The Latest from the Courts and the NEA
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Just days after Judge Abelson, the Maryland District Court Judge who issued the preliminary injunction in Nat’l Ass’n of Diversity Officers in Higher Educ. v. Trump, i.e., the DEI Executive Order case addressing EOs 14151 and 14173, clarified that the order applied nationwide and affected all federal agencies, not just those named in the case, the Fourth Circuit Court of Appeals ruled Friday that the injunction was overbroad and overturned the injunction, allowing the Administration to resume enforcement of the DEI Executive Orders.
This decision potentially affects NEA Grants for Arts Projects applicants who have submitted their Grants.gov applications for the March 11 grant cycle, as well as applicants for future grant cycles or programs.
Specifically, this means that the requirement that recipients of federal funds refrain from engaging in any “illegal” DEI activities may be back on the table. As of 10:15 EDT on Monday, March 17, 2025, the Assurance of Compliance language still includes the following language referring to the overturned injunction:
PLEASE NOTE: Due to the preliminary injunction issued on February 21, 2025, by the United State District Court for the District of Maryland, Case No. 1:25-cv-00333-ABA, the NEA is not currently requiring any grantee or contractor to make any “certification” or other representation pursuant to Executive Order No. 14173. This term will not apply to your award as long as this preliminary injunction remains in effect.
Because the preliminary injunction is no longer in effect, we should expect for that language to be updated or deleted in the immediate future. The question is - to what?
Note that last week, the NEA updated the Assurances of Compliance to include the following language with respect to the Gender Ideology assurance pursuant to EO 14168:
PLEASE NOTE: Pending the outcome of litigation in the United States District Court of Rhode Island, Case No.1:25-cv-00079-WES-PAS, the NEA is not currently requiring any grantee to make any "certification" or other representation pursuant to Executive Order 14168.
There are key differences in the language referring to the different Executive Orders and relevant cases. Specifically, the NEA voluntarily agreed to halt enforcement of the Gender Ideology language pending the Rhode Island case’s final outcome. Because the NEA is the primary federal party in that case, it was able to negotiate with the plaintiff organizations and make this concession without the need for the issuance of an injunction or restraining order.
The Maryland DEI case is different - the NEA is not a direct party to this case and its retreat from the DEI language was tied to the government-wide injunction which has since been overturned. The language I quoted above clearly says that the terms related to the DEI Order are only suspended “as long as this preliminary injunction remains in effect.”
This means, technically, that even without updating the language, arguably, the DEI certifications are again enforceable.
That said, it is conceivable that the NEA will decide to voluntarily pause on enforcing the DEI language in alignment with the Gender Ideology language. It could take the position that since the Grants.gov window has closed for the first GAP funding round, it would be inappropriate to change the requirements mid-stream. Or, it could take the position that without a court order or a direct nexus to the case, it has no choice but to require compliance with the executive order going forward.
Either way, it remains frustratingly unclear what standard Grants for Art Projects applicants will be held to in the long term for the 2026 cycle or for prior year grants which are still in progress and closing out. This ambiguity is not the fault of the NEA. Unfortunately, it likely will not be clear until both of these cases make their way through the courts or are otherwise settled or withdrawn or some other federal action - possibly new legislation - circumvents the ongoing lawsuits.
In the meantime, I continue to suspect that all NEA grantees who are still spending past year grant funds, as well as 2026 grantees, will, at some point, have to make the case that their programming is compliant with the executive orders or risk losing NEA funding. At minimum, I predict that some version of the “not excluding in efforts to be inclusive” standard that Mary Anne Carter, NEA Senior Advisor, articulated in the February 21, 2025 Americans For the Arts Webinar is going to be applied to NEA funded projects. Whether I’m right, or how broad any requirement will be, remains to be seen.
This material presented for informational purposes only. Not intended as legal advice.