Constitutionality of the National Science Foundation's STEM Programs

(Slip Opinion) Constitutionality of the National Science Foundation’s STEM Programs Certain race- and sex-based programs administered by the National Science Foundation violate the Constitution’s equal-protection guarantee. August 12, 2026 MEMORANDUM OPINION FOR THE GENERAL COUNSEL NATIONAL SCIENCE FOUNDATION “Racial discrimination is invidious in all contexts.” Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2166 (2023) (“SFFA”) (cleaned up). It “demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit.” Id. at 2170 (citation omitted). And while sex, unlike race, can sometimes serve as “a legitimate, accurate proxy” for certain legislative ends, Craig v. Boren, 429 U.S. 190, 204 (1976), it often “provides no sensible ground for differential treatment,” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). Consistent with the Constitution’s equal-protection guarantee, this Office recently reviewed federal programs that discriminate based on race and sex. We concluded that certain Department of Education programs allocating grants and preferences based on race were unconstitutional. See Constitutionality of Race-Based Department of Education Programs, 49 Op. O.L.C. __ (Dec. 2, 2025) (“Race-Based Education Programs”). And we found unconstitutional a Department of Agriculture fee waiver that conferred “special favor based on race and sex without satisfying either strict or heightened scrutiny.” Department of Agriculture Preferences for “Socially Disadvantaged” Groups, 50 Op. O.L.C. __, at *24 (June 22, 2026) (“USDA Preferences”). The National Science Foundation (“NSF” or “Foundation”) administers several STEM education programs that allocate federal funding based on race or sex. You have asked whether nine programs violate the Constitu- tion’s equal-protection promise and whether NSF may reprogram funds from any unconstitutional programs. See Letter for T. Elliot Gaiser, Assis- tant Attorney General, Office of Legal Counsel, from Angela R. Williams, General Counsel, National Science Foundation (May 8, 2026) (“NSF 1  50 Op. O.L.C. __ (Aug. 12, 2026) Letter”); see also E-mail for Josh Craddock, Deputy Assistant Attorney General, Office of Legal Counsel, from William S. Grant II, Assistant General Counsel, National Science Foundation, Re: [EXTERNAL] RE: Inquiry from US National Science Foundation OGC (July 10, 2026, 10:12 AM). We conclude that three programs—the Improving Undergraduate STEM Education: Hispanic-Serving Institutions program, the Alliances for Graduate Education and the Professoriate program, and the Louis Stokes Alliances for Minority Participation program—are unconstitutional in their entirety. NSF may not reprogram the funds appropriated for these programs, but the suballocation for each is unconstitutional as applied, permitting NSF to treat the allocated amounts as residual funds within the STEM education lump-sum appropriation. The remaining six programs are either constitutional or contain severable race- or sex-based elements. NSF may continue to administer those programs provided that it does not implement or enforce the unconstitutional provisions. We summarize our conclusions as to each program in the following table: Unconstitutional Unconstitutional and Constitutional but severable criteria inseverable criteria • Tribal Colleges • Advanced • Improving and Universities Technological Undergraduate Program Education STEM Education: Hispanic-Serving • Graduate Research • ADVANCE Program Institutions Fellowship Program • Alliances for Graduate Education and the • Advancing Professoriate Informal STEM Learning • Louis Stokes Alliances for Minority • Robert Noyce Participation Teacher Scholarship Program 2  Constitutionality of the National Science Foundation’s STEM Programs I. Congress established NSF in 1950 to create and administer scientific research and education programs in STEM disciplines. 42 U.S.C. § 1862(a)(1); see also National Science Foundation Act of 1950, Pub. L. No. 81-507, 64 Stat. 149 (“NSF Act”). Congress empowered NSF to award “scholarships and graduate fellowships for study and research in the sciences or in engineering” and to make “contracts or other arrange- ments (including grants, loans, and other forms of assistance) to support such scientific, engineering, and educational activities.” 