Judge eyes block on federal disaster funding conditions

SAN FRANCISCO (CN) — A federal judge on Wednesday indicated he was likely to find Department of Homeland Security conditions requiring local governments to adhere to federal policy priorities to receive disaster preparedness grants unconstitutional because the conditions are unrelated to the original intent of the grants.

“The conditions that the government is trying to impose conflict with Congress’ purpose in establishing the grants. I don’t see how infrastructure security, fire-related grants, homeland security, and other grants have anything to do with the government’s current interpretation of DEIA; the conditions are unrelated,” Senior U.S. District Judge William Orrick said.

The Barack Obama appointee called the government’s intended conditions “ambiguous” because terms were not defined and took issue with the requirements to comply with all current and future executive orders.

“I don’t know how that condition works since so many provisions are currently held as unconstitutional by various courts,” he said.

Orrick said he would release his official ruling by Monday.

Cities and counties in California, Washington and Arizona sued the government on Sept. 30, accusing it of threatening to withhold over $350 million of emergency and disaster preparedness grant funds unless local governments agree to comply with new conditions adopted by the Homeland Security Department and the Federal Emergency Management Agency.

The plaintiffs are specifically challenging two conditions: a discrimination condition that prohibits grantees from “advance or promote DEI, DEIA, or discriminatory equity ideology” and “engaging in a discriminatory prohibited boycott,” and another executive order condition mandating compliance with executive orders related to grants.

At the hearing on the plaintiff’s request for a preliminary injunction, Department of Justice attorney Stephen Tagert argued that the antidiscrimination condition was “perfectly permissible” under Title VI of the Civil Rights Act. He further said the plaintiffs should have the burden to prove they are not operating any illegal DEI programs, which Orrick seemed skeptical of.

“The government today is different with respect to the way they view discrimination, the way they view DEI, than previous administrations,” Orrick said. “The burden, it would seem to me, would be on the government to be extraordinarily specific about what it is they find is discriminatory. All of the plaintiffs believe that what they have done has not been discriminatory against people. The administration may have a different view, so it’s incumbent on the government to specify what it is that would violate this.”

Tagert responded, saying the administration’s focus is similar to the Supreme Court’s decision in Students for Fair Admissions , where the court shot down affirmative action policies at Harvard and the University of North Carolina.

“It’s not that this is adding to new law. We are saying this is an enforcement of how the Supreme Court has interpreted federal anti-discrimination law,” he said, adding, “Following Students for Fair Admissions is what the administration is doing here.”

On rebuttal, San Francisco Deputy City Attorney Steven Mills, an attorney for the plaintiffs, argued the discrimination condition authorizes the homeland security secretary to terminate grants if she determines it’s unlawful, despite Title VI safeguards that prohibit unilateral decision-making.

“Title VI only goes so far to cover what the government is doing here,” he said.

Mills added that the government’s own regulations conflict with other federal laws, which can be confusing for grantees.

“When you look at their regulations, combined with what this administration is doing, it shows the problems recipients of these funds have. Their own regulations recognize that gender identity is protected, but the executive orders they are using to try to redefine federal antidiscrimination law are eviscerating and changing that,” he said.

Mills concluded, saying the plaintiffs are in an impossible situation between refusing to take federal disaster preparedness funding and complying with what they see as unlawful conditions.

“There is serious, real harms the plaintiffs are facing here with this Hobson’s choice of walking away from critical public safety funding, to protect their communities, to prevent harms to first responders, opposed to accepting unlawful conditions that require something completely different than what has traditionally been done,” he said.

In a statement to Courthouse News, Santa Clara County Counsel Tony LoPresti said they were “pleased, but not surprised” that the court tentatively agreed the government can’t unlawfully condition grant funding.

“The court recognized that the president and members of his administration are flouting the purposes of these programs by imposing their own political agenda on the funding.  We look forward to receiving the court’s written ruling and are excited at the prospect that our local communities will not have to face down possible disruptions to their public safety and emergency preparedness programs,” he said.

A representative for the Department of Justice said they do not comment on pending litigation.

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