Yesterday, the Fourth Circuit granted the federal government’s motion to stay (temporarily suspend) a lower court’s preliminary injunction that had blocked the enforcement of two Executive Orders issued by President Trump in January 2025. I wrote about that injunction in a prior post on our firm’s sister blog. These Executive Orders direct federal agencies to end Diversity Equity and Inclusion (DEI) programs within federal grant and contract processes.
The district court had initially issued a nationwide injunction preventing the government from enforcing these orders, finding that certain provisions likely violated the First and Fifth Amendments. However, the Fourth Circuit has now paused that injunction while the appeal moves forward on an expedited schedule.
As a refresher, the Executive Orders aim to eliminate what they characterize as “race- and sex-based preferences” in federal contracting and grant processes. Specifically, they target:
- DEI-related requirements in federal grants and contracts
- “Equity-based” grants or contracts
- Programs described as advancing diversity, equity, and inclusion
The Appeals Court’s decision is not a final decision on the merits; rather, it just allows the Trump Administration to administer the policy while the case proceeds on an expedited basis.
The order itself is fairly sparse on its reasoning. But what is particularly interesting about this order is the three separate concurring opinions that reveal the judges’ thoughts on DEI more broadly:
- Chief Judge Diaz (an Obama appointee) wrote passionately about the value of true diversity, equity, and inclusion, calling them fundamentally American values. He went on to note that “people of good faith who work to promote diversity, equity, and inclusion deserve praise, not opprobrium.”
- Judge Harris (a Biden appointee) explicitly stated her disagreement with the Orders’ “attack on efforts to promote diversity, equity, and inclusion.” From her perspective, the Orders do not “purport to establish the illegality of all efforts to advance diversity, equity or inclusion, and they should not be so understood.”
- Judge Rushing (a Trump appointee) cautioned that judges’ personal views — as she described Judge Diaz’s concurrence — on DEI should play “absolutely no part in deciding this case.”
These differing perspectives highlight the ongoing national conversation about DEI initiatives and their place in American society.
For employers, the guidance I discussed previously still applies. Employers should consider:
- Reviewing Your Federal Contracts and Grants: Identify any provisions or requirements related to DEI initiatives that might be affected by these Executive Orders. Be particularly mindful of your certifications and be sure to talk with legal counsel about exactly what you are certifying.
- Documenting Your Programs: Ensure your DEI initiatives are clearly documented with objectives that align with legitimate business purposes beyond mere compliance with previous federal requirements.
- Staying Up-to-Date: As noted, this litigation will continue and the ultimate outcome remains uncertain.