The Retiree Advocate

Did you know that, in the Trump regime, up now means down? That’s right; Trump’s administration is issuing guidance and executive orders that turn the nonprofit sector on its head. Existing laws are being reverse- engineered to make it discriminatory to reverse discrimination. Organizations working to reverse inequities and injustice are scrambling to understand how they’re affected, and how to position themselves to avoid nuisance complaints and lawsuits. Advocacy and service organizations will have to recast how they represent their work, hiring, and programming.

But first, what, exactly, are executive orders and guidance? Executive orders are directives, signed by the president, that have the force of law. They can be nullified by the courts or modified through legislation, but they remain in effect until they are rescinded by a president or expire on a specified date. Trump has issued hundreds. For handy reference, the National Council of Nonprofits has published a chart of executive orders with sizable sec- tor impacts. Organizations centering diversity, equity, and inclusion (DEI); immigrant justice; health care; envirormental justice; LGBTQ+; and civic access are among those hardest hit.

Unlike executive orders, official guidance does not have the force of law. However, guidance from Attorney General Pam Bondi has a huge impact on organizations. Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination redefines how the federal government considers DEI. Centering the interests of a specific population is now discrimination on the basis of a protected characteristic. The Guidance maintains that programs that “separate or restrict access based on race, sex, or other protected characteristics…generally violate federal law by creating unequal treatment or reinforcing stereotypes, regardless of the stated goal.”

But lest we assume consistency matters, “failing to maintain sex-separated athletic competitions and intimate spaces can also violate federal law.” Therefore, “organizations should affirm sex-based boundaries rooted in biological differences.”

The assaults on organizations are mind-boggling in scope and very destabilizing. Among the most impacted:
•    Race-based scholarships and program participation;
•    Preferential hiring or promotion;
•    Access to facilities or resources based on race, ethnicity, income level or census tract.
Language to serve as proxies for “preferential treatment” is explicit in Bondi’s Guidance. Cultural competence, lived experience and diversity statements are cited as examples of proxies.
Instead, organizations are supposed to be “merit-based.” In other words, the protected class is now those who benefit from the “affirmative action of generational wealth,” as Michelle Obama aptly put it.

The Department of Justice, alone, canceled 373 grants, totaling $500 mil- lion, affecting 221 organizations. These grants had been approved by Congress, which sets policy through its power of the purse. Eliminating these grants puts the president’s actions at odds with Congressional intent. But, with this administration, that’s the point.

The implications are huge. Government grant cycles have been canceled. Foundations have redirected their grants to maintain the operations of vital organizations under sustained assault. Legal service organizations are deluged by preparing legal challenges to fight these orders.

Nonprofits must also expect nuisance complaints and lawsuits requiring defense, intended to divert re- sources away from programming. One tool will be scrutiny of IRS Form 990, the detailed nonprofit tax filing, which anyone may inspect online. (Religious congregations are exempt from public scrutiny). Ongoing foci in the 990 for right-wing trolls include:
•    Using contractors in lieu of staff. Expect increased scrutiny here. The IRS criteria are clearly spelled out;
•    Fundraising costs that appear disproportionately high, relative to the budget;
•    Advocacy activities that might constitute lobbying in excess of thresholds;
•    Lack of conflict of interest and
whistleblower policies;
•    Absence of financial policies and
procedures.

Meeting minutes, annual reports and job announcements will also face scrutiny. One growing vulnerability: agencies record meeting minutes using Zoom instead of taking written minutes. It is very tempting, but don’t do it. People say all sorts of things in
meetings that shouldn’t be captured for all time. Expect meeting minutes to be requested with complaints. Referring to a contractor as a deputy director in a recorded board meeting, for example, could leave an organization very vulnerable. We can expect complaints around phrasing of job postings and program eligibility. Any public-facing document is a potential avenue of exposure for an organization.
•    To read the Attorney General’s memo, search for Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination.
•    A tool kit for protecting nonprofits from scurrilous attacks is Nonprofit Toolkit: Resources for Organizations Facing Government Investigations.
•    A New York Times article about what’s coming is "You May Not Be Trump’s Target This Time, but You Could Be Next."