The Letter of the Law
Remember the heady days of January/February 2025, when executive orders flew from the halls of our capital like bats outta the depths of hell…? Remember parsing through the mandates against DEI and what it would mean to receive a grant from a federal agency and thereby be required to abide by, in specific, two executive orders issued by Trump that made DEI and ‘gender idelogy’ illegal. Organizations were prohibited from "operat[ing] any programs promoting 'diversity, equity, and inclusion' that violate any applicable federal anti-discrimination laws." At the same time, grantees could not be seen to violate an executive order recognizing only "two sexes, male and female" under penalty of law.
After many fierce protests, letters, and lawsuits, the US District Court for Maryland issued a preliminary injunction against implementing the mandates on February 21, 2025. This was almost immediately appealed. And now, as of February 6, 2026, the US Court of Appeals for the Fourth Circuit issued its decision and vacated the preliminary injunction previously issued by the District Court. Sooooooo, the compliance requirements apply to receipients of federal grants — related to not only to programs specifically funded by, or mentioned as part of the application for, grants but to any and all programs they produce or administer. That’s a whole lot of vulnerability related to incredibly vauge laws.
So, the question is — particularly during a time of multiple colliding and escalating crises — how to respond.
First, we advise (remember we are, after all, Ultra Advising so we advise) fully understanding the situation. Read the proposed changes and supporting materials. There are “significant legal and financial risks to grantees” (Council on Nonprofits) attached to federal funding. The new rules are both vague and ominous, meaning it will be difficult for nonprofits to know whether they are in compliance. The result is that the laws could be applied capriciously and punitively, to harass and bully organizations who have, for whatever reason, or, perhaps, for no clear reason, run afoul of someone/anyone in Washington.
Please understand that the proposed changes threaten civil and criminal penalties for staff, board and potentially funders and artists seen to be in violation. Some of our clients find this daunting. Of course. This situaiton is extraordinarily daunting. Other clients feel they can handle whatever may come. Maybe they can. Artists and arts organizations do have superpowers. Whatever your organizational leadership feels, personally and/or through organizational conversation and/or legal counsel, we advise that you not underestimate what these compliance mandates are threatening. This includes fines, loss of nonprofit status and even jailtime. At the very least, should your organization be targeted, you will need to spend money on lawyers just to understand what is happening — the revised certification does not define “diversity, equity, inclusion, and accessibility,” or explain which executive orders are “relevant” and must be followed. This is an open invitaiton to harrass.
We understand that you need money. This may be somewhat existential for your organization. We understand that the money coming from the NEA and other agencies is, actually, ours — it is tax dollars and we deserve it. We understand how wrenching it is to choose between taking these risks (not to mention betraying deeply held values) and underpaying hardworking staff or canceling needed programs because you can’t make up the NEA grant elsewhere. But don’t underestimate the stakes of compliance. Whatever choice you make, make it consciously.
We recommend an all-board, all-staff decision-making process. The stakes are that high. Maybe invite in a couple of major donors and artists whose work your organization supports. This is not an ED solo flight moment. This is a group decision that involves assessing everyone’s risk tolerance.
AND at the same time, we can work to change this mandate. We have until March 30 to take action in opposition to this latest assault.
Submit a comment letter using NCN’s comment guide, which includes talking points, instructions, and more information.
Sign a national letter led by the National Council of Nonprofits (NCN) and Legal Defense Fund.
Email your members of Congress and urge them to help protect nonprofit grantees and the communities they serve.
Be your wild and beautiful self and protect other selves everywhere and anytime you can. We’re here with you, fighting the good and necessary fight!
