ICYMI: Sen. Cruz Demands Biden-Harris Halt $1.25 Billion in Unconstitutional, Racist Spending

New Grants from Telecom Agency Would Violate the Fifth Amendment

WASHINGTON, D.C. -?In case you missed it, U.S. Senate Commerce Committee Ranking Member Ted Cruz (R-Texas) is calling for the administration to withdraw and halt its unlawful and discriminatory guidance?for the National Telecommunications and Information Administration's (NTIA) 'Digital Equity Competitive Grant Program.' The 'Digital Equity' program instructs NTIA to consider the race of the program's beneficiaries when issuing grant awards. In a letter sent last week, Sen. Cruz details how NTIA's guidance for the $1.25 billion program impermissibly discriminates based on race, in violation of the Fifth Amendment to the U.S. Constitution. The Supreme Court has ruled that affirmative action-like programs are permitted to remedy specific instances of past discrimination. NTIA offered no evidence whatsoever of racial minorities facing discrimination in accessing the internet.

In his letter Sen. Cruz writes,

"The National Telecommunications and Information Administration (NTIA) is expected to soon begin distributing $1.25 billion in grants to nonprofits under the 'Digital Equity Competitive Grant Program' (Program) 'to support efforts to achieve digital equity, promote digital inclusion activities, and spur greater adoption of broadband among covered populations.'"

Sen. Cruz writes that the Notice of Funding Opportunity's (NOFO) race-based guidance violates the Fifth Amendment and urges its withdrawal to prevent real harm.

The Program's Notice of Funding Opportunity (NOFO) establishes that applicants must use the funding to serve members of 'covered populations,' defined to include 'individuals who are members of a racial or ethnic minority group.' This instruction makes clear that NTIA will consider the race of the Program's beneficiaries when issuing grant awards, in violation of the Fifth Amendment to the Constitution. As the Ranking Member of the United States Senate Committee on Commerce, Science, and Transportation, which oversees NTIA, I urge you to withdraw the unlawful NOFO and halt issuing Program grants before you cause real harm...

Sen. Cruz highlights how NTIA defines the term "Covered populations" to discriminate based on race.

"...Assistant Secretary will consider, to the extent practicable, whether the proposed program will increase Internet access and the adoption of broadband among Covered Populations.' Moreover, when evaluating applications, NTIA will seek to 'ensure that all Covered Populations are being served' and can aim 'to balance the Covered Populations being served.' The problem is that the term 'covered populations' is defined to include 'individuals who are members of a racial or ethnic minority group.' Therefore, in issuing grants pursuant to the NOFO, NTIA will consider whether the award will benefit members of a certain race, in violation of the Fifth Amendment."

"The federal government is forbidden from engaging in impermissible race-based discrimination under the equal protection component of the Fifth Amendment's Due Process Clause.When the government distributes burdens or benefits on the basis of racial classifications, that action is reviewed under strict scrutiny,' meaning that to pass muster, the program be ''narrowly tailored' to achieve a 'compelling' government interest.'"

"NTIA's use of racial classifications, as set forth in the NOFO, does not serve a compelling governmental interest. The Supreme Court has 'identified only two compelling interests that permit resort to race-based government action. One is remediating specific, identified instances of past discrimination that violated the Constitution or a statute. . . . The second is avoiding imminent and serious risks to human safety in prisons. A generalized assertion of past discrimination in a particular industry or region is not adequate' for the government to make this showing."

Sen. Cruz outlines the NOFO's lack of evidence of racial discrimination in internet access and failure to justify its race-based classification with specific or measurable goals.

