FOURTH CIRCUIT STAYS INJUNCTION PENDING APPEAL IN DEI CASE
The legal developments related to diversity, equity, and inclusion (“DEI”) continue to evolve. On March 14, 2025, the United States Court of Appeals for the Fourth Circuit issued an Order granting the government’s motion for a stay of the preliminary injunction entered by a Maryland district court in February. Nat’l Ass’n of Diversity Officers in Higher Educ. v. Trump, No. 25-1189 (4th Cir. Mar. 14, 2025) (“Dkt. 29”). The preliminary injunction temporarily prohibited the Trump Administration from enforcing several provisions in Executive Order 14151, Ending Radical and Wasteful Government DEI Programs and Preferencing, issued on January 20, 2025, and Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, issued on January 21, 2025 (collectively, the “Orders”). The Fourth Circuit panel unanimously agreed to stay the preliminary injunction under Nken v. Holder, 556 U.S. 418, 426 (2009) with each panel judge providing a concurring opinion.
Chief Judge Albert Diaz’s concurrence addressed DEI initiatives, writing that “despite the vitriol now being heaped on DEI, people of good faith who work to promote diversity, equity, and inclusion deserve praise, not opprobrium.” Dkt. 29 at 5. After stating that neither Executive Order “ever defines DEI or its component terms,” Judge Diaz noted, “At this preliminary stage of the litigation, where the Orders only purport to direct executive policy and actors, we don’t find vagueness principles outcome determinative. But I repeat that agency action that goes beyond the narrow scope set out in this motion could implicate Fifth Amendment vagueness concerns.” Id. at 4-5, fn. 2. Judge Diaz “reserve[d] judgment on how the administration enforces these executive orders, which may well implicate cognizable First and Fifth Amendment concerns.” Id. at 4, fn. 1.
Judge Pamela Harris’ concurring opinion shared Judge Diaz’s sentiments regarding DEI and focused on the distinction between what the Orders say on their face and how they are enforced: “The Executive Orders do not purport to establish the illegality of all efforts to advance diversity, equity or inclusion, and they should not be so understood. Instead, the so-called ‘Certification’ and ‘Enforcement Threat’ provisions apply only to conduct that violates existing federal anti-discrimination law. . . . [T]he ‘Termination’ provision directs the termination of grants, subject to applicable legal limits, based only on the nature of the grant-funded activity itself.” Id. at 7.
Judge Allison Jones Rushing’s concurrence criticized the scope of the preliminary injunction and raised issues regarding ripeness and standing because “this case does not challenge any particular agency action implementing the Executive Orders.” Id. at 9. In emphasizing the “boundaries of our constitutional role and the imperative of judicial impartiality,” Judge Rushing wrote, “A judge’s opinion that DEI programs ‘deserve praise, not opprobrium’ should play absolutely no part in deciding this case.” Id. at 10.
The current appellate briefing schedule extends into May; however, the panel directed the Clerk to set an expedited briefing schedule after consultation with the parties.
With the preliminary injunction stayed, the two Orders are again in full effect. Institutions can expect the Department of Education to continue its rigorous enforcement of federal antidiscrimination law as outlined in the Dear Colleague Letter (“DCL”) released by the Department’s Office for Civil Rights on February 14, 2025 and the related set of frequently asked questions, which were discussed in our previous client alert. Educational institutions should continue taking proactive steps to evaluate their existing programs and activities, assess potential compliance risks, and document all actions to comply with the February 14 DCL to prepare for possible program reviews, investigations, or audits in the coming weeks and months.
HMBR’s Higher Education Group will continue to monitor this issue. If you have questions about your institution’s specific programs and activities or require assistance in conducting a risk assessment or developing response strategies, please contact us via email or by phone at 312-946-1800.