Judge reinstates digital equity grants
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By
Chris Teale
The $2.75 billion program under the Digital Equity Act can and should proceed, a judge ruled, but it cannot use race when considering recipients.
A federal judge last week ruled that a digital equity grant program can and should be administered but said it unconstitutionally prioritized racial minorities when considering applications.
Judge John Bates of the U.S. District Court of the District of Columbia said in a written opinion that the $2.75 billion competitive grant program under the Digital Equity Act could proceed after its cancellation was challenged in a lawsuit brought by the nonprofit National Digital Inclusion Alliance. However, the grant program must move forward without recipients’ race or ethnic status being considered. Government lawyers said in court that if that aspect was stricken, the grant program could proceed, and Bates agreed it could be severed.
“[The government] agrees, at this stage, that the President lacks the power to cancel laws passed by Congress based on his bald disagreement with Congress’s policy determinations,” Bates wrote in his opinion.
NDIA brought the lawsuit to reinstate the digital equity grant program last year, shortly after President Donald Trump terminated the program, which he described at the time on social media as a “racist and illegal $2.5 billion giveaway.” In his opinion, Bates leaned heavily on the U.S. Supreme Court’s 2023 decision to invalidate affirmative action in higher education admissions, and agreed that using race as a determining factor in grant awards was illegal.
“The Digital Equity Act straightforwardly categorizes members of certain races as ‘covered’ by the Act and targets grant money to programs that benefit those groups,” Bates wrote. “That is an explicit racial classification, which can only be upheld if it withstands strict scrutiny. Here, it does not: the offending provision is neither justified by a compelling governmental interest nor narrowly tailored to meet a permissible goal. Accordingly, it is unconstitutional.”
Bates noted that seven sub-groups — low-income Americans, older Americans, incarcerated people, veterans, people with disabilities, “individuals with a language barrier,” and rural residents — can still benefit.
“Even without the racial criterion, grant money can be allocated among the remaining groups,” Bates wrote. “The Act requires consideration of covered population status generally and does not mandate that money go to any particular subgroup.”
But he said that using grant money to bolster internet access among racial minorities or others does not survive scrutiny.
“Addressing that gap is a laudable goal, but the Supreme Court has admonished that ameliorating general societal inequalities — as opposed to specific instances of past discrimination — ‘does not constitute a compelling interest that justifies race-based state action,’” Bates wrote, including a quote of the Supreme Court’s decision on affirmative action.
The judge’s ruling, and government lawyers’ promises, means the program can proceed as planned with that change, administered by the National Telecommunications and Information Administration under the 2021 infrastructure law. After Trump’s May 2025 declaration, states quickly received letters informing them their grants had been terminated, while the NTIA quickly scrubbed references to the program from its website.
An NTIA spokesperson said in an email the agency is “pleased the court has agreed with President Trump and [Commerce] Secretary [Howard] Lutnick that the Digital Equity Act discriminated on the basis of race and therefore violates the Constitution.” The spokesperson did not comment on what will come next for the program. But advocates said they are encouraged.
“Congress was right to recognize the historical disparities in access and adoption of critical connectivity tools — and to address these inequities with thoughtful planning and funding,” Revati Prasad, the executive director of the nonprofit Benton Institute for Broadband & Society, said in a statement. “We disagree with the court’s decision that considering the connectivity needs of racial or ethnic minorities constitutes an unconstitutional race-based classification. The court also found that terminating the entire program was not warranted. The Administration committed to restarting the program, and we call on [NTIA] Administrator [Arielle] Roth to act quickly.”
The case will continue as a civil matter, as Bates ruled that NDIA had standing to sue, and can challenge the ruling under some aspects of the Administrative Procedure Act, which allows groups and other parties to sue federal agencies for illegal actions.
Bates said quashing the entire law "would deprive all Americans who lack reliable broadband of access to funds." “Common sense dictates that Congress would prefer to have a version of the Digital Equity Act without the racial criterion than to have no law at all," he continued.