"The NOFO provides no evidence racial minorities face discrimination in accessing the internet, let alone specific instances of discrimination that NTIA is seeking to address. And it does not attempt to make any claim that this discrimination is necessary to avoid a prison race riot. The NOFO instead makes vague appeals for 'digital equity and digital inclusion.' As the Supreme Court explained decades ago in City of Richmond v. J.A. Croson Co.-holding unconstitutional a city ordinance that required government contractors to subcontract with minority-owned businesses-'the mere recitation of a benign or compensatory purpose for the use of a racial classification' is not a sufficient defense of a race-based measure as this 'would essentially . . . insulate any racial classification from judicial scrutiny.' At bottom, however, a 'mere recitation of a benign or compensatory purpose' is all the NOFO offers."

"Nor is the NOFO's use of racial classifications narrowly tailored. In determining whether the government's reliance on race is narrowly tailored, courts consider factors including (1) the duration of the discriminatory program, (2) whether the discriminatory program is over or underinclusive, and (3) whether the discriminatory program has a measurable, coherent goal. The NOFO comes up short on all fronts: First, there is no end date to the discrimination-it will continue so long as the Program has funding. Second, the NOFO does not define 'minority,' making it impossible to determine whether it is underinclusive, but in any event it is overinclusive because it includes anyone who falls into some racial group, without any determination that that specific group has faced discrimination in access to broadband. Third, the Guidance offers no way to measure when NTIA will have achieved its vague, stated goal to 'achieve digital equity, promote digital inclusion activities, and spur greater adoption and meaningful use of broadband among the Covered Populations.'"

"This is not a close call. In the past several years, federal courts have repeatedly held that similar programs were unconstitutional. Most notably, in Ultima Servs. Corp. v. U.S. Department of Agriculture, a small business owned by a white woman sued the Department of Agriculture (USDA) and the Small Business Administration (SBA), claiming that agencies' reliance on race to determine which businesses qualified for the SBA's 8(a) Business Development Program violated the Fifth Amendment's Due Process Clause. The court agreed that the 8(a) Program could not survive strict scrutiny. In reaching this conclusion, the court rejected the government's evidence regarding disparities minority businesses face nationally as insufficiently specific and concluded that the 8(a) Program's permanence, over- and under-inclusiveness, and lack of specific objectives demonstrated that it was not narrowly tailored. As a result, the SBA had to revamp the 8(a) program."

"Courts also struck down race-based programs, which, like the Digital Equity Competitive Grant Program, were initiated during the Biden-Harris administration's woke spending spree. In Vitolo v. Guzman, the Sixth Circuit concluded that it was unconstitutional for the Small Business Administration to prioritize COVID relief funding applications that were submitted by minority-owned businesses pursuant to the American Rescue Plan Act of 2021. Similarly, in Strickland v. U.S. Department of Agriculture, the court concluded that a Farm Service Agency program, which allocated more COVID relief funds to members of certain races, likely violated the Fifth Amendment. This Program's NOFO-which was designed to administer government benefits based on race-is just another unconstitutional remnant of the Biden-Harris administration. If the NTIA proceeds, it will only invite another successful lawsuit."

The letter concludes with Sen. Cruz urging NTIA to "strike this unlawful Guidance now."

Read the full text of this letter HERE.

Background:

As Ranking Member, Sen. Cruz has challenged multiple instances of unconstitutional funding guidance across the Biden administration.

In February 2024, Sen. Cruz led senators in calling on US. Department of Commerce (Commerce) to reverse its unlawful and discriminatory guidance surrounding the distribution of CHIPS Act funding.

As Ranking Member, Sen. Cruz has also challenged unlawful efforts by the Federal Communications Commission (FCC) to control virtually every aspect of the broadband business under the guise of preventing so-called "digital discrimination."

In November 2023, Sen. Cruz led 27 of his colleagues in opposing the FCC's order on "Digital Discrimination"-an attempt to give the federal government control over nearly every aspect of the internet while opening broadband providers to expansive, indeterminate, and crippling liability under a "disparate impact" standard.

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https://www.commerce.senate.gov/2024/11/icymi-sen-cruz-demands-biden-harris-halt-1-25-billion-in-unconstitutional-racist-spending