In an opinion filed on Thursday, Judge McMahon granted summary judgment to plaintiffs on their claims that the Government’s April 2025 mass termination of more than 1,400 National Endowment for the Humanities (“NEH”) grants was unconstitutional and ultra vires (see our prior coverage here). The court described a glaring departure from NEH’s established grant‑review process, under which officials affiliated with the Department of Government Efficiency (“DOGE”) directed that grants issued during the Biden Administration be reviewed for purported connections to subjects such as “diversity, equity, and inclusion” (“DEI”), “environmental justice,” and “gender ideology.” The court found that DOGE officials “exercised decisive authority over the selection and termination of NEH grants” absent statutory authority.
In concluding that the mass termination violated the First Amendment, Judge McMahon found that the Government engaged in unconstitutional viewpoint discrimination because the termination decisions were driven by an “expressly ideological method of classification.” The court further found that DOGE relied heavily on ChatGPT to generate “DEI rationales,” submitting cursory grant descriptions and prompting the tool to determine whether each project related to DEI, accompanied by a short explanation. The court rejected Defendants’ characterization of ChatGPT as an “intermediary step,” finding instead that “DOGE selected the AI tool, formulated the prompt, and defined the operative viewpoint-based criterion.” There was no “meaningful review of whether that rationale made sense.”
The Government suggests that there is no real constitutional problem here because any viewpoint-based classification was ChatGPT’s doing, rather than the Government’s. See Dkt. No. 278, Defs.’ Mem. L. Opp’n to Pls.’ Mot. for Summ. J., at 38–40 (“Fox only used ChatGPT ‘[t]o look at the . . . full grant descriptions and bring out the context of which a DEI grant may relate’ and to ‘inform DEI rationale.’”). That argument brings to mind, for someone of my generation, the great comedian Flip Wilson, whose character “Geraldine Jones” would excuse her behavior by saying, “The devil made me do it.” That excuse did not work for Geraldine Jones, and it does not work for the Government. There is no distinction to be drawn here between the Government and ChatGPT. ChatGPT was the Government’s chosen instrument for purposes of this project, and DOGE’s use of AI to identify DEI-related material neither excuses presumptively unconstitutional conduct nor gives the Government carte blanche to engage in it.