On Friday, March 14, 2025, the Fourth Circuit Court of Appeals lifted a preliminary injunction on President Trump’s Executive Orders regarding DEI. In concurring opinions, the judges expressed varying levels of support for employers’ DEI initiatives. However, the appellate panel agreed that the district court’s pre-implementation preliminary injunction was premature, and the Fourth Circuit stayed the preliminary injunction.
Background
This case arose when the plaintiffs, including the Mayor and City Council of Baltimore and three national associations, challenged the constitutionality of President Trump’s two DEI Executive Orders (E.O. 14151 and E.O. 14173). The federal district court in Maryland found provisions of those Executive Orders unconstitutional under First and Fifth Amendment grounds.
On February 21, 2025, the court issued a nationwide injunction barring defendants from enforcing the challenged provisions against the plaintiffs and against “similarly situated non-parties.” Nat’l Ass’n of Diversity Officers in Higher Educ. v. Trump, — F. Supp. 3d —, 2025 WL 573764, at *29 (D. Md. Feb. 21, 2025[AK1] ). Then, on March 10, 2025, the district court clarified that the preliminary injunction broadly applied to federal executive branch agencies, departments, and commissions. Nat’l Ass’n of Diversity Officers in Higher Educ. v. Trump, — F. Supp. 3d. —, 2025 WL 750690, at *4 (D. Md. Mar. 10, 2025[AK2] ).
The government appealed to the Fourth Circuit and sought a stay of the preliminary injunction (or that it be limited only to the plaintiffs or named defendants).
Appellate Court Stays Preliminary Injunction, Pending Appeal
The Fourth Circuit granted the government’s request for a stay of the preliminary injunction through an unsigned order upon the unanimous agreement of the panel. On appeal, the Fourth Circuit’s panel of Chief Judge Diaz, Judge Harris, and Judge Rushing each filed concurring opinions to the unsigned order. While the unsigned order is light on analysis, each judge’s concurring opinion provides additional insights.
Chief Judge Diaz wrote the first concurring opinion supporting the many goals of DEI programs and open discussion about DEI programs. Chief Judge Diaz noted that “previously marginalized Americans are thriving in spaces long closed to them. And we are the better for it.” Nat’l Ass’n of Diversity Officers in Higher Educ. v. Trump, No. 25-1189, slip op. at 6 (4th Cir. Mar. 14, 2025). In bookends to the concurring opinion, Chief Judge Diaz referred to DEI initiatives as “a monster in America’s closet,” id. at 4, which may be “but a mere shadow, for which the remedy is simply light,[AK3] ” id. at 6. Chief Judge Diaz previewed that the Executive Orders were unclear about what types of DEI programs may be viewed as illegal and that the government could not respond to the district court’s hypotheticals about what kind of DEI programs might be illegal.
Judge Harris concurred that a stay was warranted, pending appeal. But that her “vote . . . comes with a caveat.” Id. at 7. Judge Harris noted that agency enforcement actions “may well raise serious First Amendment and Due Process concerns, for the reasons cogently explained by the district court.” Id. However, Judge Harris concurred because the current lawsuit “does not directly challenge any [enforcement] action.” Id. at 8.
Judge Rushing concurred and noted that the scope of the district court’s preliminary injunction “should raise red flags.” Id. at 9. Judge Rushing appeared to take a stronger stand that the government “is likely to succeed in demonstrating that the challenged provisions of the Executive Orders—all of which are directives from the President to his officers—do not violate the First or Fifth Amendments.” Id. Judge Rushing’s concurrence was limited to Article III constitutional concerns regarding ripeness and standing doctrines that constrain courts to deciding actual cases and controversies.
Advice for Employers
Employers with DEI programs, particularly federal contractors and subcontractors, would be well advised to continue monitoring developments from the federal courts, as well as executive agencies (such as the U.S. Department of Justice, Equal Employment Opportunity Commission, Department of Labor, and the like). By staying the district court’s preliminary injunction against the Trump DEI Executive Orders, the Fourth Circuit opened the door for the executive branch to begin implementing and enforcing those same Executive Orders.
Employers (especially federal contractors and subcontractors) should consult counsel regarding their own current DEI efforts and ensure that they are well positioned to navigate the changing landscape of DEI initiatives and federal investigation and enforcement practices.
