Trump Administration DEI Executive Orders Back in Effect

On Friday, a three-judge panel of the Fourth Circuit Court of Appeals temporarily paused a lower court’s injunction of two DEI-related executive orders of the Trump administration while the case is appealed.  (Our alert regarding that earlier injunction may be accessed here.)  Those executive orders are therefore back in effect for now.

As a result, federal contractors and grantees must be aware that the federal government is again empowered to terminate “equity-related” grants and contracts, and that they may be required to certify under threat of False Claims Act liability that they do not operate DEI programs that violate federal anti-discrimination laws.

In response to the vagueness concerns raised by the lower court when enjoining the two orders, the appellate panel held that such concerns were not “outcome determinative” but that “agency action that goes beyond the narrow scope set out in this motion” could cause the panel to change its mind.

The panel also emphasized that, in its view, the challenged executive orders “are of distinctly limited scope”—they “do not purport to establish the illegality of all efforts to advance diversity, equity or inclusion, and they should not be so understood.”  In particular, the provisions of the executive orders requiring certification and threatening potential enforcement actions “apply only to conduct that violates existing federal anti-discrimination law.”

The Appellate Court has ordered expedited briefing for the full appeal.  The government’s opening brief is due by April 8, 2025 and the plaintiffs’ response brief by May 8, 2025.

We will continue to closely monitor the Trump administration’s actions regarding DEI and the ongoing legal challenges and keep you updated of significant developments.  In the meantime, please don’t hesitate to contact one of the authors if you have questions about how the resumption of these DEI executive orders could impact your business or organization.