Anti-DEI Executive Orders Are Enforceable, for Now, After Fourth Circuit Lifts Preliminary Injunction

The stay was issued four days after the U.S. District Court for the District of Maryland granted the plaintiffs’ motion to clarify the scope of its preliminary injunction and ordered that the injunction would be binding on all federal executive branch agencies, departments, and commissions, and their heads, officers, agents, and subdivisions. As reported in our prior Client Alert, the preliminary injunction ordered that the Trump administration shall not implement the Anti-DEI EOs, with respect to the plaintiffs or any similarly situated nonparty, by taking action to:

• pause, freeze, impede, block, cancel, terminate, or change the terms of any current federal awards, contracts, or obligations on the basis of the provision calling for termination of “equity-related” grants and contracts (the Termination Provision);
• require any federal grantee or contractor to make any “certification” or other representation that the grantee or contractor does not “promote DEI” in violation of antidiscrimination laws (the Certification Provision); or
• bring any False Claims Act enforcement action, or other enforcement action, against “illegal DEI” in order to deter voluntary private sector DEI programs (the Enforcement Threat Provision).

In granting the preliminary injunction, the district court concluded that the Termination and Enforcement Threat Provisions were unconstitutionally vague under the Fifth Amendment’s Due Process Clause and that the Certification and the Enforcement Threat Provisions impermissibly restricted and chilled the plaintiffs’ speech based on content and viewpoint, in violation of the First Amendment. The Government promptly appealed the ruling to the Fourth Circuit and filed a motion for a stay pending appeal.

While the order issued by the Fourth Circuit grants the motion for stay, this ruling only pauses the lower court’s injunction. The brief order from the Fourth Circuit, supported by all three judges on the panel, stated that the Government met its burden justifying a stay of the preliminary injunction pending resolution of the appeal. All three judges also wrote concurring opinions. Two of the concurrences, by Chief Judge Diaz and Judge Harris, expressed support for diversity, equity, and inclusion efforts.

In his concurring opinion, Chief Judge Diaz stated that he is compelled to “address what seems to be (at least to some) a monster in America’s closet—[DEI] initiatives.” He wrote, “despite the vitriol being heaped on DEI, people of good faith who work to promote diversity, equity, and inclusion deserve praise, not opprobrium.” The opinion is imbued with First Amendment principles, noting the value of “open discussion and principled debate,” rejecting the practice of “scrubbing the shameful moments of [a country’s] past,” and asserting that “when [this country’s] policies are truly inclusive, it creates an environment and culture where everyone is respected and valued. What could be more American than that?” Chief Judge Diaz’s opinion also notes that neither of the Anti-DEI EOs defines DEI. In a footnote, he explains that the constitutionality of the EOs may turn on how the government interprets the term.

Judge Harris’ concurring opinion contains a similar warning, “[w]hat the [EOs] say on their face and how they are enforced are two different things.” While her concurrence credits, for now, the Government’s assertions that the EOs “do not purport to establish the illegality of all efforts to advance diversity, equity or inclusion,” “apply only to conduct that violates existing federal anti-discrimination law,” and call for the termination of grants “based only on the nature of the grant-funded activity itself,” the constitutionality of ensuing enforcement actions are a different matter. Like Chief Judge Diaz, Judge Harris cautions that enforcement actions exceeding the narrow interpretations of the EOs “may well raise serious First Amendment and Due Process concerns, for the reasons cogently explained by the district court.” Judge Harris by noting that her vote “should not be understood as agreement with the [EOs’] attack on efforts to promote [DEI].”

The concurrence by Judge Rushing departs from those of Chief Judge Diaz and Judge Harris. Judge Rushing writes, “[a] judge’s opinion that DEI programs ‘deserve praise, not opprobrium’ should play absolutely no part in deciding this case.” She notes that the case “does not challenge any particular agency action implementing the [EO]” and yet the district court relied on evidence of how agencies are implementing, or may implement, the EOs. This reasoning by the lower court, she contends, “highlights serious questions about the ripeness of this lawsuit and plaintiffs’ standing to bring it as an initial matter.”

On the same day that the Court of Appeals issued its stay, the Department of Education’s Office of Civil Rights (OCR) announced that it was opening Title VI investigations into 45 universities for allegedly engaging in “race-exclusionary practices” by partnering with The PhD Project, a nonprofit that focused on supporting students from underrepresented groups earn doctoral degrees in business. The OCR announcement states that the Department of Education “is working to reorient civil rights enforcement to ensure all students are protected from illegal discrimination.” The announcement also identified six higher education institutions that it is investigating for alleged “impermissible race-based scholarships.” The OCR action did not reference the Anti-DEI EOs, but rather cited the Department of Education’s February 14, 2025, Dear Colleague Letter, which is described as providing the Department’s current guidance on Title VI of the Civil Rights Act and constitutional protections.

The issuance of the temporary stay, together with the enforcement action from the Department of Education, revives the environment of uncertainty into what initiatives relating to diversity, equity, and inclusion may result in loss of federal funding or lead to investigation by federal agencies. Pillsbury will continue to monitor these developments and to update its Trump 2.0 Resource Center. Institutions and organizations with questions about the lawfulness of their DEI programs are encouraged to consult legal counsel for individualized advice about compliance and risks.