified instances of past discrimination’ against Hispanic students that violated the law,” the opinion said.
OLC repeatedly relied on the Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard, which ended the consideration of race in college admissions. It also cited prior DOJ opinions finding race- and sex-based programs at the Department of Education and Department of Agriculture unconstitutional.
The opinion comes as the Trump administration has moved to eliminate diversity, equity, and inclusion initiatives across the federal government. White House science adviser Michael Kratsios has argued that DEI programs degrade science, while NSF has sought to terminate grants based in part on their connections to DEI.
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Rep. George Whitesides (D-CA), a former NASA chief of staff, criticized the opinion in a post on X.
“This move attacks the foundations of equal opportunity in our country,” Whitesides wrote Thursday afternoon. “Each and every attempt by this administration to dismantle our STEM workforce will have devastating effects on our future for generations to come.”