GSA Proposes to Ban Unlawful DEI in Grant Applications
The General Services Administration (GSA), which works closely with the Office of Management and Budget to provide guidance on the procurement, technology, and administrative activities of the federal government, has issued a proposal that would require federal grantees to certify that, among other things, they are not engaging in unlawful discrimination, including unlawful diversity, equity, and inclusion (DEI) activities. The proposal is part of a broader effort to incorporate Trump Administration priorities into the federal grantmaking process.
The proposed certification requirements would update the Financial Assistance General Representations and Certifications to align with updated executive branch guidance, including Department of Justice guidance on unlawful discrimination and President Trump’s Executive Order on DEI.
Institutions can submit comments to GSA on its proposal and must do so by March 30.
If finalized in their current form, the new certification requirements would require entities and individuals applying for federal funding to certify that they will comply with the U.S. Constitution, all federal laws, and relevant executive orders prohibiting unlawful discrimination on the basis of race or color. As a result, any DEI programs that are unlawful would be covered by the certification provisions. The amendment also requires applicants to certify that they will not knowingly bring an illegal alien to the United States or assist an illegal alien in any way and that they will not fund or facilitate violence, terrorism, or other illegal activities that threaten national security.
It is important to note that the proposed certification requirements would ban only activities that constitute unlawful discrimination, not all forms of DEI. However, given the political and legal uncertainty over precisely which types of DEI activities are unlawful and which are not, the proposed amendments may pose potential challenges for institutions seeking federal grants. Previous Administration efforts to insert similar provisions in grant certifications have faced lawsuits, and it remains to be seen if GSA’s proposal will confront similar legal challenges. Accounting for that possibility, the proposed certification requirements contain a provision stating:
To the extent that any the certifications or representations on this page are the subject of an active court order or injunction that is legally binding on the recipient and the relevant awarding agency, and prohibits enforcement of such requirements, the affected certifications or representations will be deemed inapplicable to that recipient.
The GSA proposal was announced in an i related to an amendment to certifications required in the System for Award Management (SAM) for financial assistance recipients.
The proposed certification requirements would be added to the existing information collection that requires applicants and recipients of federal funding to register in the SAM and maintain an active account with current information throughout the time they have an active federal award. As part of SAM, these certifications would be applicable to all entities receiving grants, cooperative agreements, and financial assistance from the federal government such as loans, insurance, and direct appropriations.
For more information, please contact:
Stephanie Giesecke