On March 14, 2025, a three-judge panel of the Fourth Circuit Court of Appeals, issued an order granting the Trump Administration’s motion to stay enforcement of the District Court’s nationwide preliminary injunction on two Executive Orders (EOs) issued by the Trump Administration that target diversity, equity, and inclusion (DEI) programs. We covered the scope of the nationwide injunction as issued in a prior legal alert, available here.
At issue before the Maryland federal district court are the EOs titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” and “Ending Radical Government DEI Programs and Preferencing,” which target federal programs tied to DEI and seek to influence private sector programs. On February 21, the district court issued a nationwide preliminary injunction halting enforcement of specific aspects of these EOs relating to federal contractor and grantee certifications, termination of equity-related grants and contracts, and threatened investigations of private-sector DEI programs. On appeal the Administration argued that enforcement of the preliminary injunction issued by the lower court should be stayed pending appeal. The Fourth Circuit ruled – without meaningful explanation – that the Administration had satisfied its burden to establish grounds for the requested stay of enforcement and stated it would set an expedited briefing schedule for the appeal.
While the Fourth Circuit’s order grants the motion for stay, this ruling only pauses the lower court’s injunction. Noteworthy, each member of the three-judge panel wrote concurring opinions. Chief Judge Diaz and Judge Harris wrote concurrences expressly supporting DEI efforts. Chief Judge Diaz noted in his opinion the importance of DEI initiatives and the Administration’s failure to define illegal DEI but expressed concern over reducing individuals to assigned identities based on race or sex. Instead, Judge Diaz signaled support for a balanced approach that empowers historically disadvantaged groups without oversimplifying their identities. “[D]espite the vitriol being heaped on DEI, people of good faith who work to promote diversity, equity, and inclusion deserve praise, not opprobrium.”
In her written opinion, Judge Harris distinguished between the language of the EOs and how they might be enforced. She noted that if enforcement extended beyond the orders’ “narrow scope,” it would likely raise “serious First Amendment and Due Process concerns,” as the district court had thoroughly explained. However, Judge Harris concluded that the lawsuit in question did not challenge any specific enforcement actions.
Judge Rushing noted the administration had made a “strong showing” of likely success on the merits of the matter and criticized the scope of the preliminary injunction. Judge Rushing also questioned the ripeness of the matter, as no actual enforcement action is being challenged in the lawsuit.
In agreeing to halt the enforcement of the preliminary injunction, the court concluded that the EOs, as currently written, do not inherently violate constitutional rights, as the scope of the EOs are limited to activity that already violated existing antidiscrimination laws, and that no enforcement action has yet been challenged in the lawsuit. As such, the majority found that the Government was likely to succeed in its appeal of the preliminary injunction.
As a result of the Fourth Circuit’s decision, the Government is permitted in new or amended contracts to require federal contractors and grantees to certify compliance with all pre-existing federal antidiscrimination laws and certify that they do not maintain DEI programs that violate pre-existing federal antidiscrimination laws. Failure to do so may impact funding to such federal contractors. Additionally, the Government is permitted to terminate certain government contracts that it finds to be discriminatory, and to initiate investigations into DEI programs believed to violate existing antidiscrimination laws.