DEI Revived? Judge Issues Nationwide Injunction Against DEI-Based Executive Orders

"Vague laws invite arbitrary power," U.S. District Judge Adam Abelson of the U.S. District Court for the District of Maryland said in a ruling temporarily barring the Trump Administration from implementing parts of its executive orders (EOs) directed to diversity, equity and inclusion (DEI) programs, citing the First and Fifth Amendments to the U.S. Constitution.

On Feb. 21, 2025, Judge Abelson issued a nationwide preliminary injunction in Nat'l Ass'n of Diversity Officers in Higher Education v. Trump, __ F. Supp. 3d __, 2025 WL 573764 (D. Md. Feb. 21, 2025), barring President Donald Trump and numerous executive branch departments from enforcing EO provisions that 1) directed all executive agencies to "terminate … 'equity-related' grants or contracts" (the Termination Provision), 2) directed all executive agencies to "include in every contract or grant award" a certification, enforceable through the False Claims Act, that the contractor and grantee "does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws" (Certification Provision) and 3) directed the U.S. Attorney General to take "appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI," "deter" such "programs or principles" and "identify … potential civil compliance investigations" to accomplish such "deter[rence]" (Enforcement Threat Provision).

Within his first two days of taking office, President Trump issued a series of EOs aimed at DEI programs, which the EOs labeled as "illegal and immoral discrimination programs." (See EO "Ending Radical and Wasteful Government DEI Programs and Preferencing" and EO "Ending Illegal Discrimination and Restoring Merit-Based Opportunity," as well as a detailed observation of the former from Holland & Knight's 2025 Executive Orders tracker.) These EOs mandated the elimination of all DEI programs throughout the federal government and required federal contractors and federal grant recipients to certify that they do not maintain any DEI programs that violate federal antidiscrimination laws. Additionally, they instructed the U.S. Department of Justice to investigate and report on the "most egregious and discriminatory DEI practitioners" in the private sector and create a strategy for deterring DEI programs or principles considered "illegal discrimination or preferences." (For more on these EOs and further explanation on their impact on federal contractors, see Holland & Knight's previous alert, "DEI on the Ropes? The Future of DEI in the Trump Administration," Feb. 10, 2025.)

The Challenges to the EOs: Fair Notice and Freedom of Speech

A consortium of higher-education diversity officers, university professors, restaurant workers and Baltimore Mayor Brandon Scott bought suit to enjoin the DEI EOs on two simple premises: 1) the EOs were void for vagueness and failed to provide fair notice under the Fifth Amendment in prohibiting "'equity-related' grants or contracts" and other vague and undefined terms such as "DEI," and 2) the EOs were facially content- and viewpoint-based restrictions on speech under the First Amendment in prohibiting an award of federal funds or contracts for any use based on voicing support of DEI, while not prohibiting anti-DEI speech.

Judge Abelson agreed and enjoined enforcement of the Termination Provision, Certification Provision and the enforcement portion of the Enforcement Threat Provision. Importantly, however, Judge Abelson did not block the investigative portion of the Enforcement Threat Provision, "to the extent it is merely a directive from the President to the Attorney General to identify '[a] plan of specific steps or measures to deter DEI programs or principles … that constitute illegal discrimination or preferences.'"

Void for Vagueness Under the Fifth Amendment

Under the Fifth Amendment, individuals subject to laws imposing penalties have a due process right to sufficient clarity that they "know what is required of them so they may act accordingly." Clear guidance in the law also ensures that "those enforcing the law do not act in an arbitrary or discriminatory way."

The EOs were found to lack such necessary guidance. They called for the termination of "all discriminatory programs, including illegal DEI" and "diversity, equity, inclusion, and accessibility" (DEIA) mandates, policies, programs, preferences, and activities in the Federal Government, under whatever name they appear." The key issue was that the EOs stripped funding and contracts for "'equity-related' grants or contracts."

Judge Abelson determined this language was excessively vague and invited "arbitrary and discriminatory enforcement." One order "leaves the private sector at a loss for whether the administration will deem a particular policy, program, discussion, announcement etc., to be among the 'preferences, mandates, policies, programs and activities' the administration now deems 'illegal.'"

