Overview
Shortly after taking office, President Donald Trump issued two executive orders (EOs) targeting diversity, equity, and inclusion (DEI) programs: EO 14151, “Ending Radical And Wasteful Government DEI Programs and Preferencing,” and EO 14173, “Ending Illegal Discrimination And Restoring Merit-Based Opportunity” (collectively, the anti-DEI EOs).
On February 21, 2025, following a lawsuit filed by the National Association of Diversity Officers in Higher Education and the American Association of University Professors (collectively, the plaintiffs), the US District Court for the District of Maryland granted a motion for preliminary injunction based on First and Fifth Amendment challenges to the anti-DEI EOs. The court’s order prevents certain aspects of the EOs from taking effect nationwide until a final determination is made on the plaintiffs’ constitutional challenge.
In Depth
LEGAL OVERVIEW
The plaintiffs challenged the following three specific provisions in the anti-DEI EOs as being unconstitutional:
- Termination Provision: A provision that directed federal agencies to terminate “equity-related” grants or contracts within 60 days.
- Certification Provision: A provision that required federal agencies to include a term in contracts and grants requiring federal contractors and grantees to certify that they do not operate any programs promoting DEI that violate federal anti-discrimination laws as a condition of receiving funding.
- Enforcement Threat Provision: A provision that directed the attorney general to take measures to deter DEI programs and identify potential civil compliance investigations.
The plaintiffs argued that these provisions collectively violate the First and Fifth Amendments because they are designed to chill viewpoint speech. They also asserted that the provisions are unconstitutionally vague in informing federal contractors that may be exposed to liability under the False Claims Act what their obligations are and how to comply with them.
The court agreed with the plaintiffs, concluding that:
- The Certification and Enforcement Threat Provisions likely violate the First Amendment by chilling speech and imposing viewpoint-based restrictions; and
- The Termination and Enforcement Threat Provisions are likely unconstitutionally vague, failing to provide clear guidance and inviting arbitrary enforcement.
WHAT COMPANIES SHOULD DO NEXT
While the nationwide injunction pauses some of the more controversial provisions included in the anti-DEI EOs, it is only a preliminary finding, and the Trump administration may take steps to challenge it. Companies should use this time to work with legal counsel to proactively audit their DEI policies to ensure compliance with existing laws while maintaining alignment with company values.
Joseph Anderson, a law clerk in New York office, also contributed to this client alert.
