On March 14, 2025, the U.S. Court of Appeals for the Fourth Circuit lifted the nationwide injunction prohibiting the Trump Administration from enforcing DEI Executive Orders 14151 and 14173 allowing the Administration to press forward with efforts to stamp out all “illegal” DEI.
Maryland District Court Decision
On February 3, the National Association of Diversity Officers in Higher Education, American Association of University Professors, Restaurant Opportunities Centers United, and the City of Baltimore (Plaintiffs) filed suit in the U.S. District Court in Baltimore alleging that Executive Orders 14151 and 14173 exceed the President’s authority and violate the First and Fifth Amendments of the U.S. Constitution. On February 21, 2025, the District Court found that the complaint demonstrated that Plaintiffs have standing to bring this action and are likely to prove that the Executive Orders are unconstitutional, at least in part, because they are vague and chill the Plaintiffs’ free speech. Accordingly, the District Court issued a nationwide preliminary injunction enjoining the Administration from enforcing the anti-DEI Executive Orders.
Fast Forward Six Weeks
The Administration asked the Fourth Circuit Court of Appeals to lift the District Court’s stay allowing it to move forward with enforcing the DEI Executive Orders pending a decision on its appeal. The Circuit agreed to the stay allowing the Administration to move forward with investigating DEI initiatives and requiring federal contractors to certify that they do not engage in “illegal DEI.”
While all three judges agreed to lift the stay, each wrote separate opinions making clear that the Court’s unanimous ruling does not mean that the Court will rubber stamp penalties levied because of the Administration’s investigations into “illegal” DEI.
The Chief Judge noted that “neither Order ever defines DEI or its composite terms” and goes on to acknowledge the benefits of diversity stating:
[D]espite the vitriol now being heaped on DEI, people of good faith who work to promote diversity, equity, and inclusion deserve praise…For when this country embraces true diversity, it acknowledges and respects the social identity of its people. And when its policies are truly inclusive, it creates an environment and culture where everyone is respected and valued. What could be more American than that?
Judge Harris further stated in her concurrence that:
[her] vote to grant the stay comes with a caveat. What the Orders say on their face and how they are enforced are two different things, 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 Rushing closed his concurrence stating:
Finally, my 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, “people of good faith who work to promote diversity, equity, and inclusion deserve praise not opprobrium.”
What Comes Next?
Federal contractors and entities the receive federal financial assistance can expect federal agencies to move forward immediately with investigations into “illegal DEI.” Recall, Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, issued on January 22, directed the Attorney General to work with every federal agency to identify up to nine “potential civil compliance investigations” of:
- Publicly traded corporations
- Large non-profit corporations or associations
- Foundations with assets of at least $500 million
- State and local bar associations
- State and local medical associations
- Institutions of higher education with endowments exceeding $1 billion
Attorney General Bondi gave the Civil Rights Division and the Office of Legal Policy until March 1, 2025, to prepare a report identifying “key sectors” subject to the DOJ’s jurisdiction for an investigation of their DEI and DEIA programs. The Department of Education, on March 14, issued a list of Colleges and Universities selected for investigation.
In preparation for an investigation by DOJ, DOE, or any other federal agency, any entity receiving federal funds through a government contract or federal grant are advised to conduct a comprehensive assessment of their DEI initiatives to ensure that all applicants and employees may participate regardless of their race, ethnicity, gender, sexual orientation, gender identity, age, disability status or religion. The assessment should include a review of relevant policies and communications, recruiting strategies, hiring and promotion decisions, and professional development opportunities.
These audits should be conducted under legal privilege to protect the scope of the audit, findings and actions taken from disclosure to an investigating agency or private litigant.
If you have any questions, please contact PintoBrown PLLC.
