On February 21, 2025, a Maryland federal district court blocked enforcement of key provisions of two of President Trump’s executive orders targeting diversity, equity, inclusion, and accessibility (DEIA) policies and practices in the federal government, private sector, and educational institutions.
The National Association of Diversity Officers in Higher Education and three other entities (DEIA Plaintiffs) challenged EO 14151, titled “Ending Radical and Wasteful Government DEI Programs and Preferencing,” and EO 14173, titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” EO 14173 broadly targets the federal government, private-sector companies, and educational institutions that have DEIA policies or practices. It argues that entities in the U.S. “have adopted and actively use dangerous, demeaning, and immoral race- and sex-based preferences under the guise of so-called ‘diversity, equity, and inclusion’ (DEI) or ‘diversity, equity, inclusion, and accessibility’ (DEIA) that can violate the civil-rights laws of this Nation.” However, EO 14173 does not define key terms such as “illegal DEI and DEIA policies,” or provide examples of illegal DEIA policies, practices, or programs.
Although EO 14173 appears primarily focused on DEIA-related policies and practices in the federal government and private sector, it also includes a directive to the Attorney General and Secretary of Education, by May 21, 2025, to “jointly issue guidance to all State and local educational agencies that receive Federal funds . . . , regarding the measures and practices required to comply with Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023).” (The Students for Fair Admissions case was the landmark Supreme Court decision that found “race-based admissions” in higher education to be unconstitutional and a violation of the Equal Protection Clause.)
Following on EO 14173, the Department of Justice (DOJ) issued a memorandum on February 5, 2025, available here, stating that its “Civil Rights Division will investigate, eliminate, and penalize illegal DEI and DEIA preferences, mandates, policies, programs, and activities in the private sector and in educational institutions that receive federal funds.” The memo directs the Civil Rights Division to provide enforcement recommendations by March 1, 2025, and indicates that the DOJ will work with the Department of Education to issue guidance to education agencies, colleges, and universities that receive federal funds.
However, the court put enforcement actions on hold when it granted, in part, the DEIA Plaintiffs’ request for a preliminary injunction as to three major components of the executive orders.
Termination Provision – This provision directed federal agencies to terminate “equity-related grants or contracts.” The court found that DEIA Plaintiffs were likely to succeed as to their argument that the term “equity-related” in EO 14151 is unconstitutionally vague and could result in arbitrary and discriminatory enforcement. Further, the vagueness of the term offers insufficient notice to those affected about whether and how to comply and avoid the threatened penalties.
Certification Provision – This provision required federal contractors to certify they do not operate “unlawful DEI programs,” under threat of perjury and False Claims Act liability. The court found that DEIA Plaintiffs were likely to succeed as to their argument that EO 14173 violated the First Amendment by impermissibly restricting protected speech and threatening federal funding as a means of regulating speech outside the scope of the funding programs.
Enforcement Threat Provision – This provision directed the U.S. Attorney General to enforce civil rights laws against DEI programs in the private sector and educational agencies. The court found that DEIA Plaintiffs were likely to succeed as to their argument that EO 14173 violates the First Amendment by threatening enforcement actions for engaging in protecting speech. Further, it is unconstitutionally vague in violation of the Due Process Clause of the Fifth Amendment, because its prohibitions are not clearly defined.
The court’s injunction applies on a nationwide basis to all similarly situated private sector entities and recipients of federal funding. However, the court stated that it will not enjoin the Attorney General from preparing the report and recommendations referenced in EO 14173, or engaging in investigation.
This injunction is a significant victory for proponents of DEIA policies and programs, and it undermines the Trump administration’s ability to follow through on these executive orders targeting such programs. The decision is likely to be appealed by the Trump administration, and DEIA-related issues will remain in a state of uncertainty as litigation regarding these and other executive orders progresses. It is important for both private sector entities and educational institutions with DEIA policies and programs to monitor ongoing legal challenges and work with counsel to conduct a risk assessment and develop a plan moving forward.
For Further Information: Please feel free to reach out to Russell Rendall, Rebecca Singer-Miller, or any of the attorneys in Weston Hurd’s Education Law Group to discuss further. We would be happy to assist your administrative teams in navigating these complex challenges.
