In February, a federal judge for the U.S. District Court of Maryland issued a preliminary injunction, effective nationwide, blocking certain aspects of the current administration’s recent Executive Orders concerning diversity, equity and inclusion (DEI).
The U.S. Court of Appeals for the Fourth Circuit has since lifted the nationwide injunction, finding that the orders in the EOs are not unconstitutional on their face. As a reminder, the following orders were at issue:
- Termination Provision. The EOs directed all executive agencies to “terminate . . . ‘equity-related’ grants or contracts.”
- Certification Provision. The EOs directed all executive agencies to “include in every contract or grant award” a certification, enforceable through the False Claims Act, that the federal contractor and grantee “does not operate any programs promoting DEI that violate any applicable Federal antidiscrimination laws”
- Enforcement Threat Provision. The EOs directed the Attorney General to take “appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI,” to “deter” such “programs or principles,” and to “identify . . . potential civil compliance investigations” to accomplish such “deter[rence].”
Further challenges should be expected. For example, a federal judge for the Northern District of Illinois granted a temporary restraining order (TRO) prohibiting the enforcement of the “Termination Provision” and the “Certification Provision.” The TRO prohibits the Department of Labor (DOL) from enforcing the Certification Provision against grant recipients nationwide, while the prohibition on the Termination Provision is only with respect to the plaintiffs in that case.
