Resource: Defending Grant Agreements from Anti-DEI Attacks

By Sylvia Chi, Legal and Advocacy Director – Among the flurry of Executive Orders (EOs) issued by President Donald Trump in the first days of his second term, the two EOs that claim to target “illegal and immoral” Diversity, Equity, and Inclusion (DEI) activities appear to have significantly influenced the Administration’s approach to administering federal funding programs across a wide range of agencies, including the Environmental Protection Agency (EPA), Department of Energy (DOE), and Department of Agriculture. In particular, agencies have reportedly directed grant recipients (and subrecipients) to modify award agreements to remove DEI-related elements or language. However, awardees are not legally required to accede to these demands and may be better off staying the course.

As the court challenges to these EOs unfold and the Administration continues its reactionary crusade against its perception of DEI, we expect there will be relevant developments in the coming weeks and months which will affect the content of these resources, so we plan to update these resources periodically.

While our memorandum focuses on grant programs authorized by the Infrastructure Investment and Jobs Act (IIJA) and Inflation Reduction Act (IRA), similar actions are unfolding with respect to funding provided under other laws, too. For example, on April 3, the Department of Education distributed to public education officials a “Reminder of Legal Obligations Undertaken in Exchange for Receiving Federal Financial Assistance and Request for Certification under Title VI and SFFA v. Harvard.” In addition to demanding that officials must, within 10 days, sign and return a certification that was previously enjoined by a federal district court as likely violations of the First and Fifth Amendments, this notice falsely asserts that the Supreme Court’s 2022 decision in Students for Fair Admissions v. Harvard outlawed nearly all race-based action, when in fact, the opinion only applies to universities’ undergraduate admissions programs. These efforts can all be understood as examples of what the Atlantic writer Adam Serwer has described as the “Great Resegregation,” the Trump Administration’s mission of “restoring America’s traditional hierarchies of race and gender.” For those of us who instead envision a pluralistic, multiracial democracy in the United States, it’s imperative to keep our commitments to advancing environmental and climate justice.