Archives for February 2025

By: Federal Court Temporarily Blocks Enforcement of President Trump’s Anti-Diversity Equity and Inclusion Executive Orders

On February 21, 2025, the federal district court for the District of Maryland blocked President Donald Trump from enforcing a majority of two January 2025 Executive Orders that seek to eliminate diversity, equity and inclusion (“DEI”) initiatives in government agencies, educational institutions, and the private sector. The first Executive Order was signed on January 20, 2025, and is entitled “Ending Radical and Wasteful Government DEI Programs and Preferencing.” (the “First Order”). See our prior article on the First Order here. The second Executive Order was signed on January 21, 2025, and is entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” (the “Second Order”). (collectively “Executive Orders”).  

The court held that the Executive Orders impermissibly target the expression of views supportive of equity, diversity and inclusion and violates the First and Fifth Amendments of the United States Constitution. The federal court noted that the Executive Orders are in fact antithetical to federal anti-discrimination law:

“[E]nsuring equity, diversity, and inclusion has long been a goal, and at least in some
contexts arguably a requirement, of federal anti-discrimination law. But the
administration has declared ‘DEI’ to be henceforth ‘illegal,’ has announced it will be
terminating all ‘equity-related’ grants or contracts’—whatever the administration
might decide that means—and has made ‘practitioners’ of what the government
considers ‘DEI’ the targets of a ‘strategic enforcement plan.’”

The lawsuit was brought by four plaintiffs that include the Mayor and City Council of Baltimore, the National Association of Diversity Officers in Higher Education (“NADOHE”), the American Association of University Professors (“AAUP”), and the Restaurant Opportunities Centers United (“ROC United”). The plaintiffs represent a coalition of faculty, academic professionals, chief diversity officers and professionals, restaurant workers, and governmental representatives who work for institutions that receive federal government grants and contracts for their work in DEI. These groups sued President Trump, the U.S. Attorney General, and various other federal government agencies and agency heads based on the Executive Orders. National Association of Diversity Officers in Higher Education, et al. v. Donald J. Trump, et al., Case No. 1:25-Cv-00333-ABA (D. Md. 2025).  

The court held that the Executive Orders violated the plaintiffs’ freedom of speech and due process rights under the First and Fifth Amendments with respect to three primary provisions of the Executive Orders:

1. Termination Provision (this provision requires that all executive agencies terminate equity-related grants or contracts);
2. Certification Provision (this provision requires that all executive agencies include in every contract or award a certification that the federal contractor or grantee does not operate any programs promoting DEI that violate applicable Federal anti-discrimination law); and,
3. Enforcement Threat Provision (this provision requires that the Attorney General take appropriate measures to end illegal discrimination and preferences, including DEI, to deter such programs and conduct compliance investigations to encourage such deterrence, which largely targets private companies and educational institutions). 

The Court noted that all three provisions of the Executive Orders are unconstitutional because they are vague, abridge freedom of speech in the form of viewpoint discrimination, and condition the award of federal funding on viewpoints that are consistent with the Trump administration’s ideology. “[A]lthough the government may cho[se] to fund one activity to the exclusion of another [ ], it may not punish government contractors or grantees ‘because of their speech on matters of public concern.’” 

The court enjoined the Certification Provision and Enforcement Threat Provisions because they raised First Amendment concerns given that they impermissibly forced the “plaintiff’s to either restrict their legal activities and expression that are arguably related to DEI or forgo federal funding altogether.” Similarly, the court held that the Enforcement Threat Provision, which broadly applies to the private sector as well, violated the Constitution because it threatens the “initiation of enforcement action against Plaintiffs (in the form of civil compliance investigations) for engaging in protected speech.” The Executive Orders also unconstitutionally imposed content-based “viewpoint discrimination” in violation of the First Amendment, which prohibits the government from “seeking to regulate speech” as a condition of funding (i.e., the termination of government contracts required under the Termination Provision).  

The court also held that the Executive Orders violated the plaintiff’s Fifth Amendment due process rights on grounds that they are unconstitutionally vague (with a strong likelihood of arbitrary and discriminatory enforcement). Moreover, the court determined that the Executive Orders failed to provide sufficient notice to grantees regarding whether and how they could adapt their conduct to avoid terminating their respective grants or contracts. 

Under the preliminary injunction, the only remaining provision of the Executive Orders in place includes the provisions authorizing the Attorney General to prepare reports or conduct limited investigations. However, the Termination Provision, Certification Provision, and Enforcement Threat Provisions are no longer enforceable. It is expected that the Trump Administration will challenge this ruling at the district court level and likely in further appellate proceedings. In the meantime, the preliminary injunction provides a temporary reprieve regarding anti-DEI efforts by the Trump Administration.