On February 21, 2025, the United States District Court for the District of Maryland issued a nationwide preliminary injunction halting the enforcement of three key provisions of President Trump’s Executive Orders intended to eliminate diversity, equity, and inclusion (DEI), in the federal government and beyond. See National Association of Diversity Officers in Higher Education et al. v. Trump et al., No. 1:25-cv-00333 (D. Md. Feb. 21, 2025). These Executive Orders, 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, have sparked legal challenges from national organizations who argue that the orders are unconstitutional.
The three key provisions of the Executive Orders addressed in the court’s ruling are as follows:
- The “Termination Provision,” which directed all executive agencies to “terminate… ‘equity-related’ grants or contracts;”
- The “Certification Provision,” which directed all executive agencies to “include in every contract or grant award” a certification, enforceable though the False Claims Act, that the contractor and grantee “does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws,” and
- The “Enforcement Threat Provision,” which orders the Attorney General to take “appropriate measures to deter private businesses from engaging in DEI programs and initiatives upon threat of civil compliance investigations and makes “practitioners” of DEI the targets of a “strategic enforcement plan.”
The Plaintiffs in this case, Democracy Forward on behalf of the National Association of Diversity Officers in Higher Education, the American Association of University Professors, Restaurant Opportunities Centers United, and the Mayor and City Council of Baltimore, Maryland, all of whom are impacted by these orders, argued that they face irreparable harm due to the vague nature of the provisions and the chilling effect they have on free speech.
Plaintiffs' Argument: Constitutional Violation and Overreach
The Plaintiffs assert that the Executive Orders violate their constitutional rights by imposing vague and overbroad restrictions on speech and association. They argue that the Executive Orders are so imprecise in their use of the undefined terms “equity,” “equity-related,” “DEI,” “illegal DEI,” “illegal DEI and DEIA policies,” and “illegal discrimination or preferences,” that they could be applied to a wide range of activities and expressions, and contractors, their employees, and the private sector are left without any definitions or guidance indicating what the administration might deem “equity-related” or “illegal.” It is this uncertainty, the plaintiffs argue, that creates a chilling effect, deterring them from engaging in protected speech.
The plaintiffs further argue that the provisions disproportionately impact organizations and individuals advocating for social justice and civil rights, particularly in the context of race, gender, and identity. They contend that such provisions violate the First Amendment’s guarantees of free speech and free association, as well as due process protections under the Fifth Amendment.
Court’s Ruling: Preliminary Injunction Granted
Following argument from both sides, in a 63-page order, the court concluded that the plaintiffs demonstrated a likelihood of success on the merits of their claims, particularly regarding the unconstitutionality of the provisions. The court found that the challenged provisions of the Executive Orders could lead to substantial, irreparable harm to the plaintiffs and their members, who are at risk of facing threats of termination, loss of contracts or punishment/fines based on the vague and subjective criteria in the Executive Orders. Additionally, the court found that the Executive Orders have an impermissible chilling effect on free speech and highlighted that they appear to target specific speech, raising even further doubts as to their constitutionality. Beyond this, the court found that the Executive Orders do not sufficiently provide notice of what exactly is being prohibited and thus run afoul of the Due Process clause of the Constitution.
As a result, the court granted a preliminary injunction, preventing the federal government from enforcing the Termination Provision, the Certification Provision, and the Enforcement Threat Provision of the Executive Orders. The injunction applies to the plaintiffs directly and, more significantly, extends to non-parties similarly situated, reinforcing the fact that such provisions could not be enforced against others who may face similar risks and constitutional violations. The court specifically noted that the Executive Orders “apply broadly to the private sector” and impact “pure private speech” protected by the First Amendment. The court further noted that “Plaintiffs have shown a likelihood of success on the merits of their claim that the Enforcement Threat Provision, which threatens to bring enforcement against perceived violators of undefined standards, is, on its face, an unlawful viewpoint-based restriction on protected speech.”
The Scope of the Injunction: Nationwide Relief
The District Court generally has discretion in determining the scope of an injunction and ruled that extending the injunction to non-parties was necessary in this case. The court emphasized that the Executive Orders not only impacted the plaintiffs but could also affect others across the country in similar ways. In these instances, a “nationwide injunction,” is particularly fitting as the Executive Orders attempt to uniformly impact a vast range of individuals and entities.
The court cited previous cases, such as HIAS v. Trump (nationwide temporary and permanent injunction issued in a case challenging President Trump’s Executive Order issued during his first term giving states and localities the power to block refugees from resettling in their areas) and County of Santa Clara v. Trump (nationwide temporary and permanent injunction issued in a case challenging President Trump’s first-term Executive Order seeking to deny federal funding to any states or localities that failed to participate in the President’s immigration enforcement plans), where nationwide injunctions were deemed appropriate because the policies in question had broad and sweeping effects. In this case, the court found that the vagueness and viewpoint-based discriminatory nature of the Executive Orders’ provisions had the potential to affect a wide range of contractors, grantees, and organizations, thus justifying the nationwide relief.
As a result, the court held:
- The Termination Provision’s failure to define key terms (e.g., equity, equity-related, DEI and illegal DEI) renders it unconstitutionally vague and thus leaves contractors and grant recipients unable to determine whether their contracts or grants could be terminated and/or how to comply with the Executive Orders’ directives;
- The Certification Provision requires contractors and grant recipients to certify they do not operate programs the administration deems constitute “illegal DEI” under the threat of False Claims Act liability, which likely violates the First Amendment’s protection of freedom of speech; and
- The Enforcement Threat Provision constitutes a violation of free speech because it will chill DEI-related speech due to the dearth of definitions and specificity as to what constitutes illegal DEI.
The preliminary injunction issued in this case has temporarily halted enforcement of the above-detailed aspects of the Executive Orders; however, it will likely be appealed.
Limits of the Injunction
Despite the sweeping nature of the preliminary injunction, the court drew a line in its decision. It did not extend the injunction to stop the Attorney General from preparing a report required by the Executive Orders or from conducting investigations into potential violations of the Executive Orders. The court noted that while it was issuing the injunction to stop the provisions affecting DEI programs, it would not interfere with the Attorney General’s duties related to investigating and reporting on potential violations.