Senator Cruz sent a letter to the NTIA urging them to stop the digital equity funding because of priority on serving “individuals who are members of a racial or ethnic minority group” as criteria in grant applications for the Digital Equity Competitive Grant Program.
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.”1 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.”2 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.
The NOFO makes clear NTIA will consider race in awarding grants under the Program. It explains the Program’s goal is to “spur greater adoption and meaningful use of broadband among the Covered Populations.”3 Therefore, entities that receive grants must establish they will use those funds for activities benefitting “Covered Populations,”4 including “to develop and implement digital inclusion activities that benefit one or more of the Covered Populations,” “to implement training programs for Covered Populations,” and “to construct, upgrade, expand or operate new or existing public access computing centers for Covered Populations.”5 The NOFO requires applicants to identify “the Covered Populations to be served including the expected number of individuals to be served within each Covered Population” and “the amount of funding to be devoted proportionally to each Covered Population.”6 And so the NTIA can measure their performance, recipients must collect information regarding “the Covered Populations being served,” “the total number of individuals being served,” and “the number of individuals that belong to each Covered Population.”7 The NOFO further states that “in assessing applications, the Assistant Secretary will consider, to the extent practicable, whether the proposed program will increase Internet access and the adoption of broadband among Covered Populations.”8 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.”9 The problem is that the term “Covered Populations” is defined to include “individuals who are members of a racial or ethnic minority group.”10 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.11 “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.”12