A federal district court this week issued a nationwide preliminary injunction halting key portions of President Trump's executive orders on diversity, equity, and inclusion efforts in the government and the private sector. The court ruled that the portions likely violated due process and free speech.

The case is significant, because it temporarily halts some of the Trump Administration's signature efforts, and because it shows the difficulties for the Administration in achieving these goals moving forward. (Turns out that it's not so easy to unilaterally wipe away DEI efforts while still complying with due process and free speech, let alone Spending Clause and separation-of-powers restrictions.)

The case, National Association of Diversity Officers in Higher Education v. Trump, arose when a group of plaintiffs challenged provisions in two of President Trump's executive orders: EO 14151, Ending Radical and Wasteful Government DEI Programs and Preferencing (January 20, 2025); and EO 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity (January 21, 20215). (The full docket is here.) In particular, the plaintiffs challenged the following provisions:

  • The Termination Provision. Section 2(b)(i) of the January 20 EO directs every agency to "terminate, to the maximum extent allowed by law, all . . . 'equity-related' grants or contracts."
  • The Certification Provision. Section 3(b)(iv) of the January 21 EO requires "[t]he head of each agency" to "include in every contract or grant award" a requirement that the recipient "certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws." (Including such a provision would allow individuals (called "relators") to sue any entity that may be noncompliant with the provision for damages under the False Claims Act.)
  • The Enforcement Threat Provision. Section 4(b)(iii) of the January 21 EO directs the Attorney General to make "recommendations for enforcing Federal civil-rights laws" and to devise a plan for "each agency" to "identify up to nine potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, State and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars . . . ."

The plaintiffs claimed that the Termination Provision violated the Spending Clause (which gives Congress, not the President, the power to set conditions on federal funds) and that it was unconstitutionally vague in violation of the Due Process Clause. They claimed that the Certification Provision violated free speech and the separation of powers (similar to the Spending Clause claim, that Congress, not the President, has the power over government spending). The plaintiffs claimed that the Enforcement Threat Provision was unconstitutionally vague, and that it violated free speech.

The court ruled that the plaintiffs were likely to succeed on the merits of their due process and free speech claims. (It did not rule on their Spending Clause and separation-of-powers claims.) In sum,

The term "DEI," of course, is shorthand for "diversity, equity, and inclusion." And ensuring diversity, equity, 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." But the Challenged Orders do not define any of the operative terms, such as "DEI," "equity-related," "promoting DEI," "illegal DEI and DEIA policies," or "illegal discrimination or preferences," let alone identify the types of programs or policies the administration considers "illegal."

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But it is not just the vagueness of the Challenged Provisions that renders them unconstitutional. There is a label for government action that seeks to "deter . . . principles" that the government disagrees with: "restrict[ion]" of "expression because of its message, its ideas, its subject matter, or its content." And the most "blatant" and "egregious form of content discrimination" is viewpoint discrimination. The Certification and Enforcement Threat Provisions squarely, unconstitutionally, "abridge[] the freedom of speech."