A sea change is at hand.
Little noticed in the blizzard of executive orders issued by President Trump is this provision in Executive Order No. 14173 for getting federal money:
(iv) The head of each agency shall include in every contract or grant award:
(A) A term requiring the contractual counterparty or grant recipient to agree that its compliance in all respects with all applicable Federal anti-discrimination laws is material to the government’s payment decisions for purposes of section 3729(b)(4) of title 31, United States Code; and
(B) A term requiring such counterparty or recipient to certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.
In other words, if you want federal money, you will have to “certify” that you do not “operate any programs promoting” DEI (diversity, equity and inclusion) “that violate any applicable Federal anti-discrimination laws.” And the order eases the way for enforcement through whistleblower claims.
Major universities may be the most impacted because they rely heavily on tens of billions of dollars in contracts and grants paid out nationally every year by the federal government. Many of those schools also continue to maintain aggressive DEI programs that are highly suspect under Federal anti-discrimination laws.
That spells big trouble unless they end or curtail DEI programs, and fast. They will either be disqualified from new federal grants or face severe consequences for signing a false certification.
Among the schools that should be paying attention is Northwestern University. Its total federal revenue from contracts and grants is unclear but undoubtedly very large, with grants from the Department of Defense, NASA, National Institutes of Health, National Science Foundation and other agencies.
But Northwestern is already being sued for its agreement, following pro-Palestinian protests, to provide special scholarships and other accommodations to Palestinian students. Another lawsuit against the law school alleges discrimination against whites in faculty hiring.
Such conduct by a university, if proved, likely would be regarded by the Trump Administration as prohibited DEI policy, making it hard for Northwestern to sign the new certification requirement needed for federal grants.
What about state universities? The order isn’t clear on that. It’s mostly about private sector entities, but the language quoted above is not limited to them. An association of public universities includes the new order among its warnings of changes being implemented under Trump. If Trump’s new order isn’t intended to cover public universities, there’s no reason to doubt that another one will.
If Trump’s new order does cover public universities, a prime target would be the University of Illinois Urbana-Champaign. It maintains one of the most egregious DEI loyalty oath programs in the nation, requiring woke speech and conduct to be among the evaluation factors for faculty hiring and tenure. We’ve long said it was a First Amendment lawsuit waiting to happen, even during the Biden Administration. We’ve written about that here, here and here.
Trump’s new order is vague. There’s no definition, for example, of “programs promoting DEI” that are prohibited.
The order is definitely limited to DEI programs “that violate any applicable Federal anti-discrimination laws.” What that means, however, is hardly clear. The illegality of some DEI programs is now controlled by the Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard. Legal scholars and administrators of all types are still struggling to decide what DEI programs are permissible under that ruling.
But the order and the Harvard decision probably will be interpreted strictly by the Trump Administration, for reasons nicely explained in a recent piece here from the Manhattan Contrarian.
It gets worse for the woke.
Trump’s new order includes this:
A term requiring the contractual counterparty or grant recipient to agree that its compliance in all respects with all applicable Federal anti-discrimination laws is material to the government’s payment decisions for purposes of section 3729(b)(4) of title 31, United States Code.
Want to guess what that referenced Code section is?
It’s the False Claims Act – the whistleblower law that allows private citizens to file what are called qui tam actions. That provision in Trump’s new order is specifically intended to make it easier to win whistleblower actions under the False Claims Act. In other words, if a university or other party falsely signs the certification that they have no DEI policies, private parties like their employees can blow the whistle, perhaps getting a cash award. Treble damages are among the possible consequences for False Claims Act violations.
Many major law firms have posted warnings for their clients about the new Trump order and the potential for whistleblower complaints, such as here.
However, the regular press and general public have yet to catch up on how drastically the law has turned against DEI.
Chief Justice John Roberts wrote in 2007 that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Like it or not, that’s how the new crowd in Washington sees things. They mean business. Buckle up.