42 U.S.C. § 1862(a)(2), (1). Certain statutory provisions more specifically address NSF’s STEM education programs. Several require (or potentially require) NSF to allocate funding based on race or sex. Until recently, NSF exercised broad discretion in allocating STEM education appropriations across its programs. Congress funded STEM education activities through a lump-sum appropriation without any program-specific spending requirements. See, e.g., Pub. L. No. 117-328, 136 Stat. 4459, 4550 (2022); Pub. L. No. 118-83, 138 Stat. 1524 (2024) (continuing resolution). Congress ostensibly limited that discretion in early 2026. “For the first time in recent years,” NSF Letter at 1, the annu- al appropriation required NSF to spend certain amounts on enumerated STEM programs—some of which include race- and sex-based criteria. See Science Appropriations Act, 2026, Pub. L. No. 119-74, div. A, tit. III, 140 Stat. 40, 45 (“Science Appropriations Act”). Of the nearly $1 billion appropriated for STEM education, NSF must allocate “not less than” the following amounts, id., for each program: 3  50 Op. O.L.C. __ (Aug. 12, 2026) 172 Cong. Rec. H266 (daily ed. Jan. 8, 2026); see also Pub. L. No. 119- 74, § 4, 140 Stat. at 5–6. You have asked whether NSF may administer programs containing race- or sex-based criteria. See NSF Letter at 3. “Given NSF’s obligation to spend its 2026 budget,” id. at 2, you have also asked whether the Foun- dation “may reprogram funds for programs which cannot be carried out consistent with” the Constitution’s equal-protection guarantee, id. at 1. II. Under “our colorblind Constitution,” Allen v. Milligan, 146 S. Ct. 1377, 1380 (2026) (per curiam), “[a]ny allocation of benefits and burdens based on a person’s race is anathema,” Race-Based Education Programs at *2. For that reason, “the Constitution almost never permits the Federal Gov- ernment or a State to discriminate on the basis of race.” Louisiana v. Callais, 146 S. Ct. 1131, 1152 (2026). And while “real biological differ- ences between men and women” can sometimes justify sex-based classifi- cations, USDA Preferences at *8, “sex-based lines too often reflect stereo- types or overbroad generalizations about the differences between men and women,” United States v. Skrmetti, 145 S. Ct. 1816, 1828 (2025). Our Office recently expounded upon the legal standards that guide our review of race- and sex-based government action. See Race-Based Education Programs at *2–13; USDA Preferences at *8–11. We therefore offer here only a brief summation of the relevant standards. We begin with (A) the contours of strict scrutiny, turn to (B) the complexities of equal-protection doctrine as applied to Indians, address (C) intermediate scrutiny for sex-based classifications, and conclude by (D) describing the severability framework. 4  Constitutionality of the National Science Foundation’s STEM Programs A. Because racial distinctions “are by their very nature odious to a free people,” Callais, 146 S. Ct. at 1153 (citation omitted), the strict scrutiny standard of review applies whenever the federal government adopts a racial classification, Race-Based Education Programs at *4; see also Johnson v. California, 543 U.S. 499, 505–06 (2005). That “daunting” two-step test, SFFA, 143 S. Ct. at 2162 (citation omitted), permits such classifications only if they “further compelling governmental interests” and are strictly necessary to achieve those interests. Race-Based Educa- tion Programs at *4 (citation omitted). There are “only two compelling interests” that justify “race-based gov- ernment action,” one of which is relevant here: “remediating specific, identified instances of past discrimination that violated the Constitution or a statute.” SFFA, 143 S. Ct. at 2162; accord Callais, 146 S. Ct. at 1152. 1 The government “must identify the specific instances of past discrimina- tion that it aims to remediate” and define the injury to be remedied; it has “no compelling interest in generally remediating ‘past discrimination’” or societal disparities. Callais, 146 S. Ct. at 1152–53 (citation omitted). Mere “statistical disparities don’t cut it.” Race-Based Education Pro- grams at *7 (cleaned up). After identifying specific episodes of discrimi- nation, the government must also possess “‘a strong basis in evidence’ to conclude” that race-based action is “necessary” to remedy the violation. Callais, 146 S. Ct. at 1153 (citation omitted). Even when a compelling interest exists, narrow tailoring imposes an “extraordinarily onerous” burden. Id. at 1161 (citation omitted). The government must show that racial distinctions are “necessary” to achieving its purpose. Race-Based Education Programs at *7 (quoting SFFA, 143 S. Ct. at 2162). Relevant considerations include whether the program: (1) operates flexibly rather than as “a per se unconstitutional quota”; (2) reflects genuine consideration of “workable race-neutral alternatives”; (3) has “definite duration” and “undergoes ‘periodic re- view’”; (4) employs “‘arbitrary or undefined’ racial categories”; and (5) “minimize[s] the burden on other racial groups.” Id. at *7–8 (citations 1 The other compelling interest, irrelevant here, is “avoiding imminent and serious risks to human safety in prisons, such as a race riot.” Callais, 146 S. Ct. at 1152 (citation omitted). 