Sen Cruz Tells NTIA to Halt "Unconstitutional" 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.” 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. 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.

NTIA has not yet finalized a grant for any Digital Equity Competitive Grant Program funding to any applicants. Therefore, NTIA still has time to reverse course before it breaks the law. As the Ranking Member of the U.S. Senate Committee on Commerce, Science, and Transportation, we urge you to strike this unlawful Guidance now. No later than December 12, 2024, please provide a response to this letter, confirming that the NOFO is no longer in place and NTIA has halted the process of issuing grants under it, or otherwise setting forth, in detail, the reasons you believe the NOFO does not violate the United States Constitution.