Last week, a federal court in Maryland issued a memorandum opinion and a nationwide preliminary injunction preventing enforcement of certain provisions of President Donald Trump’s Executive Orders related to diversity, equity, and inclusion (DEI) programs. Defendants have already appealed the order.
The Executive Orders and Litigation. To briefly recap, shortly after taking office, the President signed two Executive Orders related to DEI: Ending Radical and Wasteful Government DEI Programs and Preferencing (J20 Order) and Ending Illegal Discrimination and Restoring Merit-Based Opportunity (J21 Order).1 Numerous plaintiffs have filed lawsuits seeking orders preventing enforcement of the Executive Orders.2
Affected Provisions. On February 21, 2025, the United States District Court for the District of Maryland issued a nationwide preliminary injunction with respect to (1) the J20 Order’s requirement that agencies terminate equity-related grants or contracts (the Termination Provision); (2) the J21 Order’s requirement that federal contracts include a term requiring contractors and grant recipients to (a) agree that compliance with federal anti-discrimination laws is material to the government’s payment decision and (b) certify that they do not operate any DEI programs that violate federal anti-discrimination laws (the Certification Provision); and (3) the J21 Order’s requirement that the Director of the Office of Management and Budget submit a report recommending ways to deter DEI programs and identifying potential compliance investigations (the Enforcement Threat Provision). The Court concluded the provisions likely violate the First Amendment (free speech) and the Fifth Amendment (due process).
Prohibited Enforcement. Under the preliminary injunction, Defendant agencies may not:
- “[P]ause, freeze, impede, block, cancel, or terminate any awards, contracts or obligations (‘Current Obligations’), or change the terms of any Current Obligation, on the basis of the Termination Provision”;
- “[R]equire any grantee or contractor to make any ‘certification’ or other representation pursuant to the Certification Provision”; or
- “[B]ring any False Claims Act enforcement action, or other enforcement action, pursuant to the Enforcement Threat Provision, including but not limited to any False Claims Act enforcement action premised on any certification made pursuant to the Certification Provision.”3
Implications Going Forward. The preliminary injunction offers temporary protection to government contractors, grantees, and other employers from enforcement of the enjoined provisions. However, Defendants could ask the judge who issued the preliminary injunction to reconsider his order, and Defendants have already appealed the order to the Fourth Circuit. And at least for now, the government may still act pursuant to provisions of the Executive Orders that have not been enjoined, and U.S. and state attorneys general may still enforce civil rights laws.4 As such, affected parties — including government contractors, grantees, and employers — should remain diligent in monitoring the multiple lawsuits related to the Executive Orders progress, and continue to evaluate their policies to ensure legal compliance with antidiscrimination laws and laws affecting DEI programs. Snell & Wilmer’s Special Litigation and Compliance team continues to monitor the rapidly evolving legal situation.
Footnotes
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Ryan J. Regula, Charlene A. Warner, and Lilly M. Harris, What President Trump’s Executive Orders Could Mean for the Disadvantaged Business Enterprise Program (Feb. 3, 2025), https://www.swlaw.com/publication/what-president-trumps-executive-orders-could-mean-for-the-disadvantaged-business-enterprise-program/.
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National Association of Diversity Officers in Higher Education v. Trump, 1:25-cv-00333 (D. Md.); National Urban League v. Trump, 1:25-cv-00471, (D.D.C.); San Francisco A.I.D.S. Foundation v. Trump, 3:25-cv-01824, (N.D. Cal.); Chicago Women in Trades v. Trump, 1:25-cv-02005, (N.D. Ill.); see also Ryan J. Regula, Charlene A. Warner, and Lilly M. Harris, Lawsuit Threatens DEI-Related Executive Orders (Feb. 7, 2025), https://www.swlaw.com/publication/lawsuit-threatens-dei-related-executive-orders/.
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Order, National Association of Diversity Officers in Higher Education v. Trump, 1:25-cv-00333 (D. Md. Feb. 21, 2025).
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Ryan J. Regula, Charlene A. Warner, and Lilly M. Harris, U.S. and State Attorneys General Indicate Readiness to Bring DEI Enforcement Actions (Feb. 19, 2025), https://www.swlaw.com/publication/u-s-and-state-attorneys-general-indicate-readiness-to-bring-dei-enforcement-actions/.
