The Department of Justice (DOJ) has opined that some National Science Foundation (NSF) STEM programs that consider race or gender in administering the programs are unconstitutional, including one that focuses on Hispanic-serving institutions (HSIs).
In a memorandum issued on August 12, the Justice Department’s Office of Legal Counsel reviewed nine NSF education programs to determine whether race- or gender-based eligibility requirements comply with the Constitution’s equal protection guarantee. The opinion found three programs unconstitutional — the Improving Undergraduate STEM Education: Hispanic-Serving Institutions (IUSE-HSI) program among them — and determined that several programs, including the Advanced Technological Education (ATE) program, can continue.
The opinion is not a court ruling. It represents DOJ’s legal position and is intended to guide NSF in administering its programs.
Targeting HSI
IUSE-HSI aims to enhance undergraduate STEM education at HSIs and increase recruitment, retention and graduation rates of students pursuing associate or baccalaureate STEM degrees. The program explicitly includes community colleges in its eligibility and funding tracks. This means that each year, a significant share of the awarded grants go to community colleges, though the precise percentage varies by year.
In its review of the program, DOJ said it found 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 memo said.
It continued that race is so interwoven into the program’s design that it makes the program “not servable,” adding that “NSF must therefore cease administering the program.”
DOJ said NSF may use the IUSE-HSI funds for other programs, “as if they are residual amounts within the lump sum appropriation for STEM education.”
A different conclusion
DOJ reached a different conclusion in its review of ATE, finding that it contains “unconstitutional but severable components” and that NSF may continue administering such programs “on terms consistent with this opinion.”
Created to strengthen the education of technicians in high-technology fields, ATE has historically focused on two-year colleges and their partnerships with industry. Community colleges across the country rely on ATE grants to support curriculum development, faculty professional development, industry partnerships and innovative workforce training in fields ranging from advanced manufacturing and cybersecurity, to biotechnology and semiconductor production.
In its decision, DOJ noted that the 1992 Scientific and Advanced-Technology Act created ATE and directs NSF to “award grants to junior or community colleges to develop or improve associate degree or certificate programs in STEM fields.” The program does not distinguish between institutions based on their racial composition, it said.
But, the decision continued, Congress in 2018 directed NSF to prioritize ATE applications that “include outreach plans and goals for recruiting and enrolling women and other underrepresented populations in STEM fields.” It continued that prioritizing “underrepresented populations in STEM fields” can be administered in a race-neutral manner, and so DOJ did not consider whether that focus is severable.
But prioritizing applications with outreach goals for women “stands on a different footing,” DOJ said.
“Applying intermediate scrutiny, this sex-based preference falters at the first step of the analysis, lacking as it does an ‘exceedingly persuasive’ justification,” DOJ wrote.
“When Congress enacted the sex-based preference in 2018, it made several findings — none of which addressed discrimination against women in STEM,” the decision said, adding that “Mere ‘disparity or underrepresentation’ in STEM is not sufficient.”
