[co-author: Alivia Combe-DuQuet]
On March 14, 2025, the US Court of Appeals for the Fourth Circuit issued a stay on the US District Court for the District of Maryland’s nationwide preliminary injunction of US President Donald Trump’s executive orders (EOs) that target diversity, equity, and inclusion (DEI) programs – namely, EO Nos. 14151 and 14173 – which allows the government to implement and enforce the EOs while litigation continues.
In Depth
In granting the stay, each member of the three-judge panel issued a concurring opinion explaining their reasoning. Chief Judge Albert Diaz and Judge Pamela Harris agreed that the government showed a sufficient likelihood that it will succeed in demonstrating that the EOs are not unconstitutional, in part because the EOs are limited in scope. For example, the EOs do not state that all efforts to advance DEI are illegal; rather, the “certification” and “enforcement threat” provisions apply only to conduct that violates existing anti-discrimination laws. Additionally, the “termination” provision directs the termination of grants based on the nature of the grant-funded activity, not the grantee’s external speech or activities, which both judges noted might implicate First and Fifth Amendment concerns. Judge Diaz further hinted that the anti-DEI EOs may be unconstitutionally vague as they lack clear definitions of what types of programs the Trump administration seeks to eliminate. Judge Allison Jones Rushing considered the injunction overbroad and believes the government is likely to demonstrate that the anti-DEI EOs are constitutional directives by the president to his officers. Judge Rushing also noted that the case may not be ripe for review because there is no specific agency action being challenged.
The ruling is not a final decision on the legality of the EOs. It merely allows the government to administer the policy while litigation continues. The Fourth Circuit will retain jurisdiction to hear the case on the merits and has agreed to an expedited briefing.
A final ruling on the merits is expected in the next three to six months. In the meantime, employers should keep working with legal counsel to proactively audit their DEI policies to ensure compliance with existing laws while maintaining alignment with company values.
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