By Joanna Colosimo and David Cohen
February 26, 2024 Update:
On Monday, February 24, 2025, the Trump administration filed an appeal, ensuring that the case will proceed to the U.S. Court of Appeals.
Original Blog:
In a significant legal move, Democracy Forward, on behalf of the National Association of Diversity Officers in Higher Education (NADOHE), the American Association of University Professors (AAUP), Restaurant Opportunities Centers United (ROC United), and the City of Baltimore, filed a motion for a temporary restraining order and preliminary injunction against two of President Trump’s recent Executive Orders.
These orders, issued in January 2025, aim to eliminate diversity, equity, inclusion, and accessibility (DEIA) programs from federal agencies, as well as “illegal DEI” practices from being used by private employers.
According to the lawsuit, these Executive Orders exceed the President’s authority and unlawfully usurp Congress’s spending power. Additionally, the Executive Orders are vague, which will lead to arbitrary enforcement and the violation of due process. Finally, the suit claims that these Executive Orders infringe on free speech by imposing unconstitutional conditions on Federal funding. A hearing was held on February 19, 2025, on the motion.
Preliminary Injunction Granted
On February 21, 2025, U.S. District Judge Adam B. Abelson in the District of Maryland granted in part a preliminary injunction and issued a memorandum opinion directing the following:
- The government shall not ‘pause, freeze, impede, block, cancel, or terminate any awards, contracts, or obligations’ as it relates to Executive Order 14151, “Ending Radical and Wasteful Government DEI Programs and Preferencing.”
- The government shall not “require any grantee or contractor to make any ‘certification’ or other representation pursuant to the Certification Provision” as it relates to Executive Order 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.”
- The government shall not “bring any False Claims Act enforcement action, or other enforcement action, pursuant to the Enforcement Threat Provision” as it relates to Executive Order 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.”
Some key takeaways from the over 60-page opinion include the following:
- Vagueness of Terms: The court found that the orders do not clearly define terms such as "DEI," "equity-related," or "illegal discrimination," leading to potential arbitrary enforcement and lack of fair notice.
- Impact on Federal Contractors: The Termination Provision leaves federal contractors and grantees uncertain about the legality of their programs, risking termination of contracts or grants without clear guidelines.
- First Amendment Concerns: The Certification and Enforcement Threat Provisions are viewed as unconstitutional restrictions on free speech, as they deter DEI-related expression and impose vague compliance requirements.
- Standing and Ripeness: Plaintiffs have established standing and ripeness by demonstrating concrete injuries and the chilling effect on their speech, making their claims suitable for judicial review.
- Likelihood of Success: The court concludes that Plaintiffs are likely to succeed on the merits of their First and Fifth Amendment claims, particularly due to the vagueness and speech restrictions imposed by the orders. NOTE- this is a Preliminary injunction, and the case is still ongoing.
- Irreparable Harm: Plaintiffs demonstrated that the orders cause irreparable harm by threatening their funding, operations, reputation, and free speech rights.
- Balance of Equities: The balance of equities favors Plaintiffs, as the injunction prevents further harm while allowing the government to pursue lawful anti-discrimination efforts.
It is important to note that this is a preliminary injunction, and it is expected the Trump administration will appeal this decision.
DCI is continuing to monitor developments in this case and will provide updates as necessary.
