On March 14, 2025, the United States Court of Appeals for the Fourth Circuit granted the Trump administration’s motion to stay the United States District Court for the District of Maryland’s preliminary injunction on the implementation of two executive orders — specifically Executive Orders 14151 and 14173 (“the DEI Executive Orders”) — that mobilized an end to diversity, equity, and inclusion (“DEI”) programs for recipients of federal funding, and in the private sector. The Fourth Circuit’s order was largely on procedural grounds, meaning that the ultimate viability of the DEI Executive Orders, when enforced by the administration, is still much in doubt.
The District Court’s Order
As discussed in a prior alert, on February 21, 2025, the District of Maryland ruled that the DEI Executive Orders were unconstitutional under the First and Fifth Amendments of the United States Constitution. Specifically, the district court found that the DEI Executive Orders impermissibly restricted a viewpoint disfavored by the Trump administration, and that the failure to define “DEI” rendered the orders too vague to give fair notice of what, exactly, was being prohibited.
The District Court preliminarily enjoined the implementation of the DEI Executive Orders, and upon request from the plaintiffs in that case, clarified that the injunction applied to all executive agencies — not just those named as defendants in the lawsuit.
The Fourth Circuit’s Ruling
The Fourth Circuit reversed course, at least for the time being, by lifting the preliminary injunction. Interestingly, each of the judges on the panel who heard the case issued concurring opinions setting forth their individual reasoning. Their common thread is that, while the DEI Executive Orders were acceptably narrow to allay immediate constitutional concerns, constitutional issues could arise depending on how the DEI Executive Orders are enforced by the administration.
Judge Harris explained that the DEI Executive Orders, on their face, are “distinctly limited in scope” and do not purport to make all diversity, equity, and inclusion efforts illegal. Instead, she found, the DEI Executive Orders were narrowly aimed at discontinuing programs only that violate existing federal anti-discrimination laws. Judge Harris’ ruling came with an important caveat: “What the Orders say on their faces and how they are enforced are two different things. 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.”
Chief Judge Diaz agreed that, at this preliminary stage, the DEI Executive Orders only directed executive policy and passed constitutional muster. However, he too cautioned that enforcement could run afoul of the Constitution. In that regard, the Chief Judge issued a poetic defense of DEI, extolling the accomplishments of those who promoted DEI efforts and stating that “all Americans should be able to freely consider how to continue empowering historically disadvantaged groups.”
Judge Rushing, meanwhile, adopted a more technical approach to lifting the injunction. She identified the scope of the injunction as problematic because it extended to non-parties to the case. While Judge Rushing joined her colleagues in noting that there may be potential constitutional challenges as to how the DEI Executive Orders are enforced, in her view, the fact that enforcement held the potential for challenge merely underscored that the issue was not yet ripe for judicial review. Finally, in apparent response to Chief Judge Diaz’s enthusiastic support for DEI initiatives, Judge Rushing cautioned that the judiciary must remain impartial, and that no individual judge’s view regarding DEI should play a role in deciding the case.
What Happens Next?
The case will continue before the district court, but in the absence of a preliminary injunction, the Trump administration will be free to begin enforcing the DEI Executive Orders. Employers have to anticipate that enforcement will be vigorous, as evidenced by the administration’s letters sent to 20 leading law firms questioning their respective DEI programs. As the Fourth Circuit suggested, the form that enforcement takes may well be the breeding ground for further litigation. For example, if the administration attacks DEI generally, as opposed to specific DEI initiatives that may well violate existing law, further efforts to seek injunctions of the DEI Executive Orders are inevitable. Challengers in the existing lawsuit indeed may seek to amend their complaint based on particular instances of enforcement they perceive as illegal, or new litigants may come forward with a fresh lawsuit based on constitutional challenges to enforcement.
AGG will continue monitoring the progress of the case.
