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DEI EXECUTIVE ORDERS UPDATE: Federal Court Pauses Significant Portion of President Trump’s Orders

Update

On March 3, 2025, a Maryland federal judge denied the government’s motion to stay the injunction on President Trump’s DEI executive orders pending appeal.

Judge Abelson reaffirmed that the plaintiffs are likely to succeed on their claims that the EOs contain unconstitutionally vague language, and explained that Defendants had not made the requisite showing that a stay pending appeal was appropriate here.

As a result, the injunction remains in place nationwide while the appeal moves forward. Briefing on the preliminary injunction ruling is scheduled to conclude May 8, 2025, after which there may be oral argument before the court renders a decision. A subsequent appeal to the U.S. Supreme Court may be in store thereafter.

The Bottom Line

  • On Friday, February 21, 2025, a Maryland federal judge granted a nationwide preliminary injunction blocking enforcement of three key provisions of the new administration’s executive orders, which directed: (1) all federal agencies to terminate “equity-related” grants or contracts; (2) federal agencies to require future grant award recipients and federal contractors to certify that they do not “operate any programs promoting DEI;” and (3) the Attorney General to take action to “deter” DEI in the private sector.
  • On February 24 and 25, 2025, the government filed a notice of appeal and a motion to stay the preliminary injunction order pending appeal. Employers should continue to monitor the development of this case and consult with legal counsel as they shape their continued DEI efforts moving forward. The Court has promised a ruling on the stay by Monday March 3.

A federal court in Maryland granted a nationwide preliminary injunction finding constitutional deficiencies with three key aspects of President Trump’s Executive Orders (the EOs) concerning diversity, equity, and inclusion (DEI), which we discussed in depth in our previous client alert.

The Lawsuit

On February 3, 2025, a coalition of plaintiffs featuring the National Association of Diversity Officers in Higher Education, American Association of University Professors, Restaurant Opportunities Centers United, and the Mayor and City Council of Baltimore, Maryland (the Plaintiffs Coalition) brought a lawsuit in Maryland federal court challenging the constitutionality of President Trump’s EOs.

Specifically, the lawsuit alleges that the EOs:

  • are unconstitutionally vague and violate the Due Process clause of the Constitution because they fail to define key terms, including “deter” “DEI,” “equity,” and “equity-related;”
  • violate the First Amendment because the President’s directive to the Attorney General and the EOs’ requirement that future grant award recipients and federal contractors be required to certify that they do not “operate any programs promoting DEI” constitute impermissible content and viewpoint restrictions; and
  • violate the separation of powers by attempting to infringe on and dictate the spending powers of Congress and exceed the President’s Constitutional authority by the directive to unilaterally terminate “equity-related grants and contracts.”

The Preliminary Injunction Ruling

On February 21, 2025, United States District Judge for the District of Maryland, Adam B. Abelson, granted a nationwide preliminary injunction finding that the Plaintiffs Coalition was likely to succeed on the merits of at least one of its constitutional arguments with respect to each of the Termination Provision, the Certification Provision, and the Enforcement Threat Provision (defined below).

  • The Termination Provision: The EO directs federal agencies to terminate “equity-related grants and contracts.”
    • The Court found that the Plaintiffs Coalition established a likelihood of success on the merits of their argument that the Termination Provision is unconstitutionally vague, both because there is a potential for arbitrary enforcement and because the vagueness of the terms offers “insufficient notice to current grantees about whether and how they can adapt their conduct to avoid termination of their grants or contracts.”
  • The Certification Provision: The EO requires future grant award applicants and federal contractors to certify that they do not “operate any programs promoting DEI.”
    • The Court preliminarily enjoined the Certification Provision under a First Amendment theory, finding that the provision impermissibly seeks to restrict protected speech. The vagueness of key terms like “DEI” factor into this holding as well; the Court observed that the government itself was unable to articulate what constitutes “DEI-related speech that violates federal anti-discrimination laws.” The Court remarked that this uncertainty would likely chill the speech of those seeking to comply with the order.
  • The Enforcement Threat Provision: The EO directs the Attorney General to investigate and “deter” DEI in the private sector.
    • Here, the Court issued a split ruling. It preliminarily enjoined the provision with respect to its threat to initiate enforcement actions (in the form of civil compliance investigations) for engaging in protected speech, because the provision would “appl[y] broadly to the private sector.” The vagueness of terms like “DEI” again featured prominently in the Court’s analysis, which both supported its finding on First Amendment grounds, as well as Due Process grounds. However, the Court declined to issue a preliminary injunction with respect to one portion of this provision, leaving undisturbed the President’s directive to the Attorney General to merely “investigate” the extent to which “DEI programs or principles . . . constitute illegal discrimination or preferences.”

An Outlook on What’s to Come

As noted above, this ruling is only the beginning of this story. A preliminary injunction is temporary relief to preserve the status quo, while the parties continue to litigate the case. The Plaintiffs Coalition ultimately seeks a permanent injunction striking down the challenged provisions of the EOs.

The government has already indicated its intent to appeal the preliminary injunction order to the United States Court of Appeals for the Fourth Circuit, filing a notice of appeal on February 24, 2025. The following day, the government filed a motion to stay the preliminary injunction order pending the appeal, requesting an expedited ruling on that motion.  The motion further informed that, in the absence of a stay from the District Court, the government intended to seek immediate relief from the Fourth Circuit. The District Court issued an Order this afternoon (February 26, 2025), stating that it will rule on the motion to stay on Monday, March 3, 2025.

This is a rapidly developing situation, which we continue to monitor closely. Employers should stay informed and consult with legal counsel as they shape their continued DEI efforts moving forward.