Fourth Circuit Reinstates Anti-DEI Executive Orders Pending Further Litigation

The District Court Preliminary Injunction

On February 21, 2025, the U.S. District Court for the District of Maryland entered a preliminary injunction blocking the enforcement of important aspects of two Executive Orders: “Ending Radical and Wasteful Government DEI Programs and Preferencing” (EO 14151) and “Ending Illegal Discrimination and Restoring Merit‑Based Opportunity” (EO 14173).  See Nat’l Ass’n of Diversity Officers in Higher Educ., et al., v. Donald J. Trump, et al., No. 1:25-cv-00333-ABA, Dkt. 44–45 (D. Md. 2025).  Among other things, the District Court held that plaintiffs had shown a likelihood of success on their claims that various aspects of these executive orders violated their First Amendment free-speech rights, as well as the Due Process Clause of the Fifth Amendment because they were impermissibly vague and offered no guidance on what could be deemed illegal DEI.

As issued initially, the preliminary injunction prohibited the named government defendants in the case (other than President Trump) from:

• pausing or terminating “‘equity-related’ grants or contracts” pursuant to EO 14151§ 2(b)(i);
• requiring federal contractors and grant recipients from making several representations pursuant to EO 14173 § 3(b)(iv), including certifying that they do not “operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws”; and
• bringing any enforcement action (including any False Claims Act enforcement action) targeting “DEI programs or principles” pursuant to EO 14173 § 4(b)(iii).

The District Court later clarified that the preliminary injunction extended not only to the named government defendants in the case, but also to the entire Executive Branch (other than President Trump).  Similarly, the preliminary injunction was nationwide, not limited to the plaintiffs in the case.

The government appealed the preliminary injunction to the U.S. Court of Appeals for the Fourth Circuit.  It also asked the District Court to stay the preliminary injunction pending resolution of its appeal or limit the preliminary injunction only to the parties in the case, which the judge denied.  As a result, the government asked the Fourth Circuit for the same relief.

Fourth Circuit Stays the Preliminary Injunction

On March 14, 2025, a three-judge panel of the Fourth Circuit granted the government’s motion for a stay of the preliminary injunction and agreed to set an expedited briefing schedule for the pending appeal. See Nat’l Ass’n of Diversity Officers in Higher Educ., et al., v. Donald J. Trump, et al., No. 25-1189, Dkt. 29 (4th Cir. 2025).  The panel concluded that the government had satisfied the factors for a stay, including showing that it is likely to prevail on its appeal of the preliminary injunction. 

The order prompted separate writings from each of the members of the panel. 

• Judge Harris explained that this is a “difficult case,” but agreed that the Executive Orders, at least on their face, are limited in scope because they “apply only to conduct that violates existing federal anti-discrimination law.” Judge Harris explained that her “vote comes with a caveat”: “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.” But because this case did not challenge any enforcement actions, Judge Harris agreed with the decision to stay the preliminary injunction pending appeal.
• Chief Judge Diaz agreed with Judge Harris’s explanation for staying the District Court’s preliminary injunction, reserving judgment on the manner of enforcement of the Executive Orders.He wrote separately to criticize the Administration’s attacks on DEI initiatives:“[D]espite the vitriol now being heaped on DEI, people of good faith who work to promote diversity, equity, and inclusion deserve praise, not opprobrium.” (Judge Harris also wrote that she “share[d]” Chief Judge Diaz’s sentiments.)
• Judge Rushing explained that the government is likely to succeed in showing that the Executive Orders do not violate the First or Fifth Amendments. She also explained that the “scope of the preliminary injunction alone should raise red flags: the district court purported to enjoin nondefendants from taking action against nonplaintiffs.” Judge Rushing highlighted that this case did not challenge the implementation of the Executive Orders and that there were serious questions about the ripeness of the plaintiffs’ lawsuit and their standing to challenge the Executive Orders at this time. Lastly, in a clear reference to the writings of her fellow members of the panel, Judge Rushing expressed that a judge’s personal views on DEI “should play absolutely no part in deciding this case.”

What Happens Next?

The plaintiffs in the case may go the U.S. Supreme Court and ask for the stay to be lifted and the preliminary injunction to be reinstated.  In the meantime, the appeal in the Fourth Circuit will now proceed on an expedited basis.  To be clear, the panel’s order and separate writings already have previewed that the government is likely to prevail on the appeal and that the preliminary injunction will be vacated.  All three members expressed skepticism towards the District Court’s conclusion that the challenged provisions of the anti-DEI Executive Orders are unconstitutional on their face.  And Judge Rushing added that the challenge in this case might be unripe and that the plaintiffs lack standing to bring the suit.

Importantly, Chief Judge Diaz and Judge Harris indicated that they may see differently a challenge to an enforcement action implementing the Executive Orders.  Indeed, they essentially previewed their agreement with the District Court’s constitutional analysis in a case challenging agency action that exceeds the Executive Orders’ limited scope—that is, to an enforcement action targeting conduct that does not currently “violate[] existing federal anti-discrimination law.”

While the appeal in the Fourth Circuit proceeds, there is another lawsuit pending in the U.S. District Court for the District of Columbia, which challenges the constitutionality of the Executive Orders but also challenges the legality of agency actions implementing the orders.  See Nat’l Urban League, et al. v. Donald J. Trump, et al., No. 1:25-cv-00471-TJK, Dkt. 1 (D.D.C. 2025).  Although that case is in D.C., it seemingly presents the enforcement or as-applied issues previewed in the Fourth Circuit’s stay of the preliminary injunction. The plaintiffs in that case have moved for a preliminary injunction, which will be fully briefed on March 17, 2025.  We expect to see a ruling from the district judge fairly soon on the preliminary injunction, which is likely to prompt an appeal and further litigation before the U.S. Court of Appeals for the D.C. Circuit.

As of right now, the anti-DEI Executive Orders are fully in effect pending further litigation.  Companies and institutions, especially those with government contracts or grants, are advised to continue to evaluate their DEI programs and disclosures to ensure that they are in compliance with federal anti-discrimination law.  A team of our Employment Litigation and Supreme Court & Appellate practice groups is available to answer questions, explain the significance of these developments, and provide privileged advice on how to comply with federal and state law in this rapidly changing environment.