*The following story by Broadband Breakfast Reporter Jericho Casper was originally published here.
Trump administration attorneys told a federal judge that the Digital Equity Act's competitive grant program could likely continue if a challenged provision is struck down.
During a hearing before U.S. District Judge John Bates, Commerce Department attorney Patrick Butler argued that a statutory provision identifying certain racial and ethnic groups as “covered populations” could be severed from the law if found unconstitutional.
(Should that happen, it would allow) the rest of the program to move forward without considering race.
The clarification came during a motion hearing in a suit brought by the National Digital Inclusion Alliance (NDIA), which challenged the administration's decision to halt the Digital Equity Act program after President Donald Trump characterized it as unconstitutional.
The hearing, held in the U.S. District Court for the District of Columbia on June 11, was made public Monday.
During the hearing, Bates repeatedly questioned both sides about whether the constitutional issue could be resolved now, at the motion-to-dismiss stage, and whether any part of the case would remain if the challenged provision were severed and the grant program continued.
Justice Department and Commerce Department attorneys argued that the disputed provision could be removed while leaving the rest of the program intact.
“It's our position that the racial classification is severable,” Butler told the court. “If you decide that the racial classification is unconstitutional ... and then you sever it, we would obviously apply the grant program without considering race.”
Attorneys for the plaintiff NDIA, represented by Crowell & Moring LLP and the Lawyers' Committee for Civil Rights Under Law, said the government's position was new to them.
Bates appeared equally surprised. “You and me both,” the judge responded.
Bates noted that the administration had previously suspended the entire program and questioned how that position squared with the government's new assertion that the grant program could continue without the challenged provision.
In response, Butler acknowledged that the administration’s “public statements could have been more precise” but said the government would adhere to the text of the statute to administer the program without the racial classification provision.
Bates ordered both sides to submit additional briefing on whether the constitutional issue should be decided at the motion-to-dismiss stage and what claims would remain if the challenged provision were severed.
In a supplemental briefing filed Monday, the government maintained that the constitutional question can be decided now and that the program can proceed without delay if the statute’s racial classification is severed.
“Put simply, this Court can and should decide this case now,” government attorneys wrote.
NDIA pushed back sharply on the government’s request for an immediate ruling, arguing that the case cannot be resolved on a motion to dismiss and requires discovery into how the Commerce Department actually implemented the program.
In its supplemental filing, the group said the statute does not, on its face, require race-based decisionmaking and that whether any racial classification occurred in practice is a factual question that can only be answered through the administrative record.
NDIA also argued that even if the court were to sever the challenged provision, it would not resolve the lawsuit, pointing to unresolved questions about how grants were awarded and whether any applicants were disadvantaged or excluded during the selection process.
