The Trump Administration has withdrawn its appeal of a district court ruling that vacated the Department of Education’s (“ED”) February 14th Dear Colleague Letter (“DCL”), but the DEI battle continues. The DCL and its ensuing certification requirement, which required state education agencies and their school districts to certify their compliance with the Trump Administration’s interpretation of anti-discrimination law, are now dead. But the withdrawn appeal did not reflect the Government’s surrender; it merely reflected a pivot. Nine days after the Government withdrew that appeal, the General Services Administration (“GSA”) proposed revisions to the existing Financial Assistance General Certifications and Representations in the System for Award Management (“SAM”). Similar to the DCL-related certification requirements, these proposed revisions require any applicant or recipient of federal funds to certify to the following: the applicant/recipient “will comply with the U.S. Constitution, all Federal laws, and relevant executive orders prohibiting unlawful discrimination on the base of race or color in the administration of federally funded programs” and acknowledge that an inaccurate certification could lead to criminal or civil liability (the “GSA Certification Requirement”).
The GSA Proposed Change
Applicants and recipients of Federal funding must register in SAM and maintain an active SAM registration with current information at all times during which they have an active Federal award or an application or plan under consideration by a Federal agency. Entities must read and agree to the Financial Assistance General Certifications and Representations as part of their registration. The GSA proposed revisions add the GSA Certification Requirement.
The GSA’s proposed revisions demonstrate that the Government is learning from some of its prior mistakes in the DEI battle. The federal district court had determined that the DCL and its related certification requirement violated the Administrative Procedure Act because the certification requirement had binding legal consequences but did not undergo required prior notice and comment. GSA’s new proposed policy revisions will not have that problem because it provides a notice and comment period. On January 28, 2026, the GSA provided notice of the proposed revisions and invited comments. All comments to the new GSA revisions must be received by March 30, 2026.
The GSA stated that its proposed revisions would update the Financial Assistance General Representations and Certifications “to align with updated executive branch guidance,” including the (1) July 29, 2025 Department of Justice “Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination” (“the July 29th DOJ Guidance”); and (2) DEI Executive Order 14173 of January 21, 2025, Ending Illegal Discrimination and Restoring Merit-Based Opportunity (the “DEI Executive Order”). Note that while the July 29th DOJ Guidance specifically states that it is “non-binding” and that it offers “practical recommendations” rather than “mandatory requirements,” the proposed GSA certification requirement would be binding on the funding recipient. The GSA’s proposed revisions offer specific examples of practices that may violate applicable Federal anti-discrimination laws. These examples mirror some of the examples given in the “non-binding” July 29 DOJ Guidance, including race-based scholarships or programs. The July 29th DOJ Guidance relied heavily on the Students for Fair Admissions, Inc. v. President & Fellows of Harvard College decision, which held that two higher education institution’s race-based admissions decisions were unconstitutional. The July 29th DOJ Guidance displayed the Trump Administration’s expansive view of that decision, perceiving it as applicable to all aspects of campus life, including scholarships, grants, employment, and other benefits and programs.
As for the GSA’s reliance on the DEI Executive Order, that Executive Order had its own certification requirement—similar to what the GSA now proposes—which required the heads of agencies to include in every contract or grant award a term requiring the recipient to certify that it does not operate any programs promoting DEI that violate anti-discrimination laws. Shortly after the GSA published the proposed certification requirement, the Fourth Circuit reversed a lower court’s ruling vacating both DEI Executive Order 14173 (mentioned in the GSA proposed revisions) and DEI Executive Order 14151 (not mentioned), ruling that both executive orders were not unlawful as written. The Fourth Circuit specifically addressed Executive Order 14173’s certification requirement, holding that the provision “requires only that plaintiffs certify compliance with federal anti-discrimination laws,” and that while “Plaintiffs suggest that [D]efendants view all DEI programs as illegal,” “the Certification Provision doesn’t say that.”
Thus, the DEI Executive Orders, with a few exceptions such as applied to the Department of Labor, are in force. But the Fourth Circuit left a door open to challenge the DEI Executive Orders: a claim that such are unlawful “as applied” to a specific plaintiff. The GSA’s application of its new proposed certification requirement may also invite such a challenge. To muddy the water more, pending before the Seventh Circuit is a case challenging the DEI Executive Orders, which decision may create a circuit split and thus enable the Supreme Court to weigh in on the DEI Executive Orders’ legality.
TC’s takeaways for Higher Ed Institutions
Higher Ed’s battle with the Trump Administration over DEI can feel a bit like whack-a-mole, with the DCL defeat closely followed by the emerging GSA proposed revisions and then the Fourth Circuit’s ruling upholding the DEI Executive Orders. What makes the GSA’s new proposed certification requirement particularly potent for the Government’s anti-illegal DEI campaign is that it controls the federal purse. This may result in a chilling effect—some institutions may stop programs, even if they have been upheld by courts or authorized by Congress—for fear of losing them. For now, the GSA proposed revisions are only that—proposed. They are not final until the notice and comment period ends, and even then only after the final policy is adopted—which may be different from the proposal. Thus, there is not an immediate date on which GSA has stated financial assistance recipients may expect to see the GSA certification in SAM.
Even if the GSA certification requirement becomes final, a lawsuit may be filed seeking to enjoin it. While the non-binding nature of the July 29th DOJ Guidance may have cloaked it from an attack in court similar to what the DCL faced, any new binding GSA certification requirement will not carry that same shield. The new GSA certification requirement, if implemented as proposed, could face the same legal attacks that the DCL faced (exceeding statutory authority, impeding free speech, and/or unconstitutional vagueness), even if it satisfies threshold notice-and-comment requirements. As with the DCL, litigants might obtain an injunction of the GSA certification requirement, which would delay its implementation, and then litigate to stop it altogether.
It should be further noted that a finalized GSA certification requirement would not likely trigger an immediate new certification for an entity that is already registered with SAM. Rather, generally new certifications must be made when an entity is required to, or chooses to, update or renew its SAM registration.
Although much has happened with the Trump Administration’s war on illegal DEI in the last few months, the bottom line has not changed: the Administration’s anti-illegal DEI efforts will continue, perhaps until the Supreme Court weighs in on the Administration’s broad interpretation of the Students for Fair Admissions, Inc. v. President & Fellows of Harvard College decision. At the end of the day, even if the DEI Executive Orders are declared unlawful and the GSA proposed rule is struck down after becoming final, what matters most is whether the Government’s view of the Students for Fair Admissions, Inc. v. President & Fellows of Harvard College decision is the correct one, and how soon the Supreme Court might make that determination.
Of note, many recent DEI issues were discussed in TC’s recent webinar, Navigating DEI and Anti-Discrimination Compliance in Higher Education.