As posed by Judge Abelson:

"If an elementary school receives Department of Education funding for technology access, and a teacher uses a computer to teach the history of Jim Crow laws, does that risk the grant being deemed 'equity-related' and the school being stripped of funding? If a road-construction grant is used to fill potholes in a low-income neighborhood instead of a wealthy neighborhood, does that render it 'equity-related'? If a university grant helps fund the salary of a staff person who then helps teach college students about sexual harassment and the language of consent, would the funding for that person's salary be stripped as '"equity-related'? Because a person of reasonable intelligence could not answer those questions, the EOs were constitutionally infirm under the Fifth Amendment, and could not stand."

Content- and Viewpoint-Based Restrictions Under the First Amendment

Under the First Amendment, the government may choose to fund one activity over another. But it cannot punish actors because of their speech on matters of public concern by withholding funding or other government benefits. In short, "a government … 'has no power to restrict expression because of its message, its ideas, its subject matter, or its content.'"

The EOs were aimed at "deter[ring] DEI programs or principles that constitute illegal discrimination or preferences" and "encourag[ing] the private sector to end illegal discrimination and preferences, including DEI." As such, "viewpoints and speech considered to be in favor of or supportive of DEI or DEIA are viewpoints the government wishes to punish and, apparently, attempt to extinguish." There was no concomitant "restriction on anti-DEI principles that may also be in violation of existing federal anti-discrimination laws." Judge Abelson made clear: "That is textbook viewpoint-based discrimination."

The Trump Administration countered that the EOs were aimed at prohibiting "illegal" DEI programs and that illegal speech is not protected by the First Amendment. True enough. But "the government does not know what constitutes DEI-related speech that violates federal antidiscrimination laws," and the orders don't offer guidance or notice about what is considered "'illegal' DEI."

A DEI Détente? Key Takeaways

Judge Abelson's 63-page opinion is a tentative win for employers that maintain DEI programs (including, in particular, government contractors), government grantees and DEI proponents. Nevertheless, prudence is recommended before resuming or continuing existing DEI programs. Some organizations, such as the American Bar Association, are taking a "wait-and-see" approach, at least through the summer.

The injunction explicitly permits the investigative portion of the Enforcement Threat Provision to stand "to the extent it is merely a directive from the President to the Attorney General to identify '[a] plan of specific steps or measures to deter DEI programs or principles … that constitute illegal discrimination or preferences.'" The U.S. Attorney General still is permitted to track and report on employer DEI programming. The injunction also does not prevent lawsuits and investigations based on DEI initiatives, nor investigations by state attorneys general, other governmental agencies, employees and third-party organizations alleging illegal DEI programming.

The injunction also leaves open the possibility that a more narrowly tailored, content- and viewpoint-neutral EO could pass muster. A future EO with clearer definitions of "DEI" or "equity-related" terms and equal application to speech supportive of DEI activities or opposed to DEI activities could potentially withstand constitutional scrutiny. In light of the U.S. Supreme Court's recent decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023), a revised EO aligned with the Court's decision in that case likely would pass judicial scrutiny. (For more information on Students for Fair Admissions, see Holland & Knight's previous alert, "U.S. Supreme Court Rules Race-Conscious College Admissions Are Unconstitutional," June 29, 2023.)

The preliminary injunction is immediately appealable under 28 U.S.C. § 1292(a)(1). The likelihood of an appeal is high, and how the U.S. Court of Appeals for the Fourth Circuit or Supreme Court will rule on the propriety of the preliminary injunction remains uncertain. There also are other cases pending challenging the EOs where the courts in those cases could reach different conclusions.

Note that a few other DEI-related cases are pending: San Francisco Aids Foundation v. Trump and a lawsuit filed by the National Urban League, National Fair Housing Alliance and Aids Foundation of Chicago are seeking to block the DEI EOs. Also, Ames v. Ohio Department of Youth Services was scheduled for oral argument in the U.S. Supreme Court on Feb. 26, 2025, and could have impact on standards for reverse discrimination as they relate to DEI practices.

Next Steps

The legal status of the EOs is in a dynamic state. For now, government contractors and other employers, grant recipients and DEI proponents should consider the following:

• closely evaluate existing DEI programs in light of current federal law, including Students for Fair Admissions, to ensure they do not violate existing fair employment practices laws
• review current bids, proposals and contracts with any U.S. government agencies for references to DEI or equity programs to determine possible triggers for investigations
• consult knowledgeable counsel to advise on risk and strategy for DEI programs during this time of legal flux

Please contact the authors or another member of Holland & Knight's DEI Task Force to address questions you may have about your DEI mandates, policies, programs, preferences and activities.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.