Sent all federal PIs, research associate deans, other academic leaders, and central and departmental research administrators by the Research and Innovation Office.
Dear Research Colleagues,
A major legal shift occurred on Friday, March 14 when the US Court of Appeals for the Fourth Circuit enabled the federal government to terminate or change award terms if those awards contain Diversity, Equity, or Inclusion (DEI) activities. The 4th Circuit also enabled the resurrection of certifications that the University does not engage in unlawful DEI activities as a condition of federal funding. This development occurred when the 4th Circuit issued a stay on the nationwide preliminary injunction related to the DEI Executive Orders (EOs) that was previously issued by the federal district court in Maryland. The appeal to the 4th Circuit will continue while the stay is in place, but OGC believes that the most likely timeline for an outcome to that appeal will not be until the end of April or possibly May.
As a reminder, the EO’s involved in the 4th Circuit appeal are Ending Radical and Wasteful Government DEI Programs and Preferencing (1/20/25) and Ending Illegal Discrimination and Restoring Merit-Based Opportunity (1/21/25). The sections of these EOs that were paused by the preliminary injunction and consequently are back in force during the 4th Circuit stay are the following:
A. The “Termination Provision” in the 1/20/25 EO that directed each agency, department, or commission head to terminate, to the maximum extent allowed by law, all “equity-related” grants or contracts.
B. The “Certification Provision” in the 1/21/25 EO that directed the head of each agency to include in every contract or grant award a term requiring the contractual counterparty or grant recipient to agree that its compliance with Federal anti-discrimination law is material to the government’s payment, and a term requiring parties and grant recipients to certify that they do not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.
C. The “Enforcement Threat Provision” in the 1/21/25 EO that required agencies to submit a plan to deter DEI programs or principles that constitute illegal discrimination or preferences and identify up to nine potential civil compliance investigations of corporations, non-profits, foundations, or institutions of higher education.
While the nationwide preliminary injunction has been stayed, the original issues addressed by the plaintiffs will continue to be heard. The plaintiffs asserted issues with the vagueness of the terms in the EO, the chilling effect on the free speech of grant recipients, and the authority of the executive branch to terminate all equity-related grants among many other issues. These issues will be determined by the judicial process over time. However, the 4th Circuit acknowledged that First Amendment-protected speech at higher education institutions continues to be protected, and the order does not prohibit persons teaching as a part of a larger course of academic instruction from advocating for, endorsing, or promoting DEI activities.
What does this mean for new or continuing awards at the University of Minnesota?
The University has decided that it will make a certification as a condition of accepting federal awards, provided the certification stipulates that the University does not engage in unlawful DEI activities. SPA will make these certifications during the award acceptance process. If a PI has questions about what might be considered unlawful DEI activities, they will be advised to consult with OGC.
If a new or continuing grant requires a University employee to certify that the University as a whole does not engage in any DEI activities, SPA will seek clarification from the sponsoring agency and request an amendment to the certification to limit only unlawful DEI activities. If the sponsoring agency does not respond to SPA’s inquiry, SPA will work with OGC and Senior Leadership to evaluate the University’s options.
If a new or continuing grant requires a University employee to certify that the funded program does not engage in any DEI activities, SPA will work with the PI to determine if the certification can be made.
For awards for which the sponsoring agency requires revisions to the funded proposal, SPA will confer with the PI to determine if the PI would like to rebudget awarded funds from DEI activities to other activities (with agency prior approval should that be required by the sponsor) unless the agency specifically requires DEI-related funding to be returned to the agency. If the latter, SPA will work with the PI to determine how much funding needs to be returned and arrange for that to occur with Sponsored Financial Reporting.
The reinstatement of these Executive Order provisions also means that some awards that are DEI-focused may be terminated by the sponsor. If this happens, SPA will notify the PI immediately upon receipt of the termination or stop work order. SPA will discuss with the PI any potential options for appeal.
We will continue to keep you updated as the legal landscape evolves in this area. Please direct questions to the SPA Grant and Contract Officer handling your project, or to Pamela Webb ([email protected]).
Please continue to visit our SPA Federal Executive Orders and Other Policy Directives website for the most up-to-date guidance.
Sincerely,
Pamela Webb, Associate Vice President for Research and Innovation
April Coon, Director, Sponsored Projects Administration