Maryland District Court Enjoins Significant Aspects of Anti-DEI Executive Orders
Diversity | February 24, 2025
Gibson Dunn’s DEI Task Force is available to help clients understand what these and other expected policy changes will mean for them and how to comply with new requirements.
In Brief
On February 21, 2025, the United States District Court for the District of Maryland entered a preliminary injunction enjoining in part President Trump’s Executive Orders titled “Ending Radical and Wasteful Government DEI Programs and Preferencing” (EO 14151) and “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (EO 14173). Nat’l Ass’n of Diversity Officers in Higher Educ., et al., v. Donald J. Trump, et al., No. 1:25-cv-00333-ABA, Dkt. 44–45 (D. Md. 2025). The court opened its opinion by stating that
The term ‘DEI,’ of course, is shorthand for ‘diversity, equity, and inclusion.’ And ensuring equity, diversity, and inclusion has long been a goal, and at least in some contexts arguably a requirement, of federal anti-discrimination law. But the administration has declared ‘DEI’ to be henceforth ‘illegal,’ has announced it will be terminating all ‘“equity-related” grants or contracts’—whatever the administration might decide that means—and has made ‘practitioners’ of what the government considers “DEI” the targets of a “strategic enforcement plan.
Dkt. 45 at 2.
The court enjoined the government defendants from freezing or terminating existing “equity-related” contracts and grants (pursuant to EO 14151). With respect to EO 14173, the court enjoined the government defendants from (1) requiring federal contractors and grant recipients to certify that they do not “operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws,” (2) requiring federal contractors and grant recipients “to agree that [their] compliance in all respects with all applicable Federal anti-discrimination laws is material” for purposes of the False Claims Act, and (3) bringing any enforcement action targeting “DEI programs or principles.” However, the court declined to “enjoin the Attorney General from … engaging in investigation” of DEI programs. Dkt. 44 at 62.
The preliminary injunction covers nine Cabinet-level departments, the Office of Management and Budget, and the National Science Foundation, but not President Trump. The Equal Employment Opportunity Commission (EEOC) is not a defendant and is not directly subject to the injunction. However, the injunction does cover “other persons who are in active concert or participation with” the defendant agencies. Dkt. 45 at § 3.
The preliminary injunction is nationwide and not restricted to the plaintiffs in the case. See Dkt. 44 at 60–62.
The government undoubtedly will appeal the decision to the U.S. Court of Appeals for the Fourth Circuit, which could reverse or narrow the injunction. The government also may seek a stay of the district court’s injunction while the appeal is pending. If it does not prevail before the Fourth Circuit (or only prevails in part), the government might seek an emergency stay from the Supreme Court. Accordingly, it is possible that the preliminary injunction will be lifted soon.
Digging Deeper
The plaintiffs—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—challenge one portion of EO 14151 and two portions of EO 14173. The plaintiffs sued President Trump and the following agencies: (1) the Department of Health and Human Services; (2) the Department of Education; (3) the Department of Labor; (4) the Department of the Interior; (5) the Department of Commerce; (6) the Department of Agriculture; (7) the Department of Energy; (8) the Department of Transportation; (9) the Department of Justice; (10) the National Science Foundation; and (11) the Office of Management and Budget.
First, the plaintiffs challenge EO 14151’s direction to agencies to “terminate, to the maximum allowed by law, … all [federal] ‘equity-related’ grants or contracts.” Exec. Order No. 14151, § 2(b)(i) (“Termination Provision”). The district court held that the plaintiffs had shown a likelihood of success on their claim that the Termination Provision violates the Due Process Clause of the Fifth Amendment because the term “equity-related” is impermissibly vague.
With respect to the Termination Provision, the court enjoined the agencies from “paus[ing], freez[ing], imped[ing], block[ing], cancel[ing] or terminat[ing] any awards, contracts or obligations …, or chang[ing] the terms of any” awards, contracts or obligations based on the Termination Provision. Dkt. 45 at § 3(a).
Second, the plaintiffs challenge section 3(b)(iv) of EO 14173 (referred to as the “Certification Provision” by the district court), which directs agencies to include two clauses in federal contracts and grants:
(A) A term requiring the contractual counterparty or grant recipient to agree that its compliance in all respects with all applicable Federal anti-discrimination laws is material to the government’s payment decisions for purposes of section 3729(b)(4) of title 31, United States Code; and
(B) A term requiring such counterparty or recipient to certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.
The court held that the plaintiffs had shown a likelihood of success on their claim that the Certification Provision violates the First Amendment, and enjoined the agencies from “requir[ing] any grantee or contractor to make any ‘certification’ or other representation pursuant to the Certification Provision.” Dkt. 45 at § 3(b). The phrase “other representation” appears to prohibit the agencies from requiring modifications of federal contracts to include the contract clauses described above.
