Cases & Developments

Opinion Vacating the Preliminary Injunction and Remanding for Further Consideration. Plaintiffs, the National Association of Diversity Officers in Higher Education, the American Association of University Professors, and others, challenged the Trump Administration’s Executive Orders on DEI claiming, inter alia, the executive orders’ certification and termination provisions were overbroad, vague, and chilled protected speech in violation of the First and Fifth Amendment. In February 2025, a district court in Maryland issued a nationwide preliminary injunction, finding plaintiffs were likely to succeed in showing that (1) the certification and termination provisions violated the First and Fifth Amendment, (2) the plaintiffs and similar non-parties were likely to suffer irreparable harm as a result of the EOs; and (3) the balance of equities and the public interest favored issuing a preliminary injunction. On appeal, the Fourth Circuit disagreed and vacated the injunction, finding plaintiffs’ facial challenge to the executive orders’ termination and certification provisions was unlikely to succeed. With respect to the termination provision, the court concluded it was “nothing more than ‘an outward-facing’ policy directive from the President to his agents,” noting that nothing in provision’s “plain text” terminated any contracts or directly regulated any non-governmental conduct.  Finding the plaintiff’s reliance on enforcement evidence “blur[ed] the line” between a facial and as-applied challenge, the court clarified that if grants were terminated, “without regard to their legality, then plaintiffs can sue those actors for terminating those contracts.” Turning to the certification provision, the court found that the plain language of the provision “requires only that plaintiffs certify compliance with federal antidiscrimination laws, which the First Amendment doesn’t confer a right to violate.” While noting it was “bound by the text” in rejecting plaintiffs’ facial challenge to the provision, the court clarified once again, that if the president or his subordinates misinterpreted federal antidiscrimination law, plaintiffs were free to “challenge that interpretation in a specific enforcement action.”