Labor & Employment Law Daily Wrap Up, DISCRIMINATION—5th Cir.: Preliminary injunction against Mississippi law targeting DEI initiatives vacated, remanded, (Oct 23, 2026)

By Ronald Miller, J.D.

The fact that the district court twice referred to the Moody framework as “supposedly” required calls into question whether the judge even tried in good faith to follow the law.

The Fifth Circuit vacated a preliminary injunction that had barred enforcement of legislation enacted by the State of Mississippi designed to keep Mississippi public education funds from being spent on diversity, equity, and inclusion (DEI) initiatives. The plaintiffs filed a pre-enforcement facial challenge, claiming the law violates the First Amendment, unconstitutionally contravenes the void-for-vagueness doctrine, and otherwise violates various Fourteenth Amendment doctrines. On remand, the appeals court found, a new district judge should apply the above law in each applicable situation within the foreseeable scope of H.B. 1193 and proceed to determine the constitutionality of the law in each arena. Once that judge has done so, he or she will determine whether “the ratio of unlawful-to-lawful applications” of H.B. 1193 is so “lopsided” as to substantially outweigh the lawful reach of the law. Judge Haynes filed a separate concurring opinion (Jackson Federation of Teachers v. Fitch , No. 25-60496 (5th Cir. Oct. 22, 2026)).

DEI initiatives. In April 2025, Mississippi enacted House Bill 1193 (H.B. 1193), a law designed to keep Mississippi public education funds from being spent on diversity, equity, and inclusion (DEI) initiatives. H.B. 1193 does four main things. First, it prevents educational institutions from mandating DEI programs and diversity trainings in a variety of contexts. Second, it stops public educational institutions from punishing students for their views on DEI. Third, it prohibits regulated institutions from endorsing or promoting DEI through course materials. Finally, it prevents institutions and their educators from otherwise engaging in DEI methods or actions, preventing bad actors from circumventing prohibitions and frustrating its purposes, according to the court.

The plaintiffs—teacher groups, a union, student groups, professors, and parents—filed a pre-enforcement facial challenge, claiming the law violates the First Amendment, unconstitutionally contravenes the void-for-vagueness doctrine, and otherwise violates various Fourteenth Amendment doctrines.

Named parties. On July 20, 2025, the district court entered a temporary restraining order. The TRO named as plaintiffs eleven individuals and organizations who had never been party to the case. It also named as defendants two officials who were not actually sued. Further, the TRO claimed, without evidence, that three post-secondary institutions had already cancelled DEI initiatives or programming because of the act, and further declared that staff at another school had been told not to discuss certain topics, including “historical interpretations involving systemic racism”; misquoted H.B. 1193; and referenced purported declarations of four individuals who do not appear in the record at all and may not even exist.

Two days later, defendants filed a motion to clarify or correct the order, pointing out several factual inaccuracies. Later that same day, the district court removed the original TRO from the docket and replaced it with a seemingly corrected version backdated to July 20.

The district court denied the defendants’ request to restore the original TRO to the docket as a superseded order. After accusations that AI had been used in the original TRO made national headlines, the district judge admitted to having used AI to prepare the TRO and blamed the errors on his law clerk’s employment of AI in drafting it.

On August 18, 2025, the district court granted the plaintiffs’ motion for a preliminary injunction, claiming that H.B. 1193 facially violated the First Amendment and was void for vagueness.

The corrected TRO did not explain how or why the factual inaccuracies were not necessary to the reasoning of the original TRO. The merits analysis failed to cite a binding authority from after the year 2000. It claimed that H.B. 1193 constitutes viewpoint discrimination, without any analysis whatsoever of a state government’s authority to regulate its own speech. And the document did not correct all the errors.

Preliminary injunction. The order granting the preliminary injunction lacks thoroughness, observed the Fifth Circuit. The district court’s holding as regards the facial First Amendment challenge cited only two cases (only one from the last two decades). The court referenced Moody v. NetChoice, 603 U.S. 707 (2024), only to circumvent it.

