Court Blocks Key Provisions Under Trump Administration's Anti-DEI Executive Orders

• Published date: 03 March 2025
• Subject Matter: Corporate/Commercial Law, Employment and HR, Contract of Employment, Discrimination, Disability & Sexual Harassment, Diversity, Equity & Inclusion
• Law Firm: Foley Hoag LLP
• Author: Ms Jasmine Brown, Christopher E. Hart and Christopher Feudo

On Friday, February 21, 2025, the United States District Court for the District of Maryland issued a preliminary injunction against key provisions of executive orders issued by President Trump that are aimed at curtailing the advancement of diversity, equity, and inclusion (DEI) programs, practices, and funding. The court's ruling in National Association of Diversity Officers in Higher Education v. Trump scrutinized three main provisions: the "Termination Provision," the "Certification Provision," and the "Enforcement Threat Provision," each of which is described further below. Here's a comprehensive breakdown of the court's analysis and findings on these provisions.

I. Termination Provision

Vagueness and Arbitrary Enforcement

The Termination Provision, found in Section 2(b)(i) of Executive Order 14151 (Jan. 20, 2025) (also known as "Ending Radical and Wasteful Government DEI Programs and Preferencing"), direct federal agencies to terminate all "equity-related" grants or contracts within 60 days from the date of the Order. The court found this provision to be unconstitutionally vague, primarily because it fails to define what constitutes "equity-related" grants or contracts.

The court noted that the term "equity" itself is broad and lacks a clear definition within the context of the executive order. For example, the provision does not specify whether "equity" is limited to diversity, equity, and inclusion (DEI), or diversity, equity, inclusion, and accessibility (DEIA), or whether it extends beyond these concepts. And when coupled with the term "related," the lack of a clear definition enhances further the ambiguity in the definition, as it becomes unclear how strong or tenuous a connection must be for a grant or contract to be considered "equity-related."

The court posited a few hypothetical examples to illustrate the potential for misinterpretation and to underscore the provision's failure to provide clear guidance:

• If an elementary school uses Department of Education funding for technology access and a teacher uses a computer to teach the history of Jim Crow laws, could this be deemed "equity-related"?
• If a road-construction grant is used to fill potholes in a low-income neighborhood instead of a wealthy neighborhood, does that render it "equity-related"?
• If a university grant funds a staff person who teaches about sexual harassment and consent, could the funding for that person's salary be stripped as "equity-related"?

These examples leave grantees in each instance to guess what might be...