Third, the plaintiffs challenge EO 14173’s instruction to the Attorney General to compile a report identifying, among other things, potential targets for “civil compliance investigations.” Exec. Order 14173, § 4(b)(iii). The district court refers to this as the “Enforcement Threat Provision.”
The court held that the plaintiffs had shown a likelihood of success on their claims that the Enforcement Threat Provision violates the First Amendment and the Due Process Clause of the Fifth Amendment because there is no guidance regarding the DEI programs or practices that the administration considers illegal.
The preliminary injunction prohibits the agencies from “bring[ing] any False Claims Act enforcement action, or other enforcement action, pursuant to the Enforcement Threat Provision, including but not limited to any False Claims Act enforcement action premised on any certification made pursuant to the Certification Provision.” Dkt. 45 at § 3(c). The court specifically declined to “enjoin the Attorney General from … engaging in investigation” of DEI programs or to prohibit the Attorney General from preparing a report identifying investigation targets. Dkt. 44 at 62.
Implications and Next Steps
As noted above, the district court’s preliminary injunction is not party-restricted and applies nationwide. However, the injunction is directed to the “Defendants” in the case. Dkt. 45 at § 3. The government is thus likely to take the position that agencies that are not defendants to the case—including the Departments of State, Defense, and Treasury, and the EEOC, Federal Communications Commission, and the General Services Administration—are not subject to the injunction except to the extent they “are in active concert or participation with” the defendant agencies. Moreover, agencies covered by the injunction might argue that the injunction does not prevent them from bringing actions against companies so long as such actions are not “pursuant to the Enforcement Threat Provision,” although this could be challenging.
As noted above, the Department of Justice is very likely to appeal this decision to the Fourth Circuit immediately, and it is possible that the Fourth Circuit will stay the district court’s order while the appeal is pending and then either reverse or narrow it after review by a merits panel. If it is unsuccessful or partially successful in the Fourth Circuit, the government might seek an emergency stay from the Supreme Court.
A separate challenge to EO 14151 and EO 14173, as well as EO 14168 (“Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”), is pending in the United States District Court for the District of Columbia. See Nat’l Urban League, et al., v. Donald J. Trump, et al., No. 1:25-cv-00471 (D.D.C. 2025).
Finally, it is worth noting that regardless of the resolution of these cases, the Trump Administration will likely attempt to continue to pursue its policies with respect to DEI programs through other enforcement mechanisms, whether through the EEOC or other agencies.
Gibson Dunn is closely monitoring these challenges to President Trump’s executive orders, and is tracking all of the President’s executive orders here. Gibson Dunn’s DEI Task Force is available to help clients understand what these and other expected policy and litigation developments will mean for them and how to comply with new requirements.
Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these developments. To learn more about these issues, please contact the Gibson Dunn lawyer with whom you usually work, the authors, or any leader or member of the firm’s DEI Task Force or Labor and Employment, Government Contracts, or False Claims Act/Qui Tam Defense practice groups:
Jason C. Schwartz – Partner & Co-Chair, Labor & Employment Group,
Washington, D.C. (+1 202.955.8242, jschwartz@gibsondunn.com)
Katherine V.A. Smith – Partner & Co-Chair, Labor & Employment Group,
Los Angeles (+1 213.229.7107, ksmith@gibsondunn.com)
Mylan L. Denerstein – Partner & Co-Chair, Public Policy Group,
New York (+1 212.351.3850, mdenerstein@gibsondunn.com)
Zakiyyah T. Salim-Williams – Partner & Chief Diversity Officer,
Washington, D.C. (+1 202.955.8503, zswilliams@gibsondunn.com)
Lindsay M. Paulin – Partner & Co-Chair, Government Contracts Group,
Washington, D.C. (+1 202.887.3701, lpaulin@gibsondunn.com)
Jonathan M. Phillips – Partner & Co-Chair, False Claims Act/Qui Tam Defense Group,
Washington, D.C. (+1 202.887.3546, jphillips@gibsondunn.com)
Jake M. Shields – Partner, False Claims Act/Qui Tam Defense Group,
Washington, D.C. (+1 202.955.8201, jmshields@gibsondunn.com)
Blaine H. Evanson – Partner, Appellate & Constitutional Law Group,
Orange County (+1 949.451.3805, bevanson@gibsondunn.com)
Molly T. Senger – Partner, Labor & Employment Group,
Washington, D.C. (+1 202.955.8571, msenger@gibsondunn.com)
Greta B. Williams – Partner, Labor & Employment Group,
Washington, D.C. (+1 202.887.3745, gbwilliams@gibsondunn.com)
Zoë Klein – Of Counsel, Labor & Employment Group,
Washington, D.C. (+1 202.887.3740, zklein@gibsondunn.com)
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