Well, that’s settled

Settlement forces NIH to review grants previously rejected on ideological grounds.

On Monday, the ACLU announced that it and other organizations representing medical researchers had reached a settlement in their suit against the federal government over grant applications that had been rejected under a policy that has since been voided by the court. The agreement, which still has to be approved by the judge overseeing the case, would see the National Institutes of Health restart reviews of grants that had been blocked on ideological grounds. It doesn’t guarantee those grants will ultimately be funded, but it does mean they will go through the standard peer review process.

The grants had previously been rejected without review because their content was ideologically opposed by the Trump administration. That policy has since been declared arbitrary and capricious, and thus in violation of the Administrative Procedure Act, a decision that was upheld by the Supreme Court.

How’d we get here?

Immediately after taking office, the Trump Administration identified a number of categories of research, some of them extremely vague, that it would not be supporting: climate change, DEI, pandemic preparedness, gender ideology, and more. Shortly thereafter, federal agencies started cancelling grants that they deemed to contain elements of these disfavored topics, and blocking consideration of grant applications for the same reasons. As a result, grants were cancelled that funded everything from research into antiviral drugs to the incidence of prostate cancer in African Americans.

Researchers whose funding was affected, along with organizations that represented them, sued. The suit ended up split into two partly overlapping cases: one for the people who already had funding and saw it cancelled, another for researchers who had submitted grants and had them pulled from consideration.

The case regarding cancelled grants moved relatively quickly. By June, a District Court judge declared that the federal policy “represents racial discrimination” and issued a preliminary order that would have seen all the cancelled grants restored. In his written opinion, Judge William Young noted that the government had issued its directives blocking DEI support without even bothering to define what DEI is, making the entire policy arbitrary and capricious, and thus in violation of the Administrative Procedure Act. He voided the policy, and ordered the funding restored.

His decision eventually ended up before the Supreme Court, which issued a ruling in which a fragmented majority agreed on only a single issue: Judge Young’s District Court was the wrong venue to hash out issues of government-provided money. Thus, restoring the money from the cancelled grants would have to be handled via a separate case filed in a different court.

Critically, however, this left the other portion of the decision intact. Young’s determination that the government’s anti-DEI, anti-climate, anti-etc. policy was illegal and thus void was upheld.

Restoring reviews

That has considerable consequences for the second part of the initial suit, involving grants that were not yet funded and blocked from any consideration by the Trump Administration policy. With that policy voided, there was no justification for the National Institutes of Health (NIH) failing to have considered the grants when they were submitted. But, in the meantime, deadlines had expired, pools of money had been spent, and in some cases the people who submitted the grants had aged out of the “new investigator” category they were applying under.

The proposed settlement essentially resets the clock on all of this; the blocked grants will be evaluated for funding as if it were still early 2025. “Defendants stipulate and agree that the end of Federal Fiscal Year 2025 does not prevent Defendants from considering and/or awarding any of the Applications,” it states. Even if the Notice of Funding Opportunity has since been withdrawn, the grant applications will be sent off for peer review.

Everything will happen on a rapid timeline. Formalities like automatic renewals or extensions of existing grants will be handled as soon as the settlement is approved (the deadline for that is listed as December 29, the day the settlement was filed with the court). Those that have already been through peer review will have funding decisions made by January 12, and those needing a full peer review process will be handled by mid-April.

The government agrees to evaluate each of the grants “in good faith,” while the researchers accept that “Nothing in this stipulation commits NIH to ultimately award any specific Application.” That leaves the door open for future legal disputes regarding how well the NIH upheld its good faith. And there are two other counts in the original suit that are not resolved by this agreement. Both of these also involve violations of the Administrative Procedure Act (the researchers won under the arbitrary and capricious standard, but also allege the government’s actions weren’t in accordance with additional statutes governing the NIH).

The parties did agree, however, that this settlement doesn’t constitute a “final agency action,” language that means it’s not subject to further evaluation under the Administrative Procedures Act.

Given that the policy it relied on to block review of these grants had been voided in a case that had already been considered by the Supreme Court, it’s understandable that the government is agreeing to this settlement. It does, however, put a lot of pressure on the NIH to organize the peer review of these proposals on a tight schedule, especially given that the grants at issue are likely to involve a lot of unrelated topics, and thus can’t be handled by a single panel of experts. Getting that done while maintaining an “in good faith” standard may prove a significant challenge.

John is Ars Technica’s science editor. He has a Bachelor of Arts in Biochemistry from Columbia University, and a Ph.D. in Molecular and Cell Biology from the University of California, Berkeley. When physically separated from his keyboard, he tends to seek out a bicycle, or a scenic location for communing with his hiking boots.