NSF Adds DEI and Israel Boycott Restrictions to Grant Terms

The National Science Foundation updated its grant conditions on Monday to bar recipients from operating certain diversity, equity, and inclusion programs or participating in boycotts of Israel. The move follows a similar policy issued by the National Institutes of Health last month.

The new conditions state that accepting an award from NSF means the recipient is certifying that it does not operate any programs that “advance or promote DEI, or discriminatory equity ideology in violation of federal anti-discriminatory laws,” nor will it boycott organizations with Israeli ties. NSF reserves the right to terminate funding to recipients it deems to be in violation of the policy.

The policy applies to all new NSF grants and funding amendments to existing grants, agency spokesperson Michael England said in a statement. England did not comment on what types of programs would violate the policy.

The new conditions reference an executive order from President Donald Trump in January that defines “discriminatory equity ideology” as “an ideology that treats individuals as members of preferred or disfavored groups, rather than as individuals, and minimizes agency, merit, and capability in favor of immoral generalizations.” This includes the belief that “an individual, by virtue of the individual’s race, color, sex, or national origin, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion,” the order adds.

No definition is provided for programs that “advance or promote DEI” in a way that would violate anti-discrimination laws.

“The unfortunate thing here is that the administration hasn’t done much to specifically define what they believe would be an unlawful DEI program,” said Posi Oshinowo, a labor and employment attorney at Wiley Rein. Another executive order directed the attorney general and secretary of education to issue guidance by May 21 regarding compliance with the Students for Fair Admissions v. Harvard ruling by the Supreme Court that race-conscious admissions are unlawful, but that guidance has not been issued yet, Oshinowo added.

“There are limited glimpses available as to what the administration views as unlawful,” Oshinowo said. A letter from the Department of Education in February asserts that the ruling in SFFA v. Harvard “should actually extend to virtually all aspects of how educational institutions operate. So not just admissions, but hiring, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic and campus life,” Oshinowo said.

“It takes the position as well that even race-neutral programs could be unlawful discrimination if they are motivated by racial considerations. One of the things they specifically call out is using essays or writing samples or extracurricular activities to try to predict, or solicit without soliciting, a student’s race,” Oshinowo added.

Additionally, the Equal Employment Opportunity Commission and the Department of Justice issued guidance in March that identifies unlawful DEI practices, including programs that use race, gender, or sexual orientation as an eligibility factor; quotas, including aspirational goals tethered to compensation for hiring managers or leadership; affinity groups, except where groups are open to all and can be created by anyone; mandatory minimum slate requirements, such as a requirement to consider 30% “diverse” candidates in a candidate pool; and “discriminatory training.”

DEI restrictions implemented by other grantmaking agencies have been challenged in court. For instance, a grant condition restricting DEI activities for Department of Housing and Urban Development grantees is currently subject to a temporary restraining order. The judge wrote that the conditions likely exceed the department’s constitutional authority, are not closely related to the purposes of the grants, and are likely void due to vagueness.

The ban on boycotts of Israel is more clear because the conditions document provides a definition, Oshinowo said. “It also seems to be a pretty clear response to the demands of student protesters during the recent protests related to university support of Israel,” he added. “So it’s sort of an anti-capitulation obligation imposed there by the administration on universities and institutions that receive grants.”

The Trump administration has demonstrated a willingness to terminate individual grants and cut off funding to entire institutions by invoking conduct relating to DEI or Israel.

NSF has already terminated more than a thousand grants it deemed related to DEI or other topics, such as misinformation and environmental justice, that do not “effectuate” agency priorities. NSF and several other science agencies also cut off funding to Harvard University on May 12, with NSF’s termination letter asserting that Harvard “continues to engage in race discrimination including in its admissions process, and in other areas of student life, as well as failing to promote a research environment free of antisemitism and bias.”

Harvard filed a lawsuit alleging that the funding freezes and terminations go beyond the scope of agencies’ anti-discrimination procedures by targeting research programs that are not connected to the alleged discrimination.

In total, NSF has terminated more than 1,750 grants since the beginning of the administration, according to a new spreadsheet published by the agency.