Cases & Developments

Opinion and Order Granting Defendants’ Motion for a Stay of the Preliminary Injunction. Plaintiffs, the National Association of Diversity Officers in Higher Education, the American Association of University Professors, Restaurant Opportunities Centers United, and the Mayor and City Council of Baltimore, Maryland sought preliminary and permanent injunctions prohibiting Defendants from enforcing Executive Orders 14151 “Ending Radical Government DEI Programs and Preferences” and 14173 “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” and a declaration that the two Executive Orders are unlawful and unconstitutional. On February 21, 2025, the district court granted a preliminary injunction. Defendants then sought to stay the injunction pending an interlocutory appeal, which the lower court denied. However, the Fourth Circuit determined that Defendants satisfied the factors for a stay under Nken v. Holder, agreed with Defendants’ view that the two Executive Orders are of “distinctly limited scope. . . [and] do not purport to establish the illegality of all efforts to advance diversity, equity, or inclusion, and they should not be so understood,” and also found that the challenged provisions do not on their face, violate the First or Fifth Amendments. Concurring opinions further critiqued the scope of the underlying preliminary injunction, which enjoined nondefendants from taking action against nonplaintiffs.  

Order denying Motion to Stay Injunction Pending Appeal. Plaintiffs, the National Association of Diversity Officers in Higher Education, the American Association of University Professors, Restaurant Opportunities Centers United, and the Mayor and City Council of Baltimore, Maryland sought preliminary and permanent injunctions enjoining defendants from enforcing Executive Orders 14151, “Ending Radical Government DEI Programs and Preferences” (J20) and 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (J21) and a declaration that the Orders are unlawful and unconstitutional. Plaintiffs alleged that defendants Donald J. Trump; the Departments of Health and Human Services, Education, Labor, Interior, Commerce, Agriculture, Energy, Transportation, and Justice; the National Science Foundation; and the Office of Management and Budget violated the Free Speech Clause of the First Amendment, as well as Separation of Powers and that both Orders are (1) unreasonably vague as they fail to define the key terms “Diversity, Equity, and Inclusion” (“DEI”), “Diversity, Equity, Inclusion, and Accessibility” (“DEIA”), “environmental justice,” “equity-related,” and “illegal discrimination or preferences,” and (2) suppress free speech on DEI and DEIA principles. Plaintiffs further alleged that the J21 Order is designed to chill free speech on matters of substantial political importance, and the lack of clear definitions leave plaintiffs as potential targets with no guidance as to what speech or which actions the Order includes. The preliminary injunction prohibits defendants other than the President from: (1) pausing, freezing, impeding, blocking, cancelling, or terminating any awards, contracts or obligations (“Current Obligations”); (2) “changing the terms of any Current Obligation, on the basis of the Termination Provision; (3) “requir[ing] any grantee or contractor to make any ‘certification’ or other representation pursuant to the Certification Provision;” or (4) “bring[ing] 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 21, 2025, the court granted a preliminary injunction. Defendants then sought to stay the injunction pending an interlocutory appeal, which the court denied.  

Order and Opinion granting in part Motion for Preliminary Injunction. Plaintiffs, the National Association of Diversity Officers in Higher Education, the American Association of University Professors, Restaurant Opportunities Centers United, and the Mayor and City Council of Baltimore, Maryland seek preliminary and permanent injunctions enjoining defendants from enforcing Executive Orders 14151, “Ending Radical Government DEI Programs and Preferences” (J20) and 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (J21) and a declaration that the Orders are unlawful and unconstitutional. Plaintiffs alleged that defendants Donald J. Trump; the Departments of Health and Human Services, Education, Labor, Interior, Commerce, Agriculture, Energy, Transportation, and Justice; the National Science Foundation; and the Office of Management and Budget violated the Free Speech Clause of the First Amendment, as well as Separation of Powers and that both Orders are (1) unreasonably vague as they fail to define the key terms “Diversity, Equity, and Inclusion” (“DEI”), “Diversity, Equity, Inclusion, and Accessibility” (“DEIA”), “environmental justice,” “equity-related,” and “illegal discrimination or preferences,” and (2) suppress free speech on DEI and DEIA principles. Plaintiffs further alleged that the J21 Order is designed to chill free speech on matters of substantial political importance, and the lack of clear definitions leave plaintiffs as potential targets with no guidance as to what speech or which actions the Order includes. The preliminary injunction prohibits defendants other than the President from: (1) pausing, freezing, impeding, blocking, cancelling, or terminating any awards, contracts or obligations (“Current Obligations”); (2) “changing the terms of any Current Obligation, on the basis of the Termination Provision; (3) requir[ing] any grantee or contractor to make any ‘certification’ or other representation pursuant to the Certification Provision;” or (4) “bring[ing] 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.” 

Complaint for Declaratory and Injunctive Relief. Plaintiffs, the National Association of Diversity Officers in Higher Education, the American Association of University Professors, Restaurant Opportunities Centers United, and the Mayor and City Council of Baltimore Maryland seek a preliminary and permanent injunction enjoining defendants from enforcing Executive Orders 14151(“Ending Radical Government DEI Programs and Preferences”) (J20) and 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”) (J21) and enter a declaratory judgment that the Orders are unlawful and unconstitutional. Plaintiffs allege that defendants Donald J. Trump; the Departments of Health and Human Services, Education, Labor, Interior, Commerce, Agriculture, Energy, Transportation, and Justice; the National Science Foundation; and the Office of Management and Budget have violated the Free Speech Clause of the First Amendment, as well as Separation of Powers in their enforcement of J20 and J21. Plaintiffs contend that both Orders are unreasonably vague as they fail to define the key terms Diversity, Equity, and Inclusion (“DEI”), Diversity, Equity, Inclusion, and Accessibility (“DEIA”), “environmental justice,” “equity-related,” and “illegal discrimination or preferences” and ultimately seek to suppress free speech on DEI or DEIA principles. Plaintiffs further allege that the J21 Order is designed to chill free speech on matters of substantial political importance, and the lack of clear definitions leave plaintiffs as potential targets with no guidance as to what speech or which actions the Order encompasses. Specifically, plaintiffs write in relation to the ambiguity of the Order’s language targeted toward institutions of higher education with endowments over $1 billion: “none of the approximately 120 institutions of higher education that could be subject to civil compliance investigation know what, if any, action they can take to avoid being named on the Attorney General’s target list.” Plaintiffs contend the only sure way to avoid unwarranted harm is to censor their own speech. Finally, plaintiffs argue that the President cannot seize Congress’s power of the purse and deny due process to millions of Americans by attempting to dictate government spending by placing conditions on the spending power otherwise vested in the legislative branch. 

U.S. Office of the Attorney General issued a Memorandum to all employees titled, “Ending Illegal DEI and DEIA Discrimination and Preferences.” The Memorandum announced that in accordance with Executive Order 14173: “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” the Department of Justice’s Civil Rights Division (the Department) will investigate, eliminate, and penalize what it couches as “illegal” Diversity, Equity, and Inclusion (DEI) and Diversity, Equity, Inclusion, and Accessibility (DEIA) “preferences, mandates, policies, programs, and activities in the private sector and in educational institutions that receive federal funds.” The Memorandum notes that by March 1, 2025, the Department as well as the Office of Legal Policy will jointly submit a report to the Associate Attorney General 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 policies relating to DEI and DEIA.” The Memorandum concludes with guidance to institutions receiving federal funds, stating that the Department will work with the U.S. Department of Education to issue further direction.