Court of Appeals for the Fourth Circuit Stays Injunction on Anti-DEI Executive Orders
Court of Appeals for the Fourth Circuit Stays Injunction on Anti-DEI Executive Orders
Rob Thomas, Of Counsel
Upon his return to office, President Trump issued two notable Executive Orders (“EOs”)—EO 14151 and EO 14173[1]—specifically targeted at diversity, equity, and inclusion (DEI) programs within the federal government and beyond. On February 21, 2025, Judge Adam Abelson of the U.S. District Court for the District of Maryland issued a nationwide injunction against certain portions of the EOs, finding that the plaintiffs had shown a likelihood of success on the merits that the EOs violated the First and Fifth Amendments to the U.S. Constitution.[2] Now, the Court of Appeals for the Fourth Circuit has unanimously reversed the lower court’s denial of the President’s requested stay of the injunction pending the merits of an appeal, with certain panel judges taking the opportunity to opine on DEI programs at large.
EO 14151, EO 14173, and the District Court’s Injunction
As part of EO 14151, President Trump ordered the termination of all discriminatory and illegal DEI mandates and programs, including, as relevant here, all “equity-related” grants or contracts (the “Termination Provision”). As part of EO 14173, President Trump directed federal agencies to 1) include in every contract or grant award a term requiring the contracting party or grant recipient to agree that its compliance with applicable federal anti-discrimination laws is material to the government’s payment decisions for purposes of the False Claims Act (the “Compliance Provision”), and; 2) formulate a plan (with the Attorney General’s assistance) to deter illegal or discriminatory DEI programs or “principles” within the private sector, including for each agency to identify up to nine civil compliance investigations of large corporations, foundations, state and local bar and medical associations, and universities with endowments of over 1 billion dollars (the “Enforcement Threat Provision”).
In granting his preliminary injunction, Judge Abelson found that the Termination Provision is void for vagueness under the Fifth Amendment to the U.S. Constitution because it invited arbitrary and discriminatory enforcement, while also providing insufficient notice to current grantees about whether their grants run afoul of the Termination Provision. Judge Abelson also found that the Certification Provision imposes content-based restrictions on free speech in violation of the First Amendment by leveraging federal funding to regulate speech on DEI issues upon threat of False Claims Act liability. Last, Judge Abelson found that the Enforcement Threat Provision is an unlawful viewpoint-based restriction on free speech under the First Amendment because it specifically targets speech and views supportive of equity, diversity, and inclusion initiatives (while not similarly targeting speech and views opposed to equity, diversity, and inclusion initiatives).
In crafting his remedy, Judge Abelson enjoined the implementation and enforcement of the Provisions discussed above nationwide, applied the injunction to both the named defendants in the action (other than the President) as well as other federal executive branch agencies and departments, and enjoined the enforcement of the Provision as against all of the named plaintiffs and those similarly situated to the named plaintiffs.
The Court of Appeals’ Stay of the Injunction
Shortly after Judge Abelson issued his injunction, the President and the other defendants appealed and requested Judge Abelson to stay the injunction pending the appeal. Judge Abelson denied the request, and the defendants appealed that denial.
The Court of Appeals for the Fourth Circuit unanimously reversed Judge Abelson’s denial of a stay pending the appeal on the merits based on the factors identified in the U.S. Supreme Court’s decision in Nken v. Holder.[3] But, in doing so, each panel judge took the opportunity to weigh in on both the EOs and the merits of the challenges to the same. Chief Judge Diaz stated that he believed the government satisfied its burden to stay the injunction for the time being, but nonetheless criticized the EOs for never defining DEI or its component terms. Judge Diaz also lamented the “vitriol now being heaped on DEI,” while noting that those who work to promote diversity, equity, and inclusion in American society “deserve praise, not opprobrium.” Circuit Judge Harris joined the Chief Judge’s praise of good faith diversity initiatives, but also noted that the EOs do not purport to declare all efforts to advance DEI illegal—but rather only those efforts that otherwise violate anti-discrimination laws. Judge Harris therefore opined that the EOs likely do not violate the Constitution on their face, but recognized that agency actions going beyond the EOs’ scope could violate the First or Fifth Amendments.
Last, Circuit Judge Rushing was more critical of the injunction itself, noting that its scope was likely overbroad and the injunction presented ripeness concerns, considering that much of the harm advocated by the plaintiffs in support of the injunction was premised on what federal agencies would or could do under the EOs. Judge Rushing was also critical of what she perceived to be impartial commentary by the other Circuit Judges, noting that opinions regarding whether DEI programs deserve “praise” or “opprobrium” should have no part in deciding the constitutionality of the EOs.
Employer Considerations
It is clear from the Circuit Judges’ concurrences that DEI initiatives in both the public and private sector—and the current administration’s attacks on the same—remain a divisive and contentious issue for all involved. The concurrences provide a rare and interesting glimpse into the views of the Judges who will be deciding the merits of whether the EOs are valid under the Constitution or not (at least until the Supreme Court hears the issue, which seems highly likely). In the meantime, employers should be mindful of the EOs’ scope, which only target DEI initiatives which are otherwise illegal under federal anti-discrimination laws. Campbell Litigation shall continue to monitor this case and other developments in the law surrounding public and private DEI initiatives.
[1] Executive Order 14151, “Ending Radical and Wasteful Government DEI Programs and Preferencing,” 90 FR 8339 (Jan. 20, 2025); Executive Order 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” 90 FR 8633 (Jan. 21, 2025); see also https://www.rockymountainemployersblog.com/blog/2025/1/30/the-trump-administration-brings-attack-on-illegal-dei-policies-to-the-private-sector (discussing EO 14173’s revocation of President Lyndon Johnson’s Executive Order 11246).
[2]See Nat’l Ass’n of Diversity Officers in Higher Education v. Trump, --- F. Supp. 3d ----, 2025 WL 573764 (Feb. 21, 2025). Judge Abelson also denied a stay of the injunction pending an appeal on March 3, 2025.
[3]See https://storage.courtlistener.com/recap/gov.uscourts.ca4.177868/gov.uscourts.ca4.177868.29.0.pdf for the Fourth Circuit’s decision and concurring opinions; see also Nken v. Holder, 556 U.S. 418, 426 (2009) (factors to consider include 1) whether the stay applicant has made a strong showing of a likelihood of success on the merits; 2) whether the applicant would be irreparably harmed absent a stay; 3) whether the stay would substantially injure the other interested parties; and 4) where the public interest lies).