PROVIDENCE – A federal judge on April 2 denied the American Civil Liberties Union of Rhode Island Inc.’s and arts organizations’ request for a preliminary injunction against the National Endowment for the Arts in a legal battle over a new certification requirement that states applicants must attest that they will not promote gender ideology to get NEA funding.
The ACLU along with the national American Civil Liberties Union, Rhode Island Latino Arts, Boston-based The Theater Offensive, Theatre Communications Group and National Queer Theater – both based in New York –
filed the lawsuit on March 6 against the NEA and its acting chair, Mary Anne Carter. The suit centers around President Donald Trump’s executive order signed in January directing that federal funds “shall not be used to promote gender ideology.”
Along with asking for a temporary restraining order against the NEA’s new requirement ahead of the April 7 grant deadline, the organizations also asked the court to declare that the NEA’s certification requirement and prohibiting funding for projects that “promote gender ideology” is unconstitutional. The NEA
has since removed a certification requirement asking artists to attest they will not “promote gender ideology” to obtain federal funding from the endowment. However, the plaintiffs argued the NEA has not agreed to remove its eligibility requirement, where the nonprofit says any projects appearing to promote gender ideology would be disqualified from federal funding.
On April 2, a U.S. District Court of Rhode Island judge offered a mixed ruling. The judge, the ACLU said late Thursday, held that the NEA’s Feb. 6 decision to make to make any project that promotes what the government deems to be gender ideology ineligible for funds “likely violated the First Amendment and exceeded its statutory authority.” However, the judge concluded that because the NEA is currently determining whether to impose this ban, the court “could not get in the way” of the NEA’s decision-making process.
ACLU Executive Director Steven Brown said in a statement the court’s decision leaves the union’s clients in “a state of censorial limbo.” He did say the ACLU remains committed to the case for defending the arts and resisting attempts to “speech simply because the current administration does not like or agree with it.”
The NEA in its argument said this evaluation of Trump’s executive order would not be completed until April 30, according to the ACLU. At that time, the NEA, the ACLU said, may “retroactively” apply the funding restriction to already-submitted projects. Also, funding applications filed with the NEA “may be subject to as-yet-undecided rules, including the funding bar,” the ALCU said.
Marta V. Martinez, Rhode Island Latino Arts’ executive director, said in a statement this order “fails” to bring clarity organizations need to apply for funds for projects that allow Latinx artists, especially those who are queer, trans or nonbinary, to show up as their whole selves “without fear of erasure of censorship.”
“Artistic freedom and equal dignity are fundamental to a just and vibrant society and despite today’s ruling, we will continue to create space for artists to tell their truths, challenge norms, and build bridges through their work,” Martinez said.
ACLU staff attorney Vera Eidelman said in a statement that opinion “makes clear” the NEA cannot lawfully reimpose its viewpoint-based eligibility bar. Though the plaintiffs didn’t receive sought-after relief, the ACLU, Eidelman said, remain hopeful all artists will remain eligible for the “support and recognition they deserve in this funding cycle and beyond.”
James Bessette is the PBN special projects editor, and also covers the nonprofit and education sectors. You may reach him at Bessette@PBN.com. You may also follow him on X at @James_Bessette.
