An Under the Radar Attempt to Politicize Federal Funding Needs Your Input

The attempts by the Trump Administration to implement policies aligned with their ideology have come in many forms. The latest is an under the radar approach that would condition all federal funding on restrictions on diversity, equity, inclusion; ending protections for undocumented individuals; and limitations on activities that are viewed as being a threat to public safety or national security.

Less than a month into Trump’s presidency, the administration took the first steps in opening the floodgates of their efforts to end federal funding for programs and entities who they disagreed with ideologically. They issued an Executive Order that directed agencies to end funding for programs that include DEI;  attempted to terminate federal grants because of words they didn’t like; and they sent all schools and higher education institutions a Dear Colleague letter (DCL) that sought to restrict diversity, equity, and inclusion efforts, and would have required school districts who wanted federal funds to sign a certification that they would follow the directives provided in the DCL.

These attacks on federal funding for entities the administration disagreed with expanded to the legal sector almost immediately. In April of last year, the Department of Justice issued a memo titled “Engagement with the American Bar Association,” where they cancelled participation by federal government employees in ABA events. The next day, the ABA’s federal grants that supported domestic violence-related were cancelled (they were later reinstated by the court). And, the ABA’s accreditation role has been under scrutiny by the U.S. Department of Education, which would impact federal financial aid for law students across the country.

Now, the Administration is taking a broad approach to tying federal funds to their political ideology.

At the end of January, the Trump administration, through the General Services Administration (GSA), filed a proposed information collection change to amend the certification requirements for all entities receiving grants, cooperative agreements, and financial assistance, such as loans, to align them with the administration’s ideology. The revised certifications would be added to the System for Award Management (SAM), the system that every applicant is required to register with before applying for and receiving federal grants and loans.

The proposed certifications require compliance with the Administration’s interpretations of federal law, not just legal requirements, including with executive orders. It states that federal antidiscrimination laws “apply to programs or initiatives labeled as diversity, equity, and inclusion (DEI) or diversity, equity, inclusion, and accessibility (DEIA).” It also calls out examples of practices that “may” violate such laws, including race-based scholarships and programs, preferential hiring or promotion practices, and race-based training sessions, regardless of if they have been found to be illegal.

Since the beginning of the Trump administration, we have seen the beating of the drum repeatedly on the unconstitutionality of race-based activities, but they have been using the wrong drumsticks.  They have pointed to the decision in Students for Fair Admissions vs. Harvard, which was limited to race-based admissions, as a reason that all DEI programs are not allowable. This attempted expansion of that Supreme Court decision is wrong – and, dare we forget, the judiciary branch is still the branch of government that has the power to declare activities unconstitutional, not the executive branch.

According to the notice, more than 220,000 entities who rely on federal assistance would be impacted by the proposed certifications. And, some of the certifications would go beyond the use of the federal funds in an attempt to control all the activities of organizations and schools.

Think about the law school clinic that does immigration work that becomes subject to certifications that the medical school signs for their research grants that states they will not “harbor” illegal aliens – a term that the courts have yet to definitively define and that the Trump Administration uses repeatedly in its actions and rhetoric, including against schools that forbid ICE on their campuses and public housing that serves mixed-status families. These schools would be at risk of losing their student loans.

Think about legal services organizations who are defending individuals and nonprofits against the attacks by this administration on diversity programs and transgender rights. In an Executive Order released in September, President Trump claimed that “domestic terrorism” is driven by “extremism on migration, race and gender.” These organizations would be at risk of losing their Legal Services Corporation funding.

If these certifications are finalized, they would attempt to regulate activities that occur based on content and viewpoint and cause uncertainty about what activities and practices are permitted. The fear of severe penalties, such as False Claims Act liability and loss of federal funds, will cause the chilling of speech and conduct. They would likely violate the First Amendment and be found to be unconstitutionally vague, as the use of potential examples and undefined terms will lead to arbitrary enforcement.

Furthermore, these certifications are being put forth under the Paperwork Reduction Act, which is required to take into consideration whether the proposed collection of information is necessary and has practical utility. These additional certifications are clearly not necessary as the current certifications already require all recipients of federal funds to comply with federal laws, including federal antidiscrimination laws, and the Constitution.

These proposed certifications are attempting to inject one specific ideology and politics into federal funding. Even if courts ultimately strike them down, they will have an immediate chilling effect on the everyday work that is critical to our democracy. That is why every federal grantee must submit comments by the March 30^th deadline about why these proposed certifications exceed the administration’s authority and are a dangerous tool in the administration’s toolbox.

Amanda Fuchs Miller is president of Seventh Street Strategies and former Deputy Assistant Secretary for Higher Education Programs at the U.S. Department of Education during the Biden-Harris administration.