Update: Trump Wins Stay of Ruling that Blocked DEI Executive Orders

The courtroom battle over DEI initiatives rages on.

In the latest development in an important ongoing case, a federal appeals court has temporarily blocked a ruling that halted enforcement of key provisions in two anti-DEI executive orders issued by President Trump shortly after he took office.

The ruling freezes the pendulum in a case that still has a way to go before a final resolution is reached.

Background: Fast-Moving DEI Case Reaches Appeals Panel

This case involves a challenge by three associations and the mayor and city council of Baltimore to key provisions of two executive orders Trump signed soon after his inauguration.

Those orders declared war on DEI initiatives, including by:

• Directing executive agencies to terminate “equity-related” contracts.
• Directing executive agencies to include in every contract or award a certification that the contractor/grantee does not operate programs “promoting DEI.”
• Directing the federal attorney general to encourage the private sector to end DEI, and to deter such programs via “civil compliance investigations.”

Those three specific directives are the focus of the suit. The plaintiffs say that in combination, they violate the Constitution’s Spending Clause and Free Speech Clause — and that they present further constitutional problems relating to vagueness and separation of powers.

Lower Court Hamstrings Enforcement of DEI Orders

They fared well overall with those arguments at the district court, which decided they were entitled to a preliminary injunction blocking enforcement of those provisions. The lower court issued its ruling based on the plaintiffs’ claims relating to free speech and vagueness.

It said that as to the provision requiring the termination of “equity-related” contracts and grants, the plaintiffs are likely to succeed on that allegation of unconstitutional vagueness.

The lower court also said that the plaintiffs are likely to win on their claim that the certification provision unconstitutionally restricts the free speech rights of federal contractors and grantees.

And the enforcement provision likely is unconstitutional because it threatens enforcement actions that are based on protected speech, the court decided.

Notably, the lower court said its injunction applied on a nationwide basis and extended to non-parties to the litigation.

The government’s predictable appeal followed on the heels of the February 21 decision to grant the requested relief. In the appeal, it asked a federal appeals court to grant its motion for a stay of the injunction pending appeal. Alternatively, it asked the appeals panel to limit the injunction’s application to the plaintiffs and named defendants in this litigation.

In support of its application for a stay, the government said the challenged DEI orders are limited and do not purport to make all DEI efforts illegal.

Appeals Court: Hold on a Minute

In mid-March, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit issued a decision on the government’s motion.

The panel decided that the government satisfied the factors needed to show entitlement to a stay. Those factors are:

• Whether the applicant for the stay is likely to succeed on the merits.
• Whether the applicant will be irreparably harmed if the stay is denied.
• Whether a stay will substantially injure the other side.
• Whether granting a stay is in the public interest.

The appeals court’s order concluded that the applicable factors have been satisfied.

An important point to note about the appeals court’s order is the fact that two of the three appeals panel judges, while concurring with the conclusion that a stay is warranted, nonetheless expressed their clear support for DEI programs.

Judges Express Support for DEI Programs

Chief Judge Albert Diaz said people who work to promote DEI “deserve praise, not opprobrium,” and Judge Pamela Harris echoed that sentiment. Diaz also suggested that there is a vagueness problem with the challenged executive orders, commenting that “neither order ever defines DEI or its component terms.”

In other words, it’s one thing to say that a stay was warranted – but it’s quite another to say that the issuance of a stay presages an ultimate win for the government on the merits.

This latest development is a win for the government to the extent that it places the stay on hold. But there are also subtle signals that the challenged order provisions may ultimately be invalidated.

Remember: The appeals court did not make a final decision on the fate of these DEI executive orders. Instead, the case now moves to a more in-depth court analysis of their validity.

National Ass’n of Diversity Officers in Higher Education v. Trump, No. 25-1189 (4th Cir. 3/14/25).