by CUPA-HR | February 24, 2025
On February 21, a U.S. district judge issued a preliminary injunction against portions of two of the Trump administration’s executive orders regarding DEI programs. The decision, issued in U.S. District Court for the District of Maryland, blocks federal agencies from taking action to withhold federal funding from federal contractors that conduct programs or initiatives related to DEI.
Broadly speaking, “EO 14151: Ending Radical and Wasteful Government DEI Programs and Preferences” and “EO 14173: Ending Illegal Discrimination and Restoring Merit-Based Opportunity” state that DEI and DEIA programs and initiatives violate federal civil rights law, and therefore terminate all DEI programs throughout the federal government. EO 14173 orders federal agencies to incorporate clauses in all federal contracts requiring each funding recipient to attest to compliance with all federal antidiscrimination laws and affirm that it does not operate any DEI programs.
The preliminary injunction strikes down three separate provisions across these executive orders:
- EO 14151 requires the federal government to terminate all equity-related grants or contracts within 60 days (known as the “Termination Provision”).
- EO 14173 requires that every grant recipient or federal contractor affirm its compliance with all federal antidiscrimination laws and that it does not operate any DEI programs (known as the “Certification Provision”).
- EO 14173 directs the attorney general, in consultation with other relevant agencies, to promulgate a report with recommendations to enforce civil rights laws and encourage the private sector to end DEI practices. The report is required to identify “the most egregious and discriminatory DEI practitioners in each sector of concern.” It also requires each agency to identify up to nine potential civil compliance investigations as a way to deter DEI programs or principles. The EO lists institutions of higher education with endowments over $1 billion as potential targets for the civil compliance investigations (known as the “Enforcement Threat Provision”).
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, challenged these three provisions, arguing that they violate free speech rights under the First Amendment and are unconstitutionally vague — violating the Fifth Amendment. Plaintiffs additionally alleged four types of irreparable harm: threat of loss of funds, uncertainty regarding future operations, loss of reputation, and chilled speech.
The court ultimately ruled that the plaintiffs were likely to succeed on their constitutional complaints and adequately demonstrated a sufficient likelihood of irreparable harm. The decision concluded that EO 14173 offers no guidance or notice of what the government now considers illegal DEI, and that plaintiffs showed “substantial evidence of the risks of such arbitrariness,” and that by “threatening the private sector with enforcement actions based on those vague, undefined standards, the Enforcement Threat Provision is facially unconstitutional under the due process clause of the Fifth Amendment.”
The preliminary injunction means that federal agencies may not:
- pause, freeze, impede, block, cancel or terminate any awards, contracts or obligations, or change any current obligation terms on the basis of the Termination Provision;
- require any contractor to make any certification or other representation pursuant to the Certification Provision; or
- bring any enforcement action under the False Claims Act in relation to the Enforcement Threat Provision.
The injunction does not speak to actions that federal agencies may have already taken in response to both executive orders. Nonetheless, the Trump administration will likely appeal the ruling. Given that the policies raised in these executive orders will hold widespread implications for federal contractors in the higher education community, CUPA-HR will continue to share further developments.
