Does the DOJ or PSF have more money for lawyers? If the answer isn’t the latter, the PSF is quite reasonably concluding that regardless of how a fair court might rule it would be financially perilous to attempt to stick up for the law, especially when a Republican supreme court has a fair chance of inventing another pretext for denying victory or allowing maximal harm to be done before acknowledging the law.
No. I was just pointing out that your downplaying of the risks in this thread is too cavalier: I believe they think, as do I, that even the cost of testing the legality of a particular interpretation would be crushing for a small non-profit.
If your point is that corporate lawyers tend to see monsters behind every blade of grass, I agree. This is what they are paid to do. If I am a cavalier, it is to calm this community, to point out that they are over-indexed on this language and that it is the courts jurisdiction to decide what is meant.
There is no language that will magically prevent a government from canceling a grant and requiring a grantee to pursue relief from the court. This type of guarantee does not exist.
The GP's point is that it puts recipients in the position of having to argue that something they agreed to is invalid. This presumably places a higher burden of proof on the company.
In the absence of such a statement, the first claim would need to be "the DEI program your company runs is against federal law", which could then be tested in the courts.
> The GP's point is that it puts recipients in the position of having to argue that something they agreed to is invalid. This presumably places a higher burden of proof on the company.
Understood; while I disagree with the GP's point, I do appreciate your response.
I don't believe such example clauses raise the threshold for the defense against a claim given that there could be practically unlimited number of such examples. I don't believe that any such example so highlighted creates an effective higher priority than any other possible example under 14th amendment equal protection grounds.
The requirement that grantees not violate existing laws is common in Federal grants. Taking umbrage with the DEI coloration on this entirely reasonable and standard requirement is absurd. There could be a long laundry list of such clauses that all have equally zero weight ("don't promote illegal drug trafficking", "don't promote illegal insider trading", ...).
If it has zero weight, why would the grant agreement specifically highlight it? I would guess it's much easier to enforce a particular interpretation of the law via a grant agreement than having to argue it in court.
The "rule against surplusage": Where one reading of a statute would make one or more parts of the statute redundant and another reading would avoid the redundancy, the other reading is preferred.
"Judges frequently invoke anti-redundancy principles in the interpretation of legal language, whether it appears in classic private-law documents such as contracts or classic public law-documents such as constitutions and statutes."
Redundancy: When Law Repeats Itself, John M. Golden (2016)
> Why would the grant agreement specifically highlight it?
I would humbly suggest that it mentions this particular example because the NSF administrator serves under the pleasure of the Executive and they have been tasked to demonstrate that they are following the orders of the Executive branch.
However, the inclusion of this specific example confers no higher priority than any other possible example. It has no weight; it is inoperative.
If it's inoperative then it shouldn't be in the language of the grant. Full stop.
The language itself also overly broad. The stipulation from the grant didn't just cover activities funded by the grant itself. In the very language quoted on the PSF blog, they needed to affirm that as an organization they "do not, and will not during the term of this financial assistance award, operate any programs that advance or promote DEI." Read that again. The language expressly states that they cannot operate ANY programs that advance or promote DEI during the term of the award. So if a PSF member volunteers with PyLadies, would that count as "advanc[ing] or promot[ing] DEI?"
In the real world, no one would _ever_ sign a contract with this sort of poison pill on it. If something like this was found buried in a contract I was evaluating with my lawyer, we'd immediately redline it as overly broad and overbearing.
> If it's inoperative then it shouldn't be in the language of the grant.
It’s not inoperative. A contract requirement that is redundant with a legal requirement still has separate effect (that is explicit here since this clause is a basis for both cancelling an award that has already been made and clawing back funds that have already been disbursed, separate from any penalties for the violation of the law itself.)
> In the real world, no one would _ever_ sign a contract with this sort of poison pill on it.
If by “this kind” you just mean “incorporating existing legal obligations separately as contract obligations with contractual consequences”, every government contract has multiple such clauses and has for decades.
