Publication

24 February 2025

Federal Court Enjoins Key Portions of President Trump’s DEI Executive Orders

On February 21, U.S. District Judge Adam Abelson of Maryland issued a preliminary injunction related to several portions of two DEI-related executive orders issued by President Trump during his first days in office:

  • EO 14151, “Ending Radical and Wasteful Government DEI Programs and Preferencing,” which was issued on January 20, 2025. Among other things, this EO directed federal agencies to “terminate, to the maximum extent allowed by law, all … ‘equity-related’ grants or contracts” within 60 days of the order.
  • EO 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” issued on January 21, 2025, directed agencies to include in every contract or grant award a term requiring the contractor or grantee to agree that its compliance with all applicable Federal anti-discrimination laws is material to the government’s payment decisions for purposes of the False Claims Act. This provision creates potential liability under the FCA, which makes it illegal to defraud the government and allows whistleblowers to bring claims. EO 14173 also directs the Attorney General to develop a plan 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 Plaintiffs in this action include 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. The Plaintiffs claim that certain aspects of these two executive orders are unconstitutional, exceed presidential authority, and unconstitutionally chill free speech.

The court’s decision focused on the lack of clarity in certain language used in the EOs and the likelihood that this could chill the free speech of companies and organizations. Judge Abelson found that the EOs would likely cause constitutional violations, including against free-speech rights, and fail to “define any of the operative terms” such as “equity-related” and “illegal DEI,” leaving companies uncertain about what types of programs or policies are being restricted. Judge Abelson stated that the EOs further seek to deter certain principles and speech in clear viewpoint discrimination that is likely to violate the First Amendment.

Judge Abelson therefore issued a preliminary injunctions against the following EO provisions:

  • The termination provision in EO 14151 related to the President’s directive to “terminate … all … equity-related grants or contracts”;
  • The certification provision in EO 14173 requiring organizations to certify under threat of perjury and False Claims Act liability that they do not operate any programs promoting DEI that the government might contend violate federal anti-discrimination laws; and
  • The enforcement provisions in EO 14173 related to federal agencies bringing enforcement actions against private sector organizations based on this provision.

The preliminary injunction is national in scope, encompassing all similarly-situated federal contractors, grantees of federal funds, and other private sector entities. Judge Abelson’s order does not prevent the attorney general from preparing reports or pursuing internal investigations related to the anti-DEI directives. The Trump administration will likely appeal the preliminary injunction ruling.

It is important to note that Judge Abelson’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 EO 11246 and its implementing rules. However, on February 5, 2025 a bill was introduced in the U.S. House of Representatives seeking to codify certain provisions of the revoked EO 11246. The bill was referred to the House Committee on Education and the Workforce.

More developments on this preliminary injunction and its ongoing impact are certainly forthcoming, and we will continue to monitor these developments and update you as they occur.  Please contact the authors of this alert if you have any questions.