5  50 Op. O.L.C. __ (Aug. 12, 2026) omitted). Racial classifications used “to allocate zero-sum benefits” are subject to additional skepticism. Id. at *8; see also SFFA, 143 S. Ct. at 2168–69. In all but “the most extraordinary case,” SFFA, 143 S. Ct. at 2163, strict scrutiny of racial classifications is “automatically fatal,” Race-Based Education Programs at *47 (citation omitted). B. “Equal-protection questions are especially nuanced” when federal pref- erences involve “Indian tribes and other native peoples.” Id. at *8. The challenge there is distinguishing between political classifications tied to tribal sovereignty (which are subject to rational-basis review) and racial classifications tied to ethnicity (which are subject to strict scrutiny). See id. at *9–10 (citing Morton v. Mancari, 417 U.S. 535, 553–54 (1974)). Preferences tied to the “government-to-government relationship . . . between the United States and recognized Indian tribes” fall within the Mancari exception to strict scrutiny. Id. at *9. But preferences based solely on Indian ethnicity, without a meaningful connection to sovereign- ty, constitute racial classifications that are subject to strict scrutiny. See id. at *9–13. Two factors guide that distinction. “First, the distinction must be drawn based on membership, citizenship, or a similar affiliation in a federally recognized political entity.” Id. at *10. Preferences for Alaska Natives may satisfy this requirement when tied to affiliation with “‘federally recognized Alaska Native villages’ . . . listed on the Department of the Interior registry of recognized Native entities.” Id. at *11 (citation omit- ted). By contrast, Native Hawaiian or Native Pacific Islander classifica- tions cannot satisfy this requirement because there are “no federally recognized Native Hawaiian or Native Pacific Islander political entities with which the United States has maintained a government-to-government relationship.” Id. “Second, we consider whether the preference involves uniquely Indian interests—such as Indian lands, treaties, and political institutions—or whether the program merely includes Indians along the way to broader purposes that overshoot Congress’[s] unique obligation toward the Indi- ans.” Id. at *12 (cleaned up). Many preferences for tribal members in- volve an ancestry component, so the involvement of Indian ancestry does not categorically render a preference for tribal members unlawful. See 6  Constitutionality of the National Science Foundation’s STEM Programs United States v. Antelope, 430 U.S. 641, 645 (1977). Were it otherwise, Mancari would be a dead letter, because “even when federal classifica- tions turn solely on formal tribal citizenship, tribal citizenship laws typi- cally include an ancestry component.” 1 Cohen’s Handbook of Federal Indian Law § 17.03[2][b][ii] (2024 ed.) (“Cohen’s”). But “[a]ncestry” can also operate as an impermissible “proxy for race” in the pursuit of general policy goals. Rice v. Cayetano, 528 U.S. 495, 514 (2000). Identifying the “uniquely Indian interests” served by the legisla- tion—that is, the nexus to interests such as treaty rights, “Indian land[s], tribal status, self-government[,] or culture”—helps to ensure that any “preferential treatment for Indians” remains directly and principally “linked to the distinctive status of Indian political institutions.” Race- Based Education Programs at *12 (citations omitted). Such identification guards against pretextual classifications based on tribal membership by confirming that a classification in substance reflects the government’s special obligations toward these quasi-sovereign entities rather than serving some other, proscribed purpose. Cf. Haaland v. Brackeen, 143 S. Ct. 1609, 1628 (2023) (discussing Congress’s legislative power over Indian affairs). A preference—even for tribal members—fails this factor when, for example, its primary purpose is to achieve a generalized interest in racial or ethnic diversity. See Race-Based Education Programs at *24. Such purposes “do not relate to distinct federal obligations to Indians.” Id. (cleaned up). C. Sex-based classifications must survive intermediate scrutiny (some- times also called “heightened scrutiny”). See USDA Preferences at *8–11. To meet this standard, “the government ‘must show at least that the chal- lenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.’” Id. at *9–10 (quoting United States v. Virginia, 518 U.S. 515, 533 (1996)); accord West Virginia v. B.P.J., 146 S. Ct. 2356, 2374 (2026). “Under this standard, sex-based preferences in government programs will not easily satisfy equal protection’s requirements.” USDA Prefer- ences at *10. “[M]ere findings of disparity” are insufficient. Id. (quoting Constitutionality of Federal Government Efforts in Contracting With 7  50 Op. O.L.C. __ (Aug. 12, 2026) Women-Owned Businesses, 32 Op. O.L.C. 23, 25 (2008) (“Women-Owned Businesses”)). The government must identify “genuine and non- hypothetical evidence of discrimination” within the relevant “economic sphere.” Id. (citation omitted). Once specific episodes of relevant discrim- ination are identified, three factors govern the substantial-relation analy- sis. First, the sex-based means must effectively serve the posited end. See id. Second, the program must be tailored to further that end, though not as narrowly as for strict scrutiny. See id.; see also id. at *8. Third, “the existence of sex-neutral alternatives” generally defeats “a sex-based distinction.” Id. at *10–11. D. Unconstitutional race- or sex-based eligibility criteria can sometimes be severed from a program’s “unobjectionable provisions.” El Paso & N.E. Ry. Co. v. Gutierrez, 215 U.S. 87, 96 (1909). We presume severability unless “the remaining portions of the statute either cannot function inde- pendently . . . or ‘would not function in a manner consistent’ with Con- gress’s intent.” Constitutionality of the Presidential Records Act, 50 Op. O.L.C. __, at *50 (Apr. 1, 2026) (citation omitted); see also Race-Based Education Programs at *14. This presumption is rebutted when severance would “confer unfettered discretion on the President without sufficient criteria to guide him,” thus rendering the remaining delegation “so broad” that “‘Congress would have been unwilling to make the delegation’ absent the severed criteria.” Race-Based Education Programs at *14 (quoting Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 685 (1987)). III. We now apply these principles to NSF’s programs. Our analysis pro- ceeds in four parts. First, we conclude that NSF may continue to adminis- ter the Tribal Colleges and Universities Program, which falls within the Mancari exception to strict scrutiny. Next, we discuss three programs that do not require NSF to consider race or sex; NSF must administer those programs in a race- and sex-neutral fashion. Third, we address two pro- grams that contain unconstitutional-yet-severable sex-based preferences, allowing NSF to administer programs in a sex-neutral manner. Finally, we identify three programs that NSF may not administer whatsoever due to their unconstitutional, inseverable criteria. 8  Constitutionality of the National Science Foundation’s STEM Programs A. NSF provides awards to tribal colleges and universities (“TCUs”) through its Tribal Colleges and Universities Program (“TCUP”). See Pub. L. No. 111-358, § 525, 124 Stat. 3982, 4019 (2011) (codified as amended at 42 U.S.C. § 1862p-13). In general, a TCU is “an institution of higher education which is formally controlled, or has been formally sanctioned, or chartered, by the governing body of an Indian tribe or tribes.” 25 U.S.C. § 1801(a)(4); see also 42 U.S.C. § 1862p-13(a); 20 U.S.C. § 1059c(b)(3). The TCUP definition also covers Alaska Native- and Native Hawaiian-serving institutions. See 42 U.S.C. § 1862p-13(a); 20 U.S.C. § 1059d. An Alaska Native-serving institution must have “an enrollment of undergraduate students that is at least 20 percent Alaska Native students.” 20 U.S.C. § 1059d(b)(2)(B). And an Alaska Native is any “citizen of the United States who is a person of one-fourth degree or more Alaska Indian . . . Eskimo, or Aleut blood, or combination thereof,” or “in the absence of proof of a minimum blood quantum, any citizen of the United States who is regarded as an Alaska Native by the Native village or Native group of which he claims to be a member and whose father or mother is (or, if deceased, was) regarded as Native by any vil- lage or group.” 43 U.S.C. § 1602(b); see also 20 U.S.C. § 7546(1). A Native Hawaiian-serving institution must have “an enrollment of under- graduate students that is at least 10 percent Native Hawaiian students.” 20 U.S.C. § 1059d(b)(4)(B). In 2022, Congress directed NSF to make additional computer-science awards to TCUs. See Pub. L. No. 117-167, § 10525(a), 136 Stat. 1366, 1625–26 (codified at 42 U.S.C. § 1862p-13(d)). These awards “bring computer science and computational thinking courses and degrees to [TCUs],” provide for the “development of instructional materials needed to integrate computer science and computational thinking into programs that are culturally relevant to students attending [TCUs],” and supply “research, development[,] and evaluation of distance education for com- puter science and computational thinking courses and degree programs for students attending [TCUs].” 