If by “this kind” you mean more narrowly incorporating the specific anti-DEI provisions and partisan propaganda about DEI inside the clause also incorporating existing legal requirements, I’m pretty sure you will find that most federal contracts that have had their language drafted in the last few months have something like that because of agency implementations of EO 14151. How many people are signinf them...well, I would say look at whoever is still getting federal money, but given the shutdown that’s harder to see...
You are claiming that if the PSF took the grant and the NSF, or the president, decided the PSF was promoting DEI they would not be able to claw back funds?
OK, I accept that as a possible reason why it might be written there even if it has no weight. But it still seems very likely that it's easier to terminate a grant - and harder for the PSF to argue against that - than to actually prosecute DEI work and prove in court that it's illegal.
You say, paraphrasing, "It's harder to prove that a DEI program violates Federal anti-discrimination laws than it is to simply terminate a grant to an undesirable grantee."
Ok. Suppose that's true. The government can terminate grants that don't include that language equally as easily -- and, indeed, I just found that there are multiple current cases against the government for doing exactly that: health grants [1], solar grants [2], education grants [3].
Is your point is that the inclusion of this inoperative language makes it easier than it already is for the government to cancel grants and to defend against the subsequent lawsuits until the plaintiffs are pressured into compliance from lack of funding?
Could you clarify that you're suggesting that "it's un-American" for the government to require that the grantee not violate any of its anti-discrimination laws?
Aren't the left the ones making the claim posed by your opening sentence these days? Could you clarify whether it's seditious only when one side is making that claim or is the seditiousness of the claim group-independent?
The left wants social services and funding science and health care and education. The left wants legitimacy in the law & a government deserving of respect. Look through Kamala's campaign website & it's clear there's respect & desire for government. https://web.archive.org/web/20250101001206/https://kamalahar...
The right is pretty uniquely anti government, is enraptured by conspiracy theories and madness. Reagan strongly dismantled belief in the government. More recently we've had mass movements like the Tea Party. It was overwhelmingly people from the right who threatened, dozed, and otherwise scared the living shit out of FEMA agents trying to provide help after Helene and Milton.
It's good to criticiE the government, to want and demand better. But that's not what we are seeing from both sides. We're seeing the wholesale hegemonic suicide, the destruction of the advanced economy that has so far distinguished and given America it's power and respect, by a party that has been cheering on anti government & decoupled unhinged conspiracies and which has stoked anger and destruction for decades.
It can go two ways! But the whataboutism doesn't impress me in the least. There is overwhelming lopsidedness, of those who care and are empathetic and want better, stacked against negative creeps draining this land.
Sure there's some violent the other way too, some Chinese Robber Fallacy. But it's vanishingly small, it's not systematic, it's not the nature of the non-right at all, unlike what the right how the right has been agitating itself, pushing itself towards stochastic terrorism. There's a whole delusional crafted reality telling America my god Antifa is raging through the streets, wanton violence everywhere, you are under attack! But crime stats are way down, and from here in DC and from what Chicago tells me, it's all pure fabricated nonsense, deranged madness, terror-mongering.
I don't see both sides resorting to political violence. It's absolutely core to look at the character of the parties. Dems have tried again and again for bipartisanship, to be inclusive of of both parties. Lawful respectful hopeful charcacter abound, respect for civility & wanting good for all. Those basic traits are so vanishingly rare on the right, who has been terror-mongering & trying to shock their gullible marks into never realizing they are being preyed upon by their party, that their party is getting their interests again and again and doing everything it can to benefit the ultra-wealthy.
I'll bite. Do they get to decide what "fascism" means and change it to mean whatever they want on a whim? It might be simpler to just say that they can make whomever they don't like today illegal and don't allow them to run for seats.
Exactly. "fascist" is just another insulting word these days, like "motherfucker". Let's make motherfuckers illegal, and don't allow them to run for seats.
