Court Puts Key DEI Executive Order Provisions on Indefinite Hold
On February 21, 2025, a federal court in Maryland issued a nationwide preliminary injunction[1] temporarily blocking the administration from carrying out key provisions in two of President Trump’s Executive Orders on Diversity, Equity and Inclusion: Executive Order 14151 "Ending Radical and Wasteful Government DEI Programs and Preferencing" and Executive Order 14173 "Ending Illegal Discrimination and Restoring Merit-Based Opportunity."
The injunction does not block the Executive Orders in their entirety, but impacts only the provisions that:
- directed all executive agencies to "terminate . . . ‘equity-related’ grants or contracts" (the "Termination Provision");
- directed all executive agencies to "include in every contract or grant award" a certification, enforceable through the False Claims Act, that the contractor or grantee "does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws" (the "Certification Provision"); and
- directed the Attorney General to take "appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI," to "deter" such "programs or principles," and to "identify . . . potential civil compliance investigations" to accomplish such "deter[rence]" (the "Enforcement Threat Provision").
The Court collectively referred to these provisions as the "Challenged Provisions."
From the outset of the opinion, the Court echoed the concerns raised in much published commentary and analysis surrounding the Executive Orders, noting that:
the Challenged Orders do not define any of the operative terms, such as "DEI," "equity-related," "promoting DEI," "illegal DEI," "illegal DEI and DEIA […] policies," or "illegal discrimination or preferences," [...] let alone identify the types of programs or policies the administration considers "illegal."
As a result, the Court noted that the private sector is unable to determine "whether the administration will deem a particular policy, program, discussion, announcement, etc." to be deemed illegal.
Ultimately, the Court held that the plaintiffs had successfully demonstrated that they were likely to prove their arguments that the Termination and Enforcement Threat Provisions were unconstitutionally vague under the Fifth Amendment, and that the Certification and Enforcement Threat Provisions were unconstitutional infringements of the First Amendment. As a result, the Court issued a preliminary injunction prohibiting the administration from:
- pausing, freezing, impeding, blocking, canceling, or terminating any awards, contracts or change the terms of any contract or obligation based on the Termination Provision;
- requiring any grantee or contractor to make any "certification" or other representation pursuant to the Certification Provision; or
- bringing any False Claims Act enforcement action, or other enforcement action, pursuant to the Enforcement Threat Provision, including but not limited to any False Claims Act enforcement action premised on any certification made pursuant to the Certification Provision.
On February 24, 2025, the Department of Justice filed a Notice of Appeal regarding both the Court’s Memorandum Opinion and Order for Preliminary Injunction. Accordingly, we will continue to monitor these developments and will provide additional updates as necessary.
In the meantime, private employers including federal contractors should remain aware that the preliminary injunction does not prohibit the federal government from taking enforcement action against employers that it believes are engaging in illegal DEI.[2] Accordingly, the steps we outlined in our February 19, 2025 White Paper remain viable next steps.
If you have any questions regarding the impact of the DEI Executive Orders and subsequent related actions, please do not hesitate to contact Kim Korando, James King or a member of Smith Anderson’s Workplace Law group.
[1] Nat’l Assoc. of Diversity Officers in Higher Ed. v. Trump, D. Md., No. 1:25-cv-00333, 2/21/25 (the Memorandum Opinion is available here and the Preliminary Injunction is available here).
[2] Moreover, the Court did not enjoin the requirement that the Attorney General prepare a report with recommendations for enforcing Federal civil rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI.
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