42 U.S.C. § 1862p-13(d)(2)(A)–(C). The statute further says that it is intended “to increase the participation of Tribal populations in computer science and computational thinking educa- tion programs.” Id. § 1862p-13(d)(1). 9  50 Op. O.L.C. __ (Aug. 12, 2026) You have asked about several TCUP features, including whether its cross-reference to Alaska Native- and Native Hawaiian-serving institu- tions is severable and whether its reference to “Tribal populations” creates a race-based eligibility restriction. See NSF Letter at 5. We first discuss the status of TCUs; support for those institutions satisfies equal-protection requirements. We then address Alaska Native- and Native Hawaiian- serving institutions and consider the reference to “Tribal populations” in the computer-science subsection. Each issue is amenable to a saving construction that preserves the program’s constitutionality. 1. Federal law recognizes the importance of tribal sovereignty in educa- tion, declaring a national policy “to facilitate Indian control of Indian affairs in all matters relating to education.” 25 U.S.C. § 2011(a). TCUs developed to meet this need when “traditional colleges were . . . too geographically and culturally distant” to be accessible to many Indian students. 1 Cohen’s § 23.03[2][e][i]. In 1969, the Navajo Nation became the first to establish a tribally controlled college. Id. Other tribes fol- lowed, but their institutions “struggl[ed] to continue without stable fund- ing.” Id. Congress responded with the Tribally Controlled Community College Assistance Act of 1978, later renamed the Tribally Controlled College or University Assistance Act (“TCCUAA”). See Pub. L. No. 95-471, 92 Stat. 1325; Pub. L. No. 105-244, § 901(b)(1), 112 Stat. 1581, 1827 (1998). In Congress’s view, supporting tribal colleges was “part of its responsibility to provide for Indian education and to compensate for the lack of the state and local property taxes that typically support community colleges.” 1 Cohen’s § 23.03[2][e][i]. More broadly, TCUs were—and remain—“a means to further the broader federal and tribal goals of tribal self- determination.” Id. This purpose is reflected in the statutory definition of TCU, which refers to “an institution of higher education which is formally controlled, or has been formally sanctioned, or chartered, by the govern- ing body of an Indian tribe or tribes.” 25 U.S.C. § 1801(a)(4). TCUs need not admit non-Indian students, but in practice, “they do so in large num- bers.” 1 Cohen’s § 23.03[2][e][i]. There are currently 35 accredited TCUs in the United States. See Tribal Colleges and Universities Directory, Bur. of Indian Affs. (updated Aug. 19, 2025), https://perma.cc/QK85-4AP2. 10  Constitutionality of the National Science Foundation’s STEM Programs Awards to TCUs fit within the Mancari exception to strict scrutiny. Such financial assistance is “linked to the quasi-sovereign, government- to-government relationship” with recognized tribes and is “rooted in the unique status of Indians as ‘a separate people’ with their own political institutions.” Race-Based Education Programs at *9 (quoting Antelope, 430 U.S. at 646). Just as state colleges and universities are often instru- mentalities of sovereign states, see, e.g., Mungai v. Univ. of Minn., 141 F.4th 959, 966 (8th Cir. 2025); Maliandi v. Montclair State Univ., 845 F.3d 77, 86 (3d Cir. 2016), so too are TCUs generally considered arms or agencies of Indian tribes, see, e.g., Hagen v. Sisseton-Wahpeton Cmty. Coll., 205 F.3d 1040, 1043 (8th Cir. 2000); Smith v. Salish Kootenai Coll., 434 F.3d 1127, 1135 (9th Cir. 2006) (en banc). Tribes exercise a measure of sovereignty and self-determination through TCUs, and provid- ing awards to such institutions furthers the federal government’s unique responsibilities toward Indians. Awards to TCUs—institutions controlled or chartered by tribes—are even more directly related to the government- to-government relationship between the federal government and tribal institutions than the Bureau of Indian Affairs hiring preferences upheld in Mancari. See 417 U.S. at 553–54. Awards to TCUs also illustrate the work done by the “uniquely Indian interests” factor of our analysis. See Race-Based Education Programs at *12 (citation omitted). In general, the government cannot limit award eligibility to institutions