On March 14, 2025, in National Association of Diversity Officers in Higher Education, et al. v. Trump, the U.S. Court of Appeals for the Fourth Circuit granted the government's motion to stay the preliminary injunction that blocked key components of President Trump's executive orders (EO) related to diversity, equity, and inclusion (DEI) (see HERE). The Fourth Circuit's decision reverses U.S. District Judge Adam B. Abelson's March 3 ruling, denying the Trump Administration's motion to stay the nationwide preliminary injunction (see HERE). Accordingly, the government may once again enforce EO 14151, Ending Radical and Wasteful Government DEI Programs and Preferences, and EO 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity.
Although the three-judge panel unanimously agreed to stay the nationwide injunction, all three judges issued separate concurring opinions. Judges Albert Diaz and Pamela Harris found that so long as the EOs are narrowly construed, they are not unconstitutional on their face. Both Judges wrote approvingly of DEI initiatives, stating that "people of good faith who work to promote, diversity, equity, and inclusion deserve praise, not opprobrium."
Based, in part, on the government's explanation that the Certification and Enforcement Threat provisions "apply only to conduct that violates existing federal anti-discrimination law," Judge Harris explained that "[t]he Executive Orders do not purport to establish the illegality of all efforts to advance diversity, equity or inclusion, and they should not be so understood." However, Judge Harris clarified that "[a]gency enforcement actions that go beyond the Orders' narrow scope may well raise serious First Amendment and Due Process concerns[.]"
Judge Allison Jones Rushing likewise stated that the fact that the case challenges the EOs themselves – as opposed to particular agency actions – highlights questions about the ripeness of the case and the standing of plaintiffs. Judge Rushing, however, criticized her colleagues' comments about DEI initiatives, stating that "[a] judge's opinion that DEI programs 'deserve praise, not opprobrium' should play absolutely no part in deciding this case."
Reinstatement of Key Provisions Under EO 14151 and EO 14173
As a result of the Fourth Circuit's decision, the following key provisions have been reinstated:
- Termination Provision: By March 21, 2025, federal agencies must terminate all "equity-related grants or contracts."
- Certification Provision: By April 20, 2025, federal contractors and subcontractors must certify that they (1) are in compliance with all applicable federal anti-discrimination laws for False Claims Act purposes, and (2) do not operate any programs "promoting DEI" that violate any applicable federal anti-discrimination laws.
- Enforcement Threat Provision: By May 21, 2025, all federal agencies must submit a report containing recommendations for enforcing federal civil rights laws and taking other "appropriate measures" to end "illegal discrimination and preferences, including DEI" in the private sector. The report must (1) include a plan to "deter DEI programs and principles" that constitute illegal discrimination, and (2) identify up to nine potential targets for civil compliance investigations.
For additional information, see HERE.
Pending Legal Challenges to the Anti-DEI Executive Orders I
In addition to the National Association of Diversity Officers in Higher Education, et al. v. Trump, there are several other pending legal challenges to the anti-DEI EOs, including the following:
- National Urban League v. Trump (1:25-cv-00471): Plaintiffs argue anti-DEI EOs 14151 and 14173, and gender ideology-related EO 14168 (see HERE), violate plaintiffs' rights under the First Amendment's Free Speech Clause and the Fifth Amendment's Due Process Clause by terminating equity-related grants, and prohibiting federally funded entities from recognizing transgender individuals and engaging in DEI programs. A preliminary injunction hearing has been scheduled for March 19, 2025.
- San Francisco AIDS Foundation v. Trump (4:25-cv-01824): Plaintiffs argue EOs 14151, 14173, and 14168 violate plaintiffs' rights under the First Amendment's Free Speech Clause, Fifth Amendment's Due Process Clause, and Fourteenth Amendment's Equal Protection Clause by terminating equity-related grants and prohibiting federal contractors and grant recipients from recognizing transgender individuals and implementing DEI principles in their work.
- Chicago Women in Trades v. Trump (1:25-cv-02005): Plaintiffs argue EOs 14151 and 14173 are unconstitutionally vague in violation of the First Amendment's Free Speech Clause and the Fifth Amendment's Due Process Clause, and further, that the EOs unconstitutionally condition federal funds on an agreement not to engage in protected speech.
Employer Takeaways
Pursuant to the Fourth Circuit's order to expedite briefing in the Trump Administration's appeal, the government's opening brief is due April 8, 2025, and the plaintiffs' response brief is due May 8, 2025. In the meantime, employers – including federal contractors, subcontractors, grant recipients, and all other private employers – can refer to takeaways noted in our prior eAlert HERE. For best practices to implement DEIA initiatives in a legally compliant manner, see HERE. As always, employers should ensure their DEIA policies comply with federal, state, and local laws.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
