ESG Daily, DIVERSITY EQUITY AND INCLUSION—D. Md.: Court grants temporary halt to enforcement of DEI Executive Orders, (Feb 25, 2025)

By Stephanie K. Bennett, J.D.

A second complaint has also been filed in federal court, alleging that the orders violate guaranteed rights found in the First and Fifth Amendments.

President Donald Trump’s Executive Orders targeting Diversity, Equity, and Inclusion (DEI) programs have encountered their first major hurdle after the District Court of Maryland has granted a preliminary injunction which temporarily prohibits the Administration from enforcing select provisions contained within the Orders. The National Association of Diversity Officers in Higher Education, American Association of University Professors, Restaurant Opportunities Centers United, and the Mayor and City Council of Baltimore challenged the legality of the DEI Executive Orders, arguing that the federal funding, which they need to continue to serve communities by providing social and health services, has been compromised. The court found that the plaintiffs were likely to succeed on the merits of their claims that the Orders violated their First and Fifth Amendment rights while also ruling that the preliminary injunction applied to all similarly situated contractors, grant recipients, and private sector entities nationwide ( National Association of Diversity Officers in Higher Education et al. v. Trump et al., No. 1:25-cv-00333 (D. Md. Feb. 21, 2025)).

The complaint filed in Maryland court challenged three specific provisions contained in Executive Orders 14151 and 14173:

1. requiring federal agencies to terminate “equity-related grants or contracts;”

2. requiring federal contractors and grant recipients to include in every contract or grant award a certification enforceable through the False Claims Act that the contractor or grantee does not operate illegal DEI programs; and

3. directing the attorney general to take appropriate measures to encourage the private sector to end illegal DEI and to identify civil compliance investigations to accomplish said deterrence.

In granting the preliminary injunction, the court found that the provision ordering the termination of grants was unconstitutionally vague as it failed to define key terms such as “equity,” “equity-related,” “DEI,” and “illegal DEI.” This vagueness could open the door for arbitrary enforcement, said the court, since grantors and contractors are unable to determine whether their agreements will be terminated or how to comply with the terms of the Orders.

The challenge to the provision requiring certification is also likely to be held unconstitutional on its merits, found the court. Writing that the provision likely violates the First Amendment’s guaranteed right to freedom of speech as it requires contractors and grant recipients to certify that they do not operate any programs that the Administration may determine constitutes “illegal DEI,” even if it is outside of the scope of federal funding, is a “facially viewpoint-discriminatory order.” In addition, the vagueness of the terms may lead to far-reaching self-censorship as contractors and grant recipients are left unsure how to comply.

Finally, the Enforcement Threat Provision, which attempts to prohibit the private sector with no funding ties to the federal government, is likely to be upheld as a “pure” violation of protected speech, said the ruling. This provision “expressly targets, and threatens, the expression of views supportive of equity, diversity and inclusion.” However, the Supreme Court has previously ruled that the government cannot rely on the “threat of invoking legal sanctions and other means of coercion” to suppress speech to which it does not agree.

Irreparable harm. The court found that a preliminary injunction was warranted as the plaintiffs had demonstrated four ways in which they would suffer irreparable harm if the provisions were allowed to take effect: threat of loss of funds, uncertainty regarding future operations, loss of reputation, and chilled speech. The likelihood of success on the merits of these claims led the court to grant the preliminary injunction.

Additional challenge. In another legal challenge to the DEI Executive Orders, the Legal Defense Fund and Lambda Legal on behalf of the nonprofits National Urban League, National Fair Housing Alliance, and the AIDS Foundation of Chicago are alleging that the orders infringe upon the guaranteed right to free speech and due process by forcing the organizations to adopt the Administration’s view regarding DEI. In addition, the complaint also claims that Trump’s Executive Order barring the federal government from recognizing the existence of transgender people constitutes a discriminatory practice.

“The terms of the Executive Orders are extraordinarily vague and could prohibit Plaintiffs from engaging in any targeted effort to help a specific group of people facing unfair disadvantages,” argued the complaint filed in the D.C. District Court. “Without any discernible standards or criteria of what is and what is not ‘dangerous, demeaning,’ ‘immoral,’ and ‘illegal’ DEIA, as understood by this Administration, the future of Plaintiffs’ fiscal viability and programming are subject to the unfettered discretion of an Administration that has made clear its predisposition against any speech or action that advances equal opportunity for historically marginalized groups, including people of color, women, LGBTQ people, and/or people with disabilities.”

Arguing that Trump departed from standard procedure in issuing and implementing the EOs by exceeding his authority and circumventing the legislative branch, in addition to the EOs being too vague to enforce, the plaintiffs asked the court to hold the Executive Orders and any implementing agency actions as unlawful, unconstitutional, and invalid.

The case is No. 1:25-cv-00333.

Judge: Abelson, A.

Attorneys: Aleshadye Getachew (Democracy Forward Foundation) for National Association of Diversity Officers in Higher Education. Pardis Gheibi, US Attorney's Office, for Donald J. Trump.

Companies: AIDS Foundation of Chicago; American Association of University Professors; Lambda Lega; Legal Defense Fund; National Association of Diversity Officers in Higher Education; National Fair Housing Alliance; National Urban League; Restaurant Opportunities Centers United

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