based on their racial composition (or the racial composition of those who control the institution). See id. at *20; Grutter v. Bollinger, 539 U.S. 306, 334 (2003); Vitolo v. Guzman, 999 F.3d 353, 363 (6th Cir. 2021) (concluding that a “requirement that a business must be at least 51% owned by women or minorities” fails narrow tailoring). But in certain circumstances, “‘the unique legal status of Indian tribes under federal law’ permits the Federal Government to enact legislation singling out tribal Indians, legislation that might otherwise be constitu- tionally offensive.” Washington v. Confederated Bands & Tribes of the Yakima Indian Nation, 439 U.S. 463, 500–01 (1979) (citation omitted). TCUs fall within that exception due to their unique status as tribal instru- mentalities, even though they may be controlled by tribes that limit mem- bership based on ancestry. Federal support for TCUs rationally furthers tribal self-determination and directly supports tribal institutions. See 1 Cohen’s § 23.03[2][e][i]. 11  50 Op. O.L.C. __ (Aug. 12, 2026) 2. The TCUP statute also defines TCUs to include Alaska Native- and Na- tive Hawaiian-serving institutions, cross-referencing definitions we ad- dressed in our Race-Based Education Programs opinion. See 42 U.S.C. § 1862p-13(a); 20 U.S.C. § 1059d(b); NSF Letter at 5. There, we con- cluded that the definitions of Alaska Native- and Native Hawaiian-serving institutions were race classifications not subject to Mancari, because the classifications were not limited to those affiliated with federally recog- nized tribes or villages. See Race-Based Education Programs at *22–24. You have asked how that advice applies to the TCUP. We start with “the unique circumstances of Alaska and its indigenous population.” Yellen v. Confederated Tribes of the Chehalis Rsrv., 141 S. Ct. 2434, 2438 (2021). Unlike other Indians, Alaska Natives were historically organized in “small, isolated villages,” not tribes. Confederat- ed Tribes of the Chehalis Rsrv. v. Mnuchin, 976 F.3d 15, 18 (D.C. Cir. 2020), rev’d and remanded sub nom., Yellen, 141 S. Ct. 2434. After the United States purchased the Territory of Alaska in 1867, the federal government—unlike in the lower 48 states—never attempted to relocate Alaska Natives to reservations, leaving their land claims “largely unset- tled” for more than a century. Yellen, 141 S. Ct. at 2438–39. Congress settled those claims in 1971 when it enacted the Alaska Na- tive Claims Settlement Act (“ANCSA”). See Pub. L. No. 92-203, 85 Stat. 688 (codified as amended at 43 U.S.C. § 1601 et seq.). The ANCSA extinguished Alaska Natives’ claims to land in exchange for nearly $1 billion and 44 million acres of land. Yellen, 141 S. Ct. at 2439. Rather than provide this compensation directly to Alaska Native villages, the statute “adopted an experimental model initially calculated to speed assimilation of Alaska Natives into corporate America.” Mnuchin, 976 F.3d at 18 (citation omitted). The law directed Alaska Native villages to create state-chartered private business corporations, called Alaska Native Corporations or “ANCs.” See Yellen, 141 S. Ct. at 2439. ANCs would then “‘hold, invest, manage and/or distribute lands, property, funds, and other rights and assets for and on behalf’ of the village.” Id. (citation omitted). “Enrolled Alaska Natives then received shares in their respec- tive ANCs.” Id. Today, many Alaska Native villages have obtained federal recognition and “thus maintain a government-to-government relationship with the United States, and the United States engages with 12  Constitutionality of the National Science Foundation’s STEM Programs such villages as political entities.” Race-Based Education Programs at *11 (cleaned up). With that background, we find that the inclusion of Alaska Native- serving institutions in the TCUP statute is capable of a constitutional interpretation. In our Race-Based Education Programs opinion, we ad- dressed the Alaska Native- and Native Hawaiian-Serving Institutions (“ANNHSI”) program. That program applied to all Alaska Native-serving institutions—not only to those controlled or chartered by federally recog- nized Alaska Native villages. See id. at *22–23 (first citing 43 U.S.C. § 1602(b); and then citing 20 U.S.C. §§ 1059d(b)(1), 7546(1)). For that reason, the ANNHSI program did not meaningfully involve the government-to-government relationships that characterize federal support for TCUs, and it was designed principally to further a generalized goal of racial diversity rather than uniquely Indian interests. See id. at *24. Ap- plying strict scrutiny, we thus found the ANNHSI program unconstitu- tional. See id. at *24–25. By contrast, it is possible to read the TCUP statute here as limited only to TCUs—including those controlled by Alaska Native villages—and thereby avoid the ANNHSI program’s fatal infirmity. See Constitutionali- ty of Disparate-Impact Liability Under Title VII, 50 Op. O.L.C. __, at *14 (June 9, 2026) (“Disparate-Impact Liability”) (addressing constitutional avoidance); Clark v. Martinez, 543 U.S. 371, 380–82 (2005) (same). The statute defines a TCU as an “institution of higher education which is formally controlled, or has been formally sanctioned, or chartered, by the governing body of an Indian tribe or tribes.” 