Gericht untersagt Teile der DEI-Verordnungen der Trump-Regierung
In another regulatory turn for federal contractors and private employers, a federal judge partially enjoined enforcement of provisions of the Trump Administration’s executive orders[1] regarding diversity, equity, inclusion and accessibility (DEI or DEIA) programs on Friday, February 21, 2025.[2] The preliminary injunction applies nationwide, covering both plaintiffs and nonparties.
The Provisions Enjoined
The court’s order restricts enforcement of three provisions across two executive orders:
- The Termination Provision (§ 2(a)) of Exec. Order No. 14151 is enjoined. This provision requires each agency, department, or commission head to terminate all “equity-related grants or contracts” within 60 days of the order. This is a subsection of the order’s larger provision directing the Office of Management and Budget director to “coordinate 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[.]”
- The Certification Provision (§3(b)) of Exec. Order No. 14173 is enjoined. This provision requires the head of each agency to include a requirement in each contract or grant award for the counterparty/recipient to agree that its compliance with federal anti-discrimination laws is material to payment decisions under the False Claims Act. It further requires the counterparty to certify that it does not operate programs promoting DEI that violate federal anti-discrimination laws.
- The Enforcement Threat Provision (§ 4) of Exec. Order No. 14173 is enjoined. This provision directs each federal agency to identify up to nine potential civil compliance investigations of publicly traded corporations, nonprofits, foundations, bar or medical associations, or higher education institutions, with the goal of encouraging the private sector to end illegal discrimination and preferences.
The Provisions Are Unconstitutionally Vague
The Termination and Enforcement Threat Provisions are enjoined because they are “unconstitutionally vague as to all contractors and grantees who are subject to them.”
The orders are unconstitutionally vague because they do not define key terms such as “DEI,” “equity-related,” or “illegal DEI.” This leaves federal contractors and their employees with “no idea whether the administration will deem their contracts or grants, or work they are doing, or speech they are engaged in, to be ‘equity-related,’” and the private sector unaware of whether a particular program, discussion, or policy is deemed “illegal.”
The Provisions Violate Free Speech Rights
The Certification and Enforcement Threat Provisions were also enjoined because they are “content- and viewpoint-based restrictions that chill speech as to anyone the government might conceivably choose to accuse of engaging in speech about ‘equity’ or ‘diversity’ or ‘DEI,’ or the other topics the [Executive] Orders cite.”
Reports and Investigations May Continue
Citing prudential and separation-of-powers reasons, the court did not restrict the attorney general’s ability under the orders to prepare reports and pursue investigations. Pursuant to the Administration’s direction to the attorney general’s office and based on press releases from the attorney general’s office, the attorney general has been developing an “enforcement plan” for the provisions of the executive orders as well as a plan for conducting criminal investigations.
What’s Next?
This case is in early stages and is one of numerous challenges proceeding in the courts. We will continue to monitor this case as well as any related decisions impacting DEI policies of both federal contractors and private employers. We recommend employers consult DEI experts and labor and employment counsel to assess their DEI policies and determine if changes are necessary to mitigate risk. For additional guidance on the current administration, visit Foley’s Presidential Transition Hub.
[1] This case involves challenges to Exec. Order No. 14151, Ending Radical and Wasteful Government DEI Programs and Preferencing (Executive Order of January 20, 2025); Exec. Order No. 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, (Executive Order of January 21, 2025).
[2] The case is National Association of Diversity Officers in Higher Education et al v. Trump et al, No. 1:25-cv-00333 (D. Md.).
