(Warning: Confusing acronyms ahead.  NDIA is not NTIA, and vice versa.)

Last Wednesday, Judge John Bates of the U.S. District Court in DC issued a memorandum and order in National Digital Inclusion Alliance vs. Donald J. Trump, NDIA’s lawsuit seeking the restoration of the Digital Equity Competitive Grant Program.

Briefly, Judge Bates ruled that:

a) NDIA (the National Digital Inclusion Alliance) has standing to sue, so the case can go forward.

b) The Government is correct that the provision of the Digital Equity Act which makes racial and ethnic minorities a specific covered population is unconstitutional.

c) However, this finding does not invalidate the rest of the Act — it simply means that the unconstitutional provision must be severed, and NTIA (National Telecommunications and Information Administration, the Commerce Department agency that’s responsible) should be implementing the Act’s programs using the remaining seven covered populations.

d) The government’s lawyers have told the Court that NTIA is ready and willing to implement the Competitive Grant Program as long as it can remove racial and ethnic minorities from the list of covered populations. If NTIA proceeds to do so in light of yesterday’s decision, NDIA’s suit may become moot.  If not, NDIA’s case can go forward. “It is further ORDERED that the parties file a joint status report by not later than August 1, 2026, proposing a schedule to structure any further proceedings in this matter, particularly in light of the government’s representation that it will reinstate the Competitive Grant Program upon receiving this decision.”

So the Trump Justice Department has won a very, very bad precedent on so-called “racial preference”, but… it looks like NTIA may actually be preparing to spend the $1.25 billion appropriated by Congress to implement some version of the Digital Equity Competitive Grant Program. The Court says they’re obligated to do so.

See here and here for more details.

Here’s NDIA’s public statement in response to the ruling. 

This all leaves many unanswered questions. One of the biggest is: How does all this affect the other half of Digital Equity Act funding, i.e. states’ Capacity Grants, which were suspended by NTIA at the same time as the Competitive Grant Program, for the same ostensible reason — the Act’s “unconstitutional” inclusion of racial and ethnic minorities as a covered population?

The Justice Department has said nothing about NTIA re-starting the Capacity Grant Program in its statements to the Court.

But the same logic clearly applies: If NTIA is obligated to carry out the national Competitive Grant provisions of the DEA with the “unconstitutional” racial equity parts severed, it must have the same obligation with respect to $1.44 billion in state and territorial Digital Equity Capacity Grants.  That includes BroadbandOhio’s suspended initial award of $24 million, half of which the state had committed to fund community initiatives through a Ohio Digital Opportunity Grant Program.

It’s now possible that BroadbandOhio will see those funds restored. (Someone there should certainly be asking NTIA about this!) Digital inclusion programs throughout the state should pay close attention to developments in the next few weeks.