25 U.S.C. § 1801(a)(4); see also 42 U.S.C. § 1862p-13(a); 20 U.S.C. § 1059c(b)(3). It then includes Alaska Native-serving institutions in that definition. See 42 U.S.C. § 1862p-13(a); 20 U.S.C. § 1059d(b). Congress needed to reference Alaska Native-serving institutions specifically because Congress often has legislated with respect to Alaska Native political institutions distinctly from tribes in the contiguous 48 states. See Race-Based Education Pro- grams at *10–11; Yellen, 141 S. Ct. at 2439–40. The statutory definition of TCUs would likely not have included educational institutions con- trolled or chartered by Alaska Native villages without explicit specifica- tion. But many Alaska Native villages have obtained federal recognition. See Race-Based Education Programs at *11. Given the context, it is plausible to read the definition of TCUs as limiting the definition of Alaska Native-serving institutions, such that the TCUP statute reaches 13  50 Op. O.L.C. __ (Aug. 12, 2026) only those Alaska Native-serving institutions that are controlled or char- tered by federally recognized Alaska Native villages. See Luna Torres v. Lynch, 578 U.S. 452, 459 (2016) (noting that statutory interpretation requires considering “the relevant words not in a vacuum, but with refer- ence to the statutory context” (citation omitted)); see also, e.g., Gomez v. United States, 490 U.S. 858, 864 (1989) (adopting a saving construction based on “the context of the overall statutory scheme”). 2 So interpreted, the inclusion of Alaska Native-serving institutions falls within the Manca- ri exception.3 2 The definition of Alaska Native-serving institutions cross-references a definition of Alaska Native that our Office previously concluded triggers strict scrutiny. See 20 U.S.C. § 1059d(b)(1), (b)(2)(B); id. § 7546(1); 43 U.S.C. § 1602(b); Race-Based Educa- tion Programs at *22–25. We reached that conclusion because the statute defined Alaska Native “not just by affiliation with a recognized political group—whether it be a federally recognized tribe or village—but also by blood quantum and ethnic ancestry.” Race-Based Education Programs at *23. Although the definition referred to Alaska Native villages as well, it did “not limit eligibility for the . . . program by affiliation with those entities.” Id. at *23 n.12. Bolstering our conclusion that strict scrutiny applied, the program’s “stated purposes [were] unrelated to uniquely Indian interests.” Id. at *23. That advice does not dictate the outcome here. For one, the TCUP involves uniquely Indian interests, and in such cases, engaging with the institutions of federally recognized entities may shield “legislation that might otherwise be constitutionally offensive.” Yakima Indian Nation, 439 U.S. at 500–01. Even though the underlying definition of Alaska Native includes an element of ancestry, the program engages an arm of a federally recognized institution to facilitate Native sovereignty and self -determination. Moreover, given the broader context of the TCUP, it is possible here to narrow the definition of Alaska Native-serving institutions to those controlled or chartered by federally recognized villages. Such institutions may be made up of individuals of a certain ancestry, but the program targets only those that have achieved federal recognition, further assuring us that the Mancari exception applies. Finally, even though the underlying definition of Alaska Native is constitutionally problematic, the blood-quantum element would be severable. We declined to sever that element in our previous advice because of “Congress’s intent that ‘proof of a minimum blood quantum’ would be the controlling basis for preferential treatment.” Race-Based Education Programs at *25. Here, by contrast, that same broader context makes federal recognition—not blood quantum—the controlling basis. We would therefore find that the TCUP could continue to operate as Congress intended even without the blood-quantum component of the underlying definition of Alaska Native. 