On Friday, February 21, a Maryland federal court judge in Maryland issued a nationwide injunction temporarily preventing enforcement of three key provisions of President Trump’s Executive Orders 14151 and 14173 targeting DEI programs (links below). The court found the following provisions of the Orders were unconstitutional under the First and Fifth Amendments of the U.S. Constitution.

• The requirement that federal contractors and grantees certify that they do not operate “illegal” DEI programs and comply with federal discrimination laws for purposes of False Claims Act (the “Certification” provision in EO14173 Section 3(b));
• The provision directing the Attorney General to deter “illegal” DEI programs or principles in the private sector by, in part, submitting a report identifying up to nine civil enforcement investigations of certain private sector companies, associations, and educational institutions (the “Enforcement Threat” provision in EO14173 Section 4); and
• The requirement that federal agencies terminate federal equity-related grants or contracts (the “Termination” provision in EO 14151 Section 2(b)(i)).

The challenged provisions in President Trump’s DEI Executive Orders are Executive Order 14151 (Jan. 20, 2025) and Executive Order 14173 (Jan. 21, 2025).

The Certification Provision:

Section 3(b) of EO 14173 requires the head of each agency to include in every contract or grant award:

1. A term requiring the contractual counterparty or grant recipient to agree that its compliance in all respects with all applicable Federal anti-discrimination laws is material to the government’s payment decisions for purposes of section 3729(b)(4) of title 31, United States Code; and
2. A term requiring such counterparty or recipient to certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.

The Enforcement Threat Provision:

Section 4 of the same order, entitled “Encouraging the Private Sector to End Illegal DEI Discrimination and Preferences,” directs the heads of all federal agencies, with the assistance of the Attorney General, to:

1. take “all appropriate action with respect to the operations of their agencies to advance in the private sector the policy of individual initiative, excellence, and hard work identified in section 2 of this order”; and
2. to further inform and advise the President so that the Administration may formulate appropriate and effective civil-rights policy, the Attorney General, within 120 days of this order, in consultation with the heads of relevant agencies and in coordination with the Director of OMB, shall submit a report to the Assistant to the President for Domestic Policy containing recommendations for enforcing Federal civil-rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI.

In addition, the report must contain a proposed strategic enforcement plan identifying:

1. Key sectors of concern within each agency’s jurisdiction;
2. The most egregious and discriminatory DEI practitioners in each sector of concern;
3. A plan of specific steps or measures to deter DEI programs or principles (whether specifically denominated “DEI” or otherwise) that constitute illegal discrimination or preferences. As a part of this plan, each agency shall 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;
4. Other strategies to encourage the private sector to end illegal DEI discrimination and preferences and comply with all Federal civil-rights laws;
5. Litigation that would be potentially appropriate for Federal lawsuits, intervention, or statements of interest; and
6. Potential regulatory action and sub-regulatory guidance.

The Termination Provision:

Section 2(b)(i) of Executive Order 14151 requires each federal agency, department or commission head, in consultation with the Attorney General, the Director of OMB and the Director of OPM, as appropriate, to “terminate, to the maximum extent allowed by law, all DEI, DEIA, and “environmental justice” offices and positions (including but not limited to “Chief Diversity Officer” positions); all “equity action plans,” “equity” actions, initiatives, or programs, “equity-related” grants or contracts; and all DEI or DEIA performance requirements for employees, contractors, or grantees.”

The Court’s Ruling:

In National Association Of Diversity Officers In Higher Education, et al., v. Donald J. Trump et al., Case No. 1:25-cv-00333-ABA (D. Md. 2025), the plaintiffs challenged each of these provisions as unconstitutional on several grounds, including a violation of the spending clause, the separation of powers and the First and Fifth Amendments of the U.S. Constitution.

In his 63-page memorandum opinion, Judge Adam B. Abelson found the plaintiffs were likely to prevail in their challenge to these provisions as a violation of their First Amendment rights to free speech and their Fifth Amendment rights to due process.

Specifically, the court found the language used in the Certification requirement, as well as phrases used throughout the challenged provisions, such as “illegal DEI,” “DEI programs or principles,” and “equity-related grants and contracts” were unconstitutionally vague in violation of the Fifth Amendment and restricting DEI programs and principles infringed upon protected free speech under the First Amendment. The court highlighted the fact that the government would not – and at times, could not – fully explain the meaning of unlawful DEI or define what constitutes unlawful DEI programs, noting in its opinion that “even the government does not know what constitutes DEI-related speech that violates federal anti-discrimination laws.” Op. at 47.

The court also found the Trump Administration impermissibly sought to use the threat of investigations and enforcement, as well as government funding, to regulate free speech in violation of the First Amendment. Quoting the U.S. Supreme Court decision in Sorrell v. IMS Health Inc., 564 U.S. 552 (2011), Judge Abelson wrote, “The State may not burden the speech of others in order to tilt public debate in a preferred direction.” Op. at p. 32, quoting Sorrell, 564 U.S. at 578-79.

However, the court also said the plaintiffs did not challenge the EOs in their entirety and that the EOs permitted provisions found unlawful to be severable. Thus, while the challenged provisions are now blocked from being implemented, we can assume the Trump Administration will continue to enforce the remaining provisions, even if they are mainly administrative in nature.

Next Steps:

The Trump Administration likely will appeal the court’s temporary injunction, so this may not be settled for some time to come. For now, it’s important to know that the anti-DEI certification that the Trump Administration wanted inserted into federal contracts should be halted at this point, and that the termination of “equity-related” grants and contracts should be suspended at least, all of which potentially may become permanent or reversed depending on the final outcome of the case.

Note, too, that other White House directives, such as the revocation of EO 11246, remain unaffected by the court’s decision. Thus, before taking definitive action, federal contractors as well as private sector employers should continue to review their personnel policies and programs with legal counsel to help them navigate what is becoming an increasingly gray area of the law.