The district court brushed off the Moody framework as a “supposed” formality that was satisfied merely because plaintiffs identified programs and books that, in their view, are “arguably on the chopping block.” That did not come close to satisfying the inquiry demanded by Moody. It was egregious for the district court just to assume that plaintiffs’ assertions that certain materials are “on the chopping block” must mean a constitutional violation has occurred, without any independent legal analysis whatsoever.

Facial challenge. The order defended its analysis by claiming that the plaintiffs “do not seek to challenge HB 1193’s prohibitions on unlawful discrimination,” ignoring the fact that several of the challenged portions arguably do nothing more than prohibit unlawful discrimination.

Moody demands that a plaintiff raising a facial First Amendment challenge show that the law’s “unconstitutional applications substantially outweigh its constitutional ones.” A facial challenge may succeed only by following Moody’s two-step process: first, establish the scope of the law (i.e. which activities and which parties the law regulates); second, determine which would and would not be constitutional and “compare the two sets” to see whether there is a “sphere of [constitutional] applications” that can defeat the facial claim.

The fact that the district court twice referred to the Moody framework as “supposedly” required calls into question whether the judge even tried in good faith to follow the law.

Legal basis for injunction. More troubling for the appeals court was the district court’s legal basis for, and scope of, the preliminary injunction. Citing the fact that the defendants admitted that the law of university academic publication freedom “remains unclear,” the district judge wrote that “Defendants’ recognition, alone, at this time, preaches that an injunction should issue when a key consideration is yet un determined.” However, the appeals court stated that the court should pause when faced with an unsettled area with such dire possible consequences.

To impose preliminary injunctive relief, a court must find that the party requesting it is likely to succeed on the merits. The authorizing judge may justify injunctive relief only by ruling that there is likelihood of success.

Scope of preliminary injunction. Finally, the appeals court found that the scope of the preliminary injunction was impermissibly broad. The district judge cited Trump v. CASA, Inc., 145 S. Ct. 2540 (2025), for the proposition that injunctions of this type should be all-or-nothing renditions. In the quoted portion, the Supreme Court cautioned against overbroad relief and urged judges to tailor relief to what is absolutely necessary and nothing more. The district court’s misunderstanding of CASA tainted its decision to issue such a broad injunction, according to the appeals court.

Reassignment on remand. Though reassignment on remand is an “extraordinary” and “rarely invoked” power, the appeals court determined that this case easily calls for reassignment. The fact that the district court merely excised the AI-hallucinated “facts” from its original TRO—without explaining why the order should still stand even without the false evidence to support it—may already evince a “substantial difficulty” in setting aside views based on “findings determined to be erroneous.”

Further, the public esteem for the judiciary would be diminished by sending this case back to the same judge for judgment on facts and law entirely different from those upon which he supported his initial TRO. Moreover, an objective observer might question the impartiality of the proceedings and therefore might further question later proceedings run by the same judge.

Correct law to apply. Finally, the appeals court turned to consider the proper scope of H.B. 1193 and the correct law to apply on remand.

Moody recognized that, in constitutional facial challenges to laws implicating the First Amendment, it is often “necessary to say more” about the factual sweep of the underlying law and how the law of our constitution relates to it, “to ensure that the facial analysis proceeds on the right path in the courts below.” The Fifth Circuit followed that scheme on remand after Moody.

The case is No. 25-60496.

Judge: Smith, J.

Attorneys: Mohammed Amir Badat (Badat Legal) for Jackson Federation of Teachers, Barbara Phillips, James Thomas, Dawn Zimmerer, L.E. Jibol, United Campus Workers Southeast Local 3821, Madisyn Donley, and Alexis Cobbs. Justin Lee Matheny, Mississippi Attorney General’s Office, for Lynn Fitch, Gee Ogletree, Steven Cunningham, Amy Arrington, and Donald Clark, Jr.

Companies: Jackson Federation of Teachers; United Campus Workers Southeast Local 3821

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