Changes to NEA policy in response to ACLU lawsuit do not solve the problems for arts organizations or deprive court of jurisdiction, attorneys argue
On behalf of art organizations, the ACLU and the ACLU of Rhode Island argued today that an ideological restriction from the National Endowment for the Arts (NEA) on grant funding violates the First Amendment, the Fifth Amendment, and the Administrative Procedure Act.
In response to an executive order from the Trump administration earlier this year, the NEA imposed a new requirement that forced grant applicants to attest that they would not use funds to promote “gender ideology” and that blocked any projects that the government could perceive as “promoting gender ideology” from being eligible for funding.
The ACLU and the ACLU of Rhode Island filed suit in March. In response to the lawsuit, the NEA agreed to drop the certification requirement until the case was decided. It subsequently extended the application deadline to April 7 and temporarily removed the funding block until the agency determines how to implement the executive order by April 30. The government has not disavowed reimposing the exact same eligibility prohibition and any prohibition will retroactively apply to current applicants, who must submit by April 7 and will have no opportunity to alter or amend their applications. The judge indicated he hopes to issue a decision by April 4.
“The government is playing games with our clients’ First Amendment rights,” said Vera Eidelman senior staff attorney with the ACLU’s Speech, Privacy, and Technology Project. “We are in court today to make sure that the NEA can’t pull a bait-and-switch on arts organizations by allowing them to apply free of restrictions, only to disqualify them later. The temporarily suspended rules must be struck down to safeguard artistic expression and First Amendment protections for all.”
The basis for the contested NEA requirements is a January 2025 executive order, signed by President Donald Trump, that directs that “[f]ederal funds shall not be used to promote gender ideology.”
"We have used NEA funding to provide a safe haven for censored queer artists around the globe since 2019,” said Rose Oser, Producing Director of National Queer Theater. “Losing the right to compete for that funding does not just impact our budgets. It sends a message that trans artists and trans stories do not deserve to be heard. But we will not be silenced. We will not entertain this administration’s aggressive efforts to push trans people out of public life, and we won’t allow them to bend the arts world to fit their narrow definitions of gender.”
The ACLU, the ACLU of Rhode Island, David Cole, and Lynette Labinger, cooperating counsel for the ACLU-RI, filed suit earlier this month in the U.S. District Court of Rhode Island on behalf of Rhode Island Latino Arts; National Queer Theater; The Theater Offensive; and the Theater Communications Group.
"Rhode Island Latino Arts would like to apply for a grant that could potentially run afoul of the ban on 'promoting gender ideology,' however the NEA defines that nebulous term,” said Steven Brown, executive director of the ACLU of Rhode Island. “Because the NEA has now declared that they will not let applicants know whether they are going to impose this condition until after the grant application deadline has passed, RILA has been placed in an impossible position in applying for funds. Without a court order clearly barring the NEA's use of this unconstitutional criterion, Rhode Island arts groups — and arts organizations across the country — will be left in an intolerable state of limbo."
