The National Institutes of Health (NIH) announced on April 21, 2025, a significant change to the terms and conditions governing federal funding (the Notice) applicable to all NIH grants, cooperative agreements and other awards, including future awards.
The new terms require awardees to certify that they do not operate or promote diversity, equity and inclusion (DEI), or diversity, equity, inclusion and accessibility (DEIA) programs in violation of federal antidiscrimination laws. Awardees also must refrain from participating in any "discriminatory prohibited boycott," defined as refusal to do business with Israeli companies or companies doing business in or with Israel. Additionally, they may not engage in conduct prohibited by Section 2(b) of Executive Order (EO) 14190 of Jan. 29, 2025, regarding "radical indoctrination" in public education (referred to in the Notice as "discriminatory equity ideology").
Specifically, by accepting federal funding under the Notice, recipients certify that:
- they do not and will not during the term of the financial assistance award operate any programs that advance or promote DEI, DEIA or discriminatory equity ideology in violation of federal antidiscrimination laws
- they do not engage in and will not during the term of this award engage in a discriminatory prohibited boycott
The Notice will change the existing civil rights terms listed in Section 4.1.2 of the federal Grants Policy Statement (GPS) that reference the Civil Rights Act of 1964, prohibiting discrimination on the basis of race, color or national origin; Title IX of the Educational Amendments of 1972, prohibiting discrimination on the basis of sex; Section 504 of the Rehabilitation Act of 1973, prohibiting discrimination based on physical or mental disabilities; the Age Discrimination Act of 1975, prohibiting discrimination on the basis of age; and EO 13166 of Aug. 11, 2000, prohibiting discrimination against people with limited English proficiency.
The beginning of the Notice states that the new requirement "supersedes" Section 4.1.2 of the GPS, while the end of the Notice states that Section 4.1.2 "will be updated to incorporate this standard term and condition of award." It also emphasizes that at least portions of Section 4.1 will remain as "civil rights requirements do not apply to foreign and international organizations."
It is not clear from the Notice how the GPS will be updated and whether or how the Notice will impact the U.S. Department of Health and Human Services (HHS) Office for Civil Rights' Assurance of Compliance (HHS Form 690), which grantees must have on file with the federal government in order to comply with GPS requirements.
The Notice applies to recipients of new, renewal, supplemental or continuation awards issued on or after April 21, 2025.
As with other proposed federal grant changes, it is likely that the Notice will be challenged in court. Meanwhile, funding recipients should be thoughtful about policy and programmatic changes to ensure compliance with existing federal statutes and terms of the new Notice.
Holland & Knight attorneys familiar with the congressional and political landscape surrounding this issue will continue to monitor these developments, including potential legal challenges to the Notice.
