On February 20, 2024, a Federal District Court in Baltimore preliminarily stopped the Trump DEI Executive Orders from going into effect until further legal proceedings occur. This abrupt halt of the Executive Orders will create more tension and confusion about the current state of DEI initiatives for employers, at least for the interim.
The Trump DEI Executive Orders
In the initial days of the 47th Presidential Administration, President Donald J. Trump signed several Executive Orders to address “diversity, equity, and inclusion” – specifically Ending Radical and Wasteful Government DEI Programs and Preferencing (“EO 14151”) and Ending Illegal Discrimination and Restoring Merit-Based Opportunity (“EO 14173”). The federal government almost immediately began steps to implement them.
Broadly, the Executive Orders at issue direct the termination of all DEI programs and policies in the federal government while also requiring federal contractors and grantees to certify that they are not promoting DEI that the orders say run afoul of antidiscrimination laws. They also mandate that the U.S. Department of Justice investigate and report on the "most egregious and discriminatory DEI practitioners" – including in the private sector - and create a strategy for deterring DEI programs or principles considered "illegal discrimination or preferences."
Implementation and enforcement of portions those two Executive Orders (the “Challenged Provisions”) was recently paused by a federal judge in Maryland. On February 20, 2025, U.S. District Judge Adam B. Abelson granted a nationwide preliminary injunction in favor of the Plaintiffs as to certain aspects of the Executive Orders. The case is National Association of Diversity Officers in Higher Education, et al. v. Trump, et al., Case No. 1:25-cv-00333, U.S. District Court for the District of Maryland.
The Maryland Legal Action
Plaintiffs 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, filed suit in federal court in Maryland against the President and other federal actors seeking to enjoin their implementation and enforcement of EO 14151 and EO 14173. The Plaintiffs’ lawsuit is based on claims that the Challenged Provisions violate the First Amendment (free speech), the Fifth Amendment (due process vagueness), and separation of powers (including the spending clause of the Constitution, Art. I, § 1, 8). Plaintiffs moved for a preliminary injunction and after hearing the parties’ arguments, the court granted a preliminary injunction.1
The Court’s Holding and Temporary Injunction
The Court held that the Plaintiffs were entitled to a preliminary injunction on their First and Fifth Amendment claims because they showed a likelihood of success on the merits on those claims. The Court did not decide whether the Plaintiffs showed a likelihood of success on the merits on separation of powers claims because the Plaintiffs’ showing as to the other claims was deemed sufficient for the court to grant the injunction. The Judge enjoined activities related to three (3) provisions of the Executive Orders – the “Challenged Provisions,” referring to them as: the “Termination Provision,” the “Certification Provision,” and the “Enforcement Threat Provision.”
What has been put on hold by the injunction?
The temporary injunction prohibits the federal government from:
- pausing, freezing, impeding, blocking, canceling, or terminating any awards, contracts or obligations, or changing the terms of any current contracts or obligations based on the “Termination Provision” in EO 14172 § 2(b)(i).
- requiring any grantee or contractor to make any “certification” or other representation pursuant to the “Certification Provision” in EO 14173 § 3(b)(iv).
- bringing any False Claims Act enforcement action, or other enforcement action, pursuant to the “Enforcement Threat Provision” in EO 14173, including but not limited to any False Claims Act enforcement action premised on any certification made pursuant to the Certification Provision.
For prudential and separation-of-powers reasons, the Court did not enjoin the Attorney General from preparing the report or engaging in an investigation as required in the “Enforcement Threat Provision” otherwise present in EO 14173. This means that the Attorney General must still submit a report “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.” Noted targets of investigation are 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 with endowments over 1 billion dollars.
To whom does the temporary injunction apply?
The temporary injunction is nationwide, meaning its protections extend not only to the Plaintiffs but also to non-parties. The relief does not apply to claims brought by government employees.
Initial Takeaways for Employers
To the extent that the temporary injunction extends to government contractors and grantees, enforcement and implementation of the Challenged Provisions as to them is halted for now. However, given that the Attorney General may continue preparation of any report or conduct any investigation as required by the “Enforcement Threat Provision,” clients, including purely private sector entities, should consult with counsel to determine whether any DEI initiatives or other processes or procedures would or could run afoul of the executive orders at issue and assess how such entities may be impacted by the clear Trump Administration articulation that selection and advancement of employees should be “merit based” in order to be deemed illegal, non-discriminatory preferences.
Nelson Mullins has provided updates on Trump Administration Executive Orders as they relate to “DEI” and affirmative action – See Nelson Mullins - The Trump Administration’s Rescission of Executive Order 11246: Major Changes to Affirmative Action Requirements for Government Contractors and Grant Recipients and Nelson Mullins - President Trump’s DEI Roll Backs: What Are They and How Should Employers Respond? and will continue to follow legal challenges or other information of importance to our clients and other stakeholders as they navigate the new administration’s initiatives.
1. More recently, another case was filed in federal court in the District of Columbia challenging those Executive Orders as well as another Executive Order, Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” (“EO 14168”). The D.C. action seeks to implementation of EO 14151, EO 14173, and EO 14168, challenging same based on the First Amendment (free speech), Fifth Amendment (due process vagueness), Equal Protection Clause, and Ultra Vires Presidential Action in Excess of Authority (usurping legislative function, contrary to statutes), and the Administrative Procedures Act.
