On March 14, 2025, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit lifted a lower court’s preliminary injunction blocking key provisions of President Donald Trump’s executive orders aimed at ending programs supporting DEI and DEIA. The order does not decide the legality of the executive orders but allows the government to enforce the executive orders while the litigation continues.
As we previously reported, on February 21, 2025, the U.S. District Court for the District of Maryland issued a preliminary injunction blocking certain provisions of Trump’s DEI executive orders at issue, based on plaintiffs’ First and Fifth Amendment claims. On March 10, 2025, the same judge issued an opinion clarifying that the preliminary injunction applies to and binds not only the defendants (other than the president), but “all other federal executive branch agencies, departments, and commissions, and their heads, officers, agents, and subdivisions directed pursuant to the [DEI] Orders.”
In separate concurring opinions, the judges all agreed that the government is likely to succeed in demonstrating that the challenged provisions of the executive orders are not, on their face, unconstitutional. As Judge Pamela Harris noted in her concurring opinion, the executive orders “do not propose to establish the illegality of all efforts to advance diversity, equity or inclusion, and they should not be so understood,” rather the provisions at issue “apply only to conduct that violates existing federal anti-discrimination law.”
Nevertheless, Harris and Judge Albert Diaz each expressed concerns over potential overreach by federal agencies, with Harris noting that “agency enforcement actions that go beyond the Orders’ narrow scope may well raise serious First Amendment and Due Process concerns.” In their concurring opinions, Diaz and Harris also criticized the “vitriol now being heaped on DEI, [and] people of good faith who work to promote diversity, equity, and inclusion,” who in his opinion deserve “praise, not opprobrium.”
In her concurring opinion, Judge Allison Jones Rushing pushed back on her colleagues’ defense of DEI, stating that “an individual judge’s view on whether certain Executive action is good policy is not only irrelevant to fulfilling [their] duty to adjudicate cases and controversies according to the law, it is an impermissible consideration.”
Similar challenges to the executive orders have been filed in the U.S. District Court for the District of Columbia and the U.S. District Court for the Northern District of California.
As the legality of the executive orders are being hashed out in court, companies should continue to take stock of their DEI policies, programs, and public disclosures to determine their potential exposure to legal or administrative challenges or investigations.
From a practical standpoint, companies should consider the language of the memo issued by the U.S. Attorney General, which suggests that the Attorney General’s office will seek to eliminate “programs, initiatives, or policies that discriminate, exclude, or divide individuals based on race or sex,” but will not prohibit “educational, cultural, or historical observances – such as Black History Month, International Holocaust Remembrance Day, or similar events – that celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination.”
Companies doing business with the federal government should monitor communications from federal agencies for updates on compliance obligations and anticipate modifications to their contracts and grants related to DEI initiatives.