In 1974, Terri Lee Halderman filed suit in federal district court against Pennhurst School and Hospital, a state-run institution established to care for Pennsylvania’s mentally ill population. Halderman, who had suffered more than forty injuring-causing incidents over the previous seven years while at Pennhurst, alleged that conditions at the institution violated her constitutional rights under the Eighth and Fourteenth Amendments, as well as under applicable federal and state statutes. The district court agreed. In its decision, the court concluded that conditions at Pennhurst were “not only dangerous, with the residents often physically abused or drugged by staff members,” but also inadequate to provide the legally required minimum standard of care. The Court granted a wide-ranging injunction that required Pennsylvania to provide new living arrangements for current and future Pennhurst residents.
On appeal, the U.S. Supreme Court did not dispute the substantive conclusion that Pennhurst “as an institution is inappropriate and inadequate.” Yet the Court determined that a procedural issue nonetheless prevented it from affirming the district court’s injunction to the extent it was based on state, and not federal, law. Acknowledging that the district court had the authority to enjoin state officials to comply with federal law under the Ex parte Young doctrine, the Court concluded that doing so on the basis of state law violated the Eleventh Amendment. The Pennhurst decision effectively forced future civil rights plaintiffs bringing federal and state law claims to pursue separate, parallel lawsuits in two separate forums. The upshot has been added costs, delays, and complexity for marginalized plaintiffs seeking to vindicate their rights.
Fast forward fifty years, and the Supreme Court has recently endorsed yet another form of two-track justice. This past April, in National Institute of Health (NIH) v. American Public Health Ass’n (APHA), several groups challenged the abrupt cancellation of NIH research grants involving disfavored topics or populations. Following a growing trend, while the plaintiffs prevailed in District Court, the Supreme Court largely bailed out the Trump Administration. In August, the Court issued a partial stay, concluding that district courts likely lack jurisdiction to hear challenges to already-effectuated grant terminations because such claims must instead be brought in the Court of Federal Claims.
At the same time, the Court concluded that federal district courts are the proper forum for grant termination-related non-monetary claims, such as suits seeking injunctive relief under the Administrative Procedure Act. Justice Barrett, who cast the deciding vote, acknowledged that the Court’s holding would necessitate “[t]wo-track litigation” in these cases, requiring “plaintiffs to file two actions in different courts to obtain complete relief in connection with one set of facts.”
Weaponizing Procedure to Prevent Access
The Court’s decision to mandate sequential lawsuits based on the same facts in different forums will ultimately prevent plaintiffs from attaining adequate relief from illegal government action.
This is particularly true given that our federal courts system is already seriously overburdened. Congress has not passed comprehensive legislation to increase the number of federal judges in three decades; meanwhile, the federal courts have seen a 30 percent growth in their caseloads. As the Federal Bar Association has explained, these circumstances have “contributed to profound delays in the resolution of cases and serious access to justice concerns.”
To address these concerns, at the end of 2024 Congress enacted the bipartisan Judicial Understaffing Delays Getting Emergencies Solved (“JUDGES”) Act, which would have created additional judgeship positions in key overtaxed districts. In one of President Biden’s final acts in office, however, he vetoed the legislation, criticizing it as a “hurried action” that failed “to resolve key questions” about how to allocate new judgeships and handle open judicial vacancies.
As Justice Jackson points out, the consequences of NIH v. APHA’s two-track approach for litigants seeking to address unlawful grant terminations will be grave. Forcing litigants to file multiple, duplicative lawsuits in a federal judicial system that is already stretched too thin will mean that “yearslong studies will lose validity. Animal subjects will be euthanized. Life-saving medication trials will be abandoned. Countless researchers will lose their jobs. And community health clinics . . . will close.”
These procedural problems are exacerbated by the fact that President Trump, making good on his campaign promises, is intentionally attempting to reverse the consensus that life in the United States is lived disparately based on one’s racial and gender identities.
That this disparate impact extends to scientific research and medical care has been well-documented and, until recently, explicitly acknowledged throughout the country. For example, here in New York City, in 2018, a statue of J. Marion Sims, the “Father of Gynecology,” was removed from Central Park in recognition of the fact that he experimented extensively on Black women whom he owned as slaves. Many are now also familiar with the horrific legacy of the Tuskegee Syphilis Study in which Black men with syphilis were left untreated by the federal government in order to study the progression of the disease. Perhaps lesser known is the fact that the United States government worked throughout the first half of the 20th century to sterilize one-third of child-bearing-age women living in the American colonial holding of Puerto Rico, while also testing an experimental version of the modern birth control pill on the island.
Thanks to racial justice activists and scholars who have brought this troubling history into sharp focus, the federal government had previously committed itself to providing funding to projects that sought to address these historic wrongs and their ongoing consequences. However, through the funding terminations at the center of NIH v. APHA, the Trump administration now seeks to obscure and reinforce the racist and sexist underpinnings of the American scientific and medical regimes. This fact was clear to the district court, which noted that the grant cancellations at issue contained “an unmistakable pattern of discrimination against women’s health issues” and “pervasive racial discrimination.”
As in Pennhurst, where procedural hurdles harmed marginalized plaintiffs seeking to vindicate their rights in the face of illegal government action, NIH v. APHA’s approach will have a similar downstream effect. For instance, of the various NIH institutes affected, the National Institute of Mental Health had the highest number of grants terminated. Additionally, many of the terminated grants are traceable to righting the historical wrongs of the American scientific and medical regimes outlined above. These include a study of Black sexual minority men living with HIV, a study of the medical mistrust that exists in racial minority groups, and a project aiming to eliminate the disparate medical care received in rural Puerto Rico, among others.
Taking the Fight Beyond the Courts
In spite of this latest judicial setback, not all hope is lost for those who depend on grants from the federal government. The solution, however, lies outside of the court system.
This reality was on display in the saga of the nearly seven billion dollars in Elementary and Secondary Education Act (ESEA) funds that the Trump administration attempted to freeze over the summer. Although various school districts, labor unions, and state attorneys general brought suit against the federal government, the disbursement of the ESEA funds was ultimately secured when a number of Republican Senators decided to break with Trump on the issue. This politicking underscores that Trump cannot successfully pursue many of his policies without the buy-in of Republicans in Congress. After all, despite Trump’s determined attempts to assert otherwise, Congress still has the constitutional power of the purse.
While advocates were able to persuade Congressional Republicans to break with Trump on the ESEA funds, they will likely fare less well when it comes to “culture war” issues, such as the anti-DEI underpinnings of the grant terminations at issue here. Affected parties must therefore also pursue other political avenues.
For example, organized labor and broader civil society need to act outside of the legal process to pressure the administration to refrain from irrevocably reversing the progress made toward equity, especially in medicine and science. This could take the form of strikes, boycotts, or other types of disruptive activity that make Trump’s actions more costly and ultimately untenable. This was the strategy of the civil rights movement whose gains are under assault today. Unless movement organizing is prioritized alongside litigation strategy, those most affected by the Trump Administration’s grant terminations won’t obtain relief in the wake of NIH v. APHA.
