On February 21, a federal district court judge issued a preliminary injunction against several elements of Trump’s executive orders regarding DEI or DEIA. The reach of this preliminary injunction goes beyond the plaintiffs in this suit, encompassing similarly situated federal contractors, grantees of federal funds, and private sector entities. The court highlighted the necessity of preserving the current state of affairs during the litigation and halting the enforcement of the contested provisions.

The action was brought by the National Association of Diversity Officers in Higher Education, the American Association of University Professors, Restaurant Opportunities Centers United, and the mayor and city council of Baltimore, Maryland, and challenged the following provisions in Executive Order 14151, Ending Radical and Wasteful Government DEI Programs and Preferencing and Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity:

Executive Order 14151 § 2(b)(i) (the “Termination Provision”) (Requires termination of all “equity-related” grants or contracts within 60 days):

Each agency, department, or commission head, in consultation with the Attorney General, the Director of OMB, and the Director of OPM, as appropriate, shall take the following actions within sixty days of this order:

(i) terminate, to the maximum extent allowed by law, . . . all . . . “equity-related” grants or contracts[.]

Executive Order 14173 § 3(b)(iv) (the “Certification Provision”) (Mandates that federal contracts and grants include terms requiring compliance with federal anti-discrimination laws and certification that no DEI programs violate these laws):

The head of each agency shall include in every contract or grant award:

(A) A term requiring the contractual counterparty or grant recipient to agree that its compliance in all respects with all applicable Federal anti-discrimination laws is material to the government’s payment decisions for purposes of section 3729(b)(4) of title 31, United States Code; and

(B) A term requiring such counterparty or recipient to certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.

Executive Order 14173 § 4(b)(iii) (the “Enforcement Threat Provision”) (Directs the attorney general to submit a report with recommendations for enforcing federal civil rights laws and deterring DEI programs that constitute illegal discrimination or preferences): 

To further inform and advise me so that my Administration may formulate appropriate and effective civil-rights policy, the Attorney General, within 120 days of this order, in consultation with the heads of relevant agencies and in coordination with the Director of OMB, shall submit a report to the Assistant to the President for Domestic Policy containing recommendations for enforcing Federal civil-rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI. The report shall contain a proposed strategic enforcement plan identifying:

. . . (iii) A plan of specific steps or measures to deter DEI programs or principles (whether specifically denominated “DEI”’ or otherwise) that constitute illegal discrimination or preferences. As a part of this plan, each agency shall identify up to nine potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, State and local bar and medical associations, and institutions of higher education . . .

In an accompanying 63-page memorandum, the judge found that the plaintiffs were likely to prevail in their challenges to these provisions as violating First Amendment rights to free speech and being unconstitutionally vague in violation of the Fifth Amendment.

Notable in the court’s detailed discussion of the facts and the law was the court’s recognition that the:

White House and Attorney General have made clear, through their ongoing implementation of various aspects of [Executive Order 14173], that viewpoints and speech considered to be in favor of or supportive of DEI or DEIA are viewpoints the government wishes to punish and, apparently, attempt to extinguish. And, as the Supreme Court has made clear time and time again, the government cannot rely on the “threat of invoking legal sanctions and other means of coercion” to suppress disfavored speech.

Opinion at p. 51.

The district court also recognized how the vague language used by the executive orders furthers the administration’s assault on constitutionally protected rights: 

“Vague laws invite arbitrary power.”  And Plaintiffs here have shown substantial evidence of the risks of such arbitrariness here. By threatening the “private sector” with enforcement actions, based on those vague, undefined standards, the Enforcement Threat Provision is facially unconstitutional under the due process clause of the Fifth Amendment.

Opinion at 54 (internal citations omitted).

The court’s ruling provides that the attorney general, federal agencies and agency heads, “and other persons who are in active concert or participation” with them, may not:

1. pause, freeze, impede, block, cancel, or terminate any awards, contracts or obligations (“Current Obligations”), or change the terms of any Current Obligation, on the basis of the Termination Provision;
2. require any grantee or contractor to make any “certification” or other representation pursuant to the Certification Provision; or
3. bring any False Claims Act enforcement action, or other enforcement action, pursuant to the Enforcement Threat Provision, including but not limited to any False Claims Act enforcement action premised on any certification made pursuant to the Certification Provision.

The court’s order and ruling does not impact the revocation of Executive Order 11246 or the removal from the Federal Acquisition Regulation of contract clauses relating to Executive Order 11246 and its implementing rules. Additionally, the judge did not prevent the attorney general from preparing reports or pursuing investigations related to the anti-DEI directives. The Trump administration is likely to appeal the preliminary injunction ruling, as the issues raise significant constitutional questions that could ultimately be addressed by the Supreme Court of the United States.

As discussed in some of our prior ASAPs regarding the Trump administration’s views on DEI, in promoting diversity and in talking about diversity efforts, employers must comply with the requirements of Title VII and other federal and state laws prohibiting discrimination.  These laws are interpreted by the courts and not by the president.  Employers should continue to exercise judgment in determining – within the scope of what the law allows – what is right for their business, employees, and customer relations (including the government as a customer) when deciding how to maintain and support a diverse, well qualified, and productive workplace.  These decisions are not always easy, so employers should seek assistance from their legal counsel in working through these issues.