In addition to the Trump administration's general freeze on most grant funding, which was rescinded as well as enjoined by federal district courts in Rhode Island and Washington, D.C., the new administration yesterday took steps to halt funding to organizations and governmental entities that fail to comply with immigration and Education Amendments Act requirements. These additional measures, which will almost certainly face legal challenges, could cause further disruptions in federal funding to numerous jurisdictions and educational institutions, as well as to companies that provide goods and services to those entities under contracts funded by federal grants.
Measures Against "Sanctuary Cities"
On February 5, shortly after being confirmed, Attorney General (AG) Bondi issued a memorandum titled Sanctuary Jurisdiction Directives to all Department of Justice (DOJ) employees. The memorandum states that, going forward, DOJ will require any jurisdiction that applies for "certain" DOJ grants be compliant with a statutory prohibition at 8 USC §1373(a) against restricting any government entity or official from sending to or receiving from federal immigration officers "information regarding the citizenship or immigration status, lawful or unlawful, of any individual." AG Bondi also directed DOJ, "to the extent consistent with applicable statutes, regulations, and terms ... tailor future grants to promote a lawful system of immigration."
In addition, AG Bondi ordered a 60-day pause on the distribution of funds for all agreements with non-governmental organizations that "provide services to removable or illegal aliens" to the extent such pause is consistent with applicable statutes, regulations, court orders, and terms and only after complying with notice and procedural requirements. After such agreements are identified, DOJ will determine which, if any, of the agreements to terminate and whether to resume funding of any of the remaining agreements.
AG Bondi's memorandum set out a more nuanced, sophisticated structure for a pause in disbursements under existing federal agreements. Indeed, the requirement that agreements only be paused consistent with applicable statues, regulations, and terms mirrors the language in Rhode Island's injunction of the broader grant freeze that required that disbursements under federal financial assistance agreements, including grants, only be interrupted in accordance with "authorizing statutes, regulations, and terms."
Title IX Freeze
In the February 5 Executive Order (EO), "Keeping Men Out of Women's Sports," President Trump established that it is the government's policy to "rescind all funds from educational programs that deprive women and girls of fair athletic opportunities ... [and] oppose male competitive participation in women's sports more broadly ...."
Among other actions, with regard to the funding mandate, the EO directs that all executive departments and agencies "review grants to educational programs and, where appropriate, rescind funding to programs that fail to comply with th[is] policy ...." Although there may be additional guidance, the EO does not appear to acknowledge, as the AG Bondi memo does, that such funding may only be interrupted in accordance with authorizing statutes, regulations, terms, and court orders.
Recommended Actions
For grant recipients, as well as contractors whose agreements are funded by federal grants, we recommend a careful review of stop work, termination, and funding terms. Further, to the extent grant disbursements are interrupted, unless the funding is halted in accordance with statute, regulations, or the terms of the federal agreement, impacted parties should consider communications with the funding entity regarding the requirements to continue payment.
In addition to funding issues, these, and other, executive actions are causing universities, companies, and governmental entities to carefully consider whether their current policies on these, and other, issues put continued federal funding at risk. We strongly recommend organizations impacted by these, and other, executive actions discuss these issues with your outside counsel as you determine how to move forward.
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