Labor & Employment Law Daily Wrap Up, REMEDIES, DAMAGES—4th Cir.: Injunction banning enforcement of provisions in DEI-related EOs stayed pending appeal, (Mar 17, 2025)

By Kathleen Kapusta, J.D.

“As with most monsters in the closet, what lurks is but a mere shadow, for which the remedy is simply light.”

In a short unpublished order, the Fourth Circuit granted the Trump administration’s motion for a stay of the nationwide preliminary injunction entered by a federal court in Maryland that barred the government from enforcing several provisions in two Executive Orders instructing executive agencies to end diversity, equity, and inclusion (DEI) programs within federal grant and contract processes. Chief Judge Diaz directed the court to enter the order and the court also ordered the clerk to set an expedited briefing schedule (National Association of Diversity Officers in Higher Education v. Trump, No. 25-1189 (4th Cir. Mar. 14, 2025, unpublished)).

Three national organizations, including the National Association of Diversity Officers in Higher Education (NADOHE), along with the Mayor and City Council of Baltimore, Maryland, challenged several DEI-related provisions in two Executive Orders issued by President Trump on the first two days of his administration. The first EO, Ending Radical and Wasteful Government DEI Programs and Preferencing, was issued January 20 and focuses on activities and programs within the federal government, including “Equity Action Plans” that were required of executive agencies during President Biden’s administration, while the second, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, issued January 21, focuses on “ending illegal preferences and discrimination,” both within the federal government and in the private sector.

Challenged provisions. The plaintiffs challenged three provisions in the Executive Orders—a provision in the January 20 EO that requires the OMB director to “coordinate the termination of all discriminatory programs, including illegal DEI and ‘diversity, equity, inclusion, and accessibility’ (DEIA) mandates, policies, programs, preferences, and activities in the Federal Government, under whatever name they appear;” a provision in the January 21 Order that directs executive agencies to “include in every contract or grant award” a certification, enforceable through the False Claims Act, that the contractor and grantee “not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws;” and a provision in that Order directing 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].

Lower court decision. In granting the plaintiffs’ motion for a preliminary injunction, the district court found the three provisions were likely unconstitutional. Two of the provisions, said the court, are unconstitutionally vague as to all contractors and grantees subject to them and two are content- and viewpoint-based restrictions that chill speech “as to anyone the government might conceivably choose to accuse of engaging in speech about ‘equity’ or ‘diversity’ or ‘DEI’” or other topics cited by the EOs. Accordingly, the court granted a nationwide injunction. After the government appealed the injunction, the district court entered an order clarifying that its preliminary injunction “applies to and binds Defendants. .. as well as other federal executive branch agencies, departments, and commissions, and their heads, officers, agents, and subdivisions.”

Diaz concurrence. In addition to directing the court to enter the stay, Judge Diaz, in a separate concurring opinion, noted that he was satisfied, for now, that the government had met its burden justifying the stay. He wrote separately, however, “to address what seems to be (at least to some) a monster in America’s closet—Diversity, Equity, and Inclusion initiatives.” While the EOs at issue, Judge Diaz observed, claim that DEI and DEIA policies include “dangerous, demeaning, and immoral race- and sex-based preferences” neither defines DEI.

“And despite the vitriol now being heaped on DEI, people of good faith who work to promote diversity, equity, and inclusion deserve praise, not opprobrium,” he wrote, noting that when this country’s policies “are truly inclusive, it creates an environment and culture where everyone is respected and valued. What could be more American than that?”

Contending that there should be room for principled debate about DEI programs, Judge Diaz pointed out that for “almost 250 years, this nation’s North Star has been the self-evident truth, ‘that all men are created equal,” and “we owe it to ourselves to continue forging conversations that may help us achieve that ‘more perfect Union.’”

Harris concurrence. Judge Diaz also joined in Judge Harris’ separate concurring opinion in which she explained that while this was a difficult case that would benefit from more sustained attention, the government established a sufficient likelihood of success to warrant a stay pending appeal. The Executive Orders, she observed, are of limited scope and do not purport to establish the illegality of all efforts to advance DEI.

Noting that her vote to grant the stay came with a caveat, Judge Harris pointed out that there is a difference in what the EOs say on their face and how they are enforced. “Agency enforcement actions that go beyond the Orders’ narrow scope may well raise serious First Amendment and Due Process concerns, for the reasons cogently explained by the district court.”

Judge Harris also clarified that her vote “should not be understood as agreement with the Orders’ attack on efforts to promote diversity, equity, and inclusion. In my view, like Chief Judge Diaz’s, ‘people of good faith who work to promote diversity, equity, and inclusion deserve praise, not opprobrium.’”

Rushing concurrence. Also concurring in the order granting the stay pending appeal, Judge Rushing argued that the “scope of the preliminary injunction alone should raise red flags: the district court purported to enjoin nondefendants from taking action against nonplaintiffs.” She also asserted that “Any individual judge’s view on whether certain Executive action is good policy is not only irrelevant to fulfilling our duty to adjudicate cases and controversies according to the law, it is an impermissible consideration. A judge’s opinion that DEI programs ‘deserve praise, not opprobrium’ should play absolutely no part in deciding this case.”

The case is No. 25-1189.

Judge: Per curiam.

Attorneys: Alizeh Ahmad (Asian Americans Advancing Justice) for National Association of Diversity Officers in Higher Education. Molissa Heather Farber, Office of the U.S. Attorney, for Donald J. Trump.

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