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Comment by XCabbage | Hacker News Reader

A point made deep in a comment thread by user "rck" below deserves to be a top-level comment - the clawback clause explicitly applies ONLY to violations of existing law:

> NSF reserves the right to terminate financial assistance awards and recover all funds if recipients, during the term of this award, operate any program in violation of Federal antidiscriminatory laws or engage in a prohibited boycott.

So there's no plausible way that agreeing to these terms would have contractually bound PSF in any way that they were not already bound by statute. Completely silly ideological posturing to turn down the money.

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And if someone at the NSF decides to terminate the grant & 'recover all funds', does the dispute over the contract involve the same burden of proof and rights to appeal as a federal discrimation case?

Someone wrote it into the grant agreement. It's a fair bet that they think that has some effect beyond what the law already achieves.

The burden of proof is "on the balance of probabilities" in both cases as far as I know, and there's no limit in principle on how high a breach of contract case can be appealed.

Of course it has an effect, but that effect is giving the NSF the ability to sue over a grantee's alleged breaches of discrimination law, instead of that being limited to parties discriminated against and the EEOCs.

Why was the clause included if it's completely redundant? PSF's decision is based on the government's demonstrated track record of what they consider to be "illegal DEI", not what the law actually says. Grant cancellations have been primarily based on a list of banned words (https://www.urban.org/urban-wire/nsf-has-canceled-more-1500-...), and of course nobody involved with any of the thousands of cancelled grants has been charged with breaking a law, because they haven't broken any.

Here's a list of math grants identified by the Senate to be DEI-related because they contained strings like "homo" and "inequality": https://www.reddit.com/r/math/comments/1ioo2x9/database_of_w...

Here's the actual list of NSF cancelled grants: https://www.nsf.gov/updates-on-priorities#termination-list. You can also explore the data at https://grant-witness.us/nsf-data.html. There are 1667 in there, so I'll just highlight a couple and note the "illegal DEI":

- Center for Integrated Quantum Materials

- CAREER: From Equivariant Chromatic Homotopy Theory to Phases of Matter: Voyage to the Edge

- Remote homology detection with evolutionary profile HMMs

- SBIR Phase II: Real-time Community-in-the-Loop Platform for Improved Urban Flood Forecasting and Management

- RCN: Augmenting Intelligence Through Collective Learning

- Mechanisms for the establishment of polarity during whole-body regeneration

- CAREER: Ecological turnover at the dawn of the Great Ordovician Biodiversification Event - quantifying the Cambro-Ordovician transition through the lens of exceptional preservation

When the federal government cancels your grant and claws back money you've already spent because they claim something innocuous is illegal, knowing in your heart that they're wrong is not very helpful.

> Why was the clause included if it's completely redundant?

It's not and I didn't suggest it was. It gives the NSF itself the ability to litigate discrimination by grantees (in order to claw back its funds) instead of only the people discriminated against and the EEOC being able to do that. That's a real effect! But it doesn't impose any new obligations whatsoever on PSF - just changes the recourse mechanism if PSF violates legal obligations they already had.

> When the federal government cancels your grant and claws back money you've already spent because they claim something innocuous is illegal

As far as I know this has not happened in any of the cases you mention and _could_ not happen. Yes, grants have been cancelled for dumb reasons, but nothing has been clawed back. Right? What would the mechanism for clawing back the money without a lawsuit even be?

I don't know if they've attempted to claw back any NSF grants yet, but they have done this with EPA grants. There was no lawsuit, they just ordered banks to freeze the funds and the banks complied: https://www.eenews.net/articles/epa-green-bank-recipients-lo...

Hmm. That'd be pretty nasty to be on the receiving end of (and may well have been an outrageous abuse of executive power), but still, an administrative freeze is temporary and is not in itself a clawback. Even if it was a certainty this would happen to PSF, it would still be worth it for $1.5 million!

It was not temporary. The victims spent substantial amounts of money suing and still lost: https://www.eenews.net/articles/appeals-court-says-epa-can-r.... Technically litigation is ongoing but there is no reason to believe they will succeed.

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