3 Our conclusion extends equally to any TCU controlled or chartered by an ANC. Alt- hough ANCs are not themselves federally recognized tribal entities, see Yellen, 141 S. Ct. at 2446, they were created as the statutory vehicles through which Congress allows Alaska Native villages to manage lands and assets “on behalf of a Native village,” 43 14  Constitutionality of the National Science Foundation’s STEM Programs The same saving construction formally applies to the statute’s inclusion of Native Hawaiian-serving institutions. At present, there are “no federal- ly recognized Native Hawaiian or Native Pacific Islander political enti- ties,” Race-Based Education Programs at *11, and so there are no educa- tional institutions controlled or chartered by federally recognized Native Hawaiian entities. In practical terms, then, the TCUP cannot presently include any Native Hawaiian-serving entities. This practical reality does not, however, undermine our saving construction on a theory of surplus- age. When Congress created the TCUP, it may have intended to ensure that any political community the government might eventually recognize would have its institutions eligible to the same extent as traditional TCUs. Because Congress’s authority to recognize Native Hawaiian entities has “not previously been resolved by [the] Court,” “[c]ongressional action in the face of such legal uncertainty cannot reasonably be characterized as unnecessary surplusage.” Oklahoma v. Castro-Huerta, 142 S. Ct. 2486, 2500 (2022). 3. You have also asked about the computer-science awards to TCUs. NSF Letter at 5; see also 42 U.S.C. § 1862p-13(d). The program aimed “to increase the participation of Tribal populations in computer science and computational thinking education programs.” Id. § 1862p-13(d)(1) (em- phasis added). This reference could be viewed as “a race-based eligibility limitation” outside the Mancari exception. NSF Letter at 5. The awards remain constitutionally administrable. They must still go to TCUs and must satisfy the race-neutral criteria of section 1862p-13(d)(2). As noted above, grants to TCUs generally fall within the Mancari excep- tion as a form of government-to-government support. See Yakima Indian U.S.C. § 1602(j), and to “perform[] functions ‘that one would most naturally describe as governmental,’” Mnuchin, 976 F.3d at 27 (citation omitted). An ANC-controlled TCU would derive its character from the underlying sovereign-to-sovereign relationship between the federal government and Alaska Native villages that ANCs were designed to serve. Moreover, benefits flowing to such an institution would reflect the same uniquely Indian interests in self-determination and self-government that animate TCUs generally— interests that, in Alaska, must be understood through the novel organizational framework Congress established in the ANCSA. 15  50 Op. O.L.C. __ (Aug. 12, 2026) Nation, 439 U.S. at 500–01. In context, the term “Tribal populations” should be interpreted as meaning members of federally recognized tribes or their Alaska Native equivalents. And even if that phrase suggested a race-based restriction, it would be severable, and the race-neutral criteria in section 1862p-13(d)(2) would continue to govern the program. B. Applying constitutional avoidance, three programs we have reviewed do not require NSF to consider race or sex in their administration. Those are (1) the Graduate Research Fellowship Program, (2) Advancing Infor- mal STEM Learning, and (3) the Robert Noyce Teacher Scholarship Program. So construed, these programs are consistent with the Constitu- tion’s equal-protection guarantee. 1. The Graduate Research Fellowship Program (“GRFP”) is authorized under section 10 of the NSF Act. See NSF Act § 10, 64 Stat. at 152–53 (codified as amended at 42 U.S.C. § 1869). The original 1950 statute imposed two eligibility criteria, neither racial. See id. But in 2022, Con- gress directed NSF to “ensure program outreach to recruit fellowship applicants . . . from historically underrepresented populations in STEM.” Pub. L. No. 117-167, § 10313(b)(2)(C), 136 Stat. at 1524 (codified at 42 U.S.C. § 1869(c)). Because “historically underrepresented populations in STEM” might refer to “a mix of race-based and non-race-based criteria,” you have asked whether NSF may satisfy this requirement by focusing only on the latter. NSF Letter at 3 (citation omitted). It can. The phrase “historically underrepresented populations in STEM” does not compel consideration of race. Rather, NSF can satisfy this re- quirement by targeting race-neutral populations historically underrepre- sented in STEM—such as persons with disabilities, from rural communi- ties, or from low-income backgrounds. The statute