If it has zero weight, why would the grant agreement specifically highlight it? I would guess it's much easier to enforce a particular interpretation of the law via a grant agreement than having to argue it in court.
The "rule against surplusage": Where one reading of a statute would make one or more parts of the statute redundant and another reading would avoid the redundancy, the other reading is preferred.
"Judges frequently invoke anti-redundancy principles in the interpretation of legal language, whether it appears in classic private-law documents such as contracts or classic public law-documents such as constitutions and statutes."
Redundancy: When Law Repeats Itself, John M. Golden (2016)
> Why would the grant agreement specifically highlight it?
I would humbly suggest that it mentions this particular example because the NSF administrator serves under the pleasure of the Executive and they have been tasked to demonstrate that they are following the orders of the Executive branch.
However, the inclusion of this specific example confers no higher priority than any other possible example. It has no weight; it is inoperative.
If it's inoperative then it shouldn't be in the language of the grant. Full stop.
The language itself also overly broad. The stipulation from the grant didn't just cover activities funded by the grant itself. In the very language quoted on the PSF blog, they needed to affirm that as an organization they "do not, and will not during the term of this financial assistance award, operate any programs that advance or promote DEI." Read that again. The language expressly states that they cannot operate ANY programs that advance or promote DEI during the term of the award. So if a PSF member volunteers with PyLadies, would that count as "advanc[ing] or promot[ing] DEI?"
In the real world, no one would _ever_ sign a contract with this sort of poison pill on it. If something like this was found buried in a contract I was evaluating with my lawyer, we'd immediately redline it as overly broad and overbearing.
> If it's inoperative then it shouldn't be in the language of the grant.
It’s not inoperative. A contract requirement that is redundant with a legal requirement still has separate effect (that is explicit here since this clause is a basis for both cancelling an award that has already been made and clawing back funds that have already been disbursed, separate from any penalties for the violation of the law itself.)
> In the real world, no one would _ever_ sign a contract with this sort of poison pill on it.
If by “this kind” you just mean “incorporating existing legal obligations separately as contract obligations with contractual consequences”, every government contract has multiple such clauses and has for decades.
If by “this kind” you mean more narrowly incorporating the specific anti-DEI provisions and partisan propaganda about DEI inside the clause also incorporating existing legal requirements, I’m pretty sure you will find that most federal contracts that have had their language drafted in the last few months have something like that because of agency implementations of EO 14151. How many people are signinf them...well, I would say look at whoever is still getting federal money, but given the shutdown that’s harder to see...
You are claiming that if the PSF took the grant and the NSF, or the president, decided the PSF was promoting DEI they would not be able to claw back funds?
OK, I accept that as a possible reason why it might be written there even if it has no weight. But it still seems very likely that it's easier to terminate a grant - and harder for the PSF to argue against that - than to actually prosecute DEI work and prove in court that it's illegal.
You say, paraphrasing, "It's harder to prove that a DEI program violates Federal anti-discrimination laws than it is to simply terminate a grant to an undesirable grantee."
Ok. Suppose that's true. The government can terminate grants that don't include that language equally as easily -- and, indeed, I just found that there are multiple current cases against the government for doing exactly that: health grants [1], solar grants [2], education grants [3].
Is your point is that the inclusion of this inoperative language makes it easier than it already is for the government to cancel grants and to defend against the subsequent lawsuits until the plaintiffs are pressured into compliance from lack of funding?
