Judge rules that anti-woke is just racism
You can put lipstick on a pig, but it's still a rancid bigot.
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Earlier this week, a federal judge in Boston explicitly called out the Trump administration for its “palpably clear” discrimination against racial minorities and LGBTQ+ Americans in a case involving canceled grants from the National Institutes of Health.
“Have we no shame?” Judge William Young asked, in an unmistakeable echo of attorney Joseph Welch, who famously punctured Joe McCarthy’s popularity with his simple plea for decency.
Seventy-five years ago, McCarthy and his sidekick Roy Cohn hunted Communists. Now, Donald Trump, who was mentored by Cohn, hunts a different kind of subversive. In executive orders signed during his first weeks in office, he targeted “Illegal DEI and DEIA policies,” claiming that they violate civil rights laws. He declared that “it is the policy of the United States to recognize two sexes, male and female,” and branded “efforts to eradicate the biological reality of sex” as discriminatory against women and girls.
This is a radical misstatement of the law. No court in the land has ever held that DEI — whatever that means — constitutes racial discrimination, or that allowing trans people to participate in society amounts to gender discrimination. It also defies the medical and scientific consensus about sex, gender, and biology. But no matter! The president redefined reality by executive fiat, and then instructed his minions to carry out a purge consistent with his edict.
And purge, they did! The administration immediately moved to kick trans service members out of the military, reorient the Equal Employment Opportunity Commission to focus on “DEI-related discrimination at work,” and pulled down websites on everything from baseball icon Jackie Robinson to transgender health care.
But while the government was busy deleting pronouns from civil servants’ signature lines, it also slashed thousands of federal grants because some DOGE bro (or possibly an AI) decided that the recipient was vaguely “woke” — whatever that means. At NIH, more than a $1 billion of funding was cut because of its supposed association with “woke” ideologies.
Blanket termination letters informed recipients that their funding was being cut, often in the middle of a multi-year grant, for vague thought crimes:
Research programs based primarily on artificial and non-scientific categories, including amorphous equity objectives, are antithetical to the scientific inquiry, do nothing to expand our knowledge of living systems, provide low returns on investment, and ultimately do not enhance health, lengthen life, or reduce illness. Worse, so-called diversity, equity, and inclusion (“DEI”) studies are often used to support unlawful discrimination on the basis of race and other protected characteristics, which harms the health of Americans. Therefore, it is the policy of NIH not to prioritize such research programs.
How one would study, say, sickle cell anemia without discussing race is an exercise left for the reader. (Or not, since the government would probably pull a book on disease which primarily afflicts Black people off the shelves for being “DEI.”)
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A coalition of 16 blue states sued, and the case was joined with a similar one filed by several public health and labor groups. They argued that NIH “adopted a series of directives that blacklist certain topics — e.g., ‘DEI,’ ‘gender,’ or ‘vaccine hesitancy’ — that the Administration disfavors.”
All the impoundment cases, which involve money appropriate by Congress which the Trump administration simply refuses to disburse, recite a now-familiar set of legal claims. And indeed the plaintiffs here, too, argue that the president is violating the Spending Clause and the separation of powers — essentially that he is stealing Congress’s power over the federal budget. They also call the grant terminations “arbitrary and capricious,” in violation of the Administrative Procedures Act.
But here the plaintiffs make another argument in defense of their “woke” priorities. They note that statutes passed by Congress mandate that NIH fund research that supports racial equity and better health outcomes for gender and racial minorities.
“The Challenged Directives purport to restrict research on subjects that Congress has expressly required NIH to support,” they write. “In declaring research related to DEI, gender identity, and transgender health off-limits, defendants’ actions are contrary to congressional mandates.”
So, for instance, 42 U.S.C. §282(h) instructs the NIH director to “support[] programs for research, research training, recruitment, and other activities, provide for an increase in the number of women and individuals from disadvantaged backgrounds (including racial and ethnic minorities) in the fields of biomedical and behavioral research.”
Similarly, 42 U.S.C. §283p says that NIH “shall encourage efforts to improve research related to the health of sexual and gender minority populations, including by (1) facilitating increased participation of sexual and gender minority populations in clinical research” and by “facilitating the development of valid and reliable methods for research relevant to sexual and gender minority populations.”
Congress even established a National Institute on Minority Health and Health Disparities! So Trump simply cannot terminate all grants that touch on race and gender simply by labeling them as “discriminatory” or “divisive.” Or, he can, but judges are likely to rule that he’s done so unlawfully, as happened Monday in Boston.
“My duty is to call it out”
Judge Young, who was appointed to the federal bench by Ronald Reagan in 1985, called the terminations “arbitrary and capricious.” But he went further than other judges in the many impoundment suits, calling the administration out for its flagrant animus against racial and sexual minorities.
“I am hesitant to draw this conclusion — but I have an unflinching obligation to draw it — that this represents racial discrimination and discrimination against America’s LGBTQ community,” he said, according to Politico. “That’s what this is. I would be blind not to call it out. My duty is to call it out.“
DOJ lawyer Thomas Ports Jr. countered by echoing NIH’s boilerplate termination notices.
“Research programs based on gender identity are often unscientific, have little identifiable return on investment and do nothing to enhance the health of many Americans. Many such studies ignore rather than seriously examine biological realities,” he said. ”It is an improvement to eliminate these.”
“Where’s the support for that?” Judge Young shot back. “I see no evidence of that.”
Of course, there is no such evidence of that, which is why the government never presented any. Instead it pointed to Trump’s executive orders, insisting that the president gets to make his own reality. Other than various jurisdictional arguments aimed at getting the case moved to another court, they really had no defense. Ports wasn’t even able to define “DEI” when pressed by the court.
“You are bearing down on people of color because of their color,” the judge hammered on. “The Constitution will not permit that.”
Hit dogs holler
In 1954, Welch’s “Have you no decency, sir!” marked the beginning of the end for Sen. Joe McCarthy. Public support for his witch hunt collapsed, and he died in disgrace three years later. But decency is in short supply these days, and the White House is digging in.
“It is appalling that a federal judge would use court proceedings to express his political views and preferences,” White House flack Kush Desai sneered. “How is a judge going to deliver an impartial decision when he explicitly stated his biased opinion that the administration’s retraction of illegal DEI funding is racist and anti-LGBTQ?”
A hit dog will holler. And maybe that dog will win a reprieve from the Supreme Court, too. But even so, it still matters when old bulls of the judiciary, particularly conservatives like Judge Young and Judge Royce Lamberth, who enjoined attacks on trans prisoners, call out the Trump regime for turning civil rights laws on their head.
“I’ve never seen a record where racial discrimination was so palpable,” Judge Young fumed. “I’ve sat on this bench now for 40 years. I’ve never seen government racial discrimination like this.”
More of this, please.
EDITOR’S NOTE: A previous version of this story referred to attorney Jack Welch. The article has been corrected to reflect that the attorney’s name was Joseph Welch.
That’s it for today
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Why is no one talking about the VA being given permission to refuse service to Democrats and single persons. WTF?
Well that was interesting and good news that I'd never get from her in regional Australia. Let's hope the Supreme Court doesn't overturn it.