Last week a federal appeals court permanently vacated a preliminary injunction against provisions of Executive Orders 14151 (“Ending Radical and Wasteful Government DEI Programs and Preferencing”) and EO 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”). These provisions, among other things, end DEI initiatives in federal agencies and condition federal contractor funding on certification that contractors are not engaging in “illegal” DEI. They were previously enjoined based on allegations of unconstitutionality.
The Fourth Circuit held that the plaintiffs did not have standing to bring some of the claims because their allegations that their speech and conduct in support of DEI would be chilled due to fear of retribution by the Trump administration was too speculative. While the court found that plaintiffs had standing to bring the other claims and that such claims were constitutionally “ripe”, the court determined that plaintiffs were unlikely to succeed on their burden to establish that the provisions were facially unconstitutional (i.e., unconstitutional in substantially all applications). Regarding the Certification Provision, specifically, the court held that there was no constitutional issue because it only requires federal contractors and grantees to certify that they do not operate DEI programs in violation of federal anti-discrimination laws, and there is no constitutional right to violate such laws.
The court’s ruling leaves open the possibility that future challenges to the EO provisions could be upheld, depending on how the Trump administration interprets and applies them. In the meantime, federal contractors and grantees should continue to operate under the assumption that EO 14151 and EO 14173 will be enforced, subject to existing federal law. You can read the Fourth Circuit’s full decision here: 251189.P.pdf