On Friday, February 21, 2025, the United States Court for the District of Maryland temporarily enjoined portions of two recent executive orders issued by the Trump Administration targeting DEI-related initiatives and programs. While this is the first court to address the legality of portions of these orders, it will not be the last, as legal challenges to the flurry of executive action taken by the administration continue to be filed. For example, another lawsuit is pending before the United States District Court for the District of Columbia, challenging, among other things, the DEI-related executive orders that are the subject of the District of Maryland’s decision. For now, though, certain provisions of two of the Administration’s executive orders targeting DEI are preliminarily enjoined from enforcement nationwide.
As we discussed here , on January 21, 2025, the Trump Administration issued Executive Order 14173, titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (the “J21 EO”). The day before, on January 20, 2025, the Administration had issued Executive Order 14151, titled “Ending Radical and Wasteful Government DEI Programs and Preferencing” (the “J20 EO”). Both executive orders took aim at Diversity, Equity and Inclusion (“DEI”) and Diversity, Equity, Inclusion and Accessibility (“DEIA”) policies, programs and mandates.
INJUNCTIVE RELIEF SOUGHT BY PLAINTIFFS
A lawsuit was filed in the District of Maryland challenging both orders, the J20 EO and the J21 EO, and seeking injunctive relief, in the matter captioned National Association of Diversity Officers In Higher Education, et al., v. Donald J. Trump, et al., Case No. 1:25-cv-00333. The Court reviewed the following three provisions of the J20 EO and the J21 EO (the “Challenged Provisions”):
- The Termination Provision in the J20 EO, which directed all executive agencies to “terminate . . . ‘equity-related’ grants or contracts”;
- The Certification Provision in the J21 EO, which directed all executive agencies to “include in every contract or grant award” a certification, enforceable through the False Claims Act, that the contractor and grantee “does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws”; and
- The Enforcement Threat Provision in the J21 EO, which directs the Attorney General to take “appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI,” to “deter” such “programs or principles,” and to “identify . . . potential civil compliance investigations[.]”
The Court found that the plaintiffs, in addition to establishing standing and irreparable harm, demonstrated that the Challenged Provisions are unconstitutionally vague, thereby depriving the parties of due process in violation of the Fifth Amendment, and that they “abridge freedom of speech” in violation of the First Amendment. The Court noted that the plaintiffs asserted several other grounds for the injunction, including Separation of Powers and Spending Clause arguments, but the Court determined it did not need to reach those at the preliminary injunction stage, having found the provisions invalid on First and Fifth Amendment grounds. Accordingly, even if the injunction were to be reversed on appeal, the Court could still revisit these other arguments.
INJUNCTIVE RELIEF THAT WAS GRANTED
Pursuant to the Court’s order, the defendants and other persons who are in active concert or participation with the defendants shall not:
- Pause, 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;
- Require any grantee or contractor to make any “certification” or other representation pursuant to the Certification Provision; or
- Bring 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.
LEGAL BASIS FOR ORDERING INJUNCTIVE RELIEF
In reaching this determination, the District Court found that the Challenged Provisions “do not define any of the operative terms, such as ‘DEI,’ ‘equity-related,’ ‘promoting DEI,’ ‘illegal DEI,’ ‘illegal DEI and DEIA policies,’ or ‘illegal discrimination or preferences,’. . . let alone identify the types of programs or policies the administration considers ‘illegal.’” This lack of definition leaves federal contractors, their employees and recipients of federal grants “with no idea whether the administration will deem their contracts or grants, or work they are doing, or speech they are engaged in, to be ‘equity-related,’” and further, “leaves the private sector at a loss for whether the administration will deem a particular policy, program, discussion, announcement, etc. to be among the ‘preferences, mandates, policies, programs, and activities’ the administration now deems ‘illegal.’” Accordingly, the Court found that the plaintiffs were likely to succeed in proving that the EOs were unconstitutionally vague under the Fifth Amendment.
The Court also described the Challenged Provisions as “content- and viewpoint-based restrictions that chill speech as to anyone the government might conceivably choose to accuse of engaging in speech about ‘equity’ or ‘diversity’ or ‘DEI,’” as well as other topics used in the orders such as “unconscious bias,” “cultural sensitivity,” and “inclusive leadership.” They therefore violate the First Amendment.
With respect to scope, the injunction is not limited to only the parties in the case. The Court held that the “Termination and Enforcement Threat Provisions are unconstitutionally vague as to all contractors and grantees who are subject to them, and the Certification and Enforcement Threat Provisions are content- and viewpoint-based restrictions that chill speech as to anyone the government might conceivably choose to accuse of engaging in speech about ‘equity’ or ‘diversity’ or ‘DEI,’ or the other topics.”
Accordingly, the Court determined that the “Plaintiffs have shown they are entitled to an injunction as to the Termination, Certification and Enforcement Threat Provisions, whether as applied to Plaintiffs or to others.” However, the Court denied the request for injunctive relief as it related to the Administration’s ability to investigate practices in the private sector that may violate federal anti-discrimination laws, to the extent it is “merely a directive from the President to the Attorney General to identify ‘[a] plan of specific steps or measures to deter DEI programs or principles . . . that constitute illegal discrimination or preferences.’”
TAKEAWAYS
In the coming days and weeks, we expect the Administration will start to issue additional information as to which specific types of DEI programs it believes violate existing federal law. Even with this decision putting a pause on implementation of certain aspects of the J20 and J21 EOs, we expect litigation challenging DEI programs and efforts to continue, not just by the federal government, but also by state attorneys general. Accordingly, employers should continue to examine, review, modify, and edit, as appropriate, existing “DEI” or “DEI-supportive” programs and policies that could be interpreted as “promoting” illegal DEI and assess the relative risk associated with each, in conjunction with the needs of their operations and workforce and with applicable state and local law.
Update: The evening of February 24, 2025, the Trump Administration filed an appeal of the District of Maryland’s injunction. We will continue to monitor developments through the appellate courts.
