President’s Bid to Unblock Parts of DEI Executive Orders Denied

On Monday, March 3, a U.S. federal judge refused to rescind his preliminary injunction that on Feb. 21 blocked core parts of President Donald Trump’s executive orders (EOs) targeting “illegal” diversity, equity and inclusion (DEI) programs and/or initiatives.

Judge Adam B. Abelson, presiding over the case National Association of Diversity Officers in Higher Education, et al. v. Trump (NADOHE v. Trump) in the U.S. District Court for the District of Maryland, had ruled Feb. 21 that the Trump administration overstepped Constitutional boundaries and used overly vague terms (in particular, the word “illegal” as it applies to DEI, discrimination, preferences and more) within two EOs:

EO 14151, “Ending Radical and Wasteful Government DEI Programs,” which called for “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.”
EO 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” which instructed federal departments not to issue contracts to private organizations that enforce DEIA frameworks, prevented affirmative action from being implemented by government contractors, revoked certain parts of the Equal Employment Opportunity (EEO) order and other orders in terms of federal contracting jobs, and called on federal agencies to investigate nine publicly traded companies for related practices.

While these EOs primarily focus on DEI programs in the federal government and its contractors, there are direct and tangential ramifications for private employers within the cited EOs and ancillary memorandums.

The administration appealed that initial ruling Feb. 24 on the grounds that it improperly prevented federal agencies from enforcing antidiscrimination laws and derailed “intra-executive policy implementation by enjoining the President’s policy directives to federal agencies.”

The Details on the Latest Decision

In reviewing the Trump administration’s appeal, Judge Abelson determined March 3 that:

The Trump administration failed to show a stay was warranted.
The policy goals of the executive branch must still comply with the Constitution.
The enjoined parts of the EOs violate free speech and are unconstitutionally vague.

In his Feb. 21 and March 3 rulings, the judge cited as problematic EO provisions that directed:

Federal agencies to terminate “equity-related grants or contracts” (EO 14151);
Federal contractors and subcontractors to certify they do not operate “illegal” DEI programs for purposes of False Claims Act (FCA) liability (EO 14173); and,
The U.S. attorney general to enforce civil rights and antidiscrimination laws against DEI programs in the private sector (EO 14173).

“As the court explained in its memorandum opinion granting the preliminary injunction, the executive branch is obviously entitled to have policy goals and to pursue them,” Abelson said in a 10-page memorandum opinion and order document denying the stay. “But in pursuing those goals, it must comply with the Constitution, including, as relevant here, the Free Speech Clause of the First Amendment and the Due Process Clause of the Fifth Amendment.”

In further explaining his decision, the judge called out specific phrases from precedent cases (e.g., U.S. Agency for International Development v. Alliance for Open Society International, Inc., Village of Hoffman Estates v. Flipside, Hoffman Estates and Grayned v. City of Rockford) that he said intersect with NADOHE v. Trump.

“The specific executive order provisions at issue in this case run afoul of [First and Fifth Amendment] protections,” Abelson stated. “They punish, or threaten to punish, individuals and institutions based on the content of their speech, and in doing so, they specifically target viewpoints the government seems to disfavor. The provisions target not only purely private persons who have no nexus to federal funding, but also ‘seek to leverage funding to regulate speech’ of individuals and institutions that happen to contract with (or receive grants from) the federal government, and they terminate benefits or threaten punishment ‘because of [individuals’] speech on matters of public concern,’ which constitute independent First Amendment violations. The specific provisions at issue also likely violate the Due Process Clause of the Fifth Amendment. After all, the First and Fifth Amendment analyses in this case merge in several ways, because laws that ‘interfere with the right of free speech or of association’ must pass a ‘stringent vagueness test’ for such a law to give citizens sufficient notice of ‘what is prohibited, so that [they] may act accordingly’ and for such a law to provide sufficiently ‘explicit standards’ to avoid “arbitrary and discriminatory enforcement.”

The Trump administration is likely to push for this case to go before the U.S. Supreme Court.

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