Federal Appeals Court permits enforcement of DEI Executive Orders

The Fourth Circuit Court of Appeals has stayed the Maryland District Court’s preliminary injunction order enjoining the federal government from enforcing certain provisions of President Donald Trump’s January 20, 2025 Executive Orders 14151, “Ending Radical and Wasteful Government DEI Programs and Preferencing,” and 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (collectively, EOs).

The appellate ruling, made on March 15, 2025, clears the way for enforcement of the diversity, equity, and inclusion (DEI) EOs, which is already under way, with multiple agencies announcing investigations into private employers for discrimination in their diversity policies, practices, and programs. See our alert, Enforcement of President Trump’s DEI Executive Order: A strategic roadmap for companies targeted for investigation and enforcement.

The Fourth Circuit stays the District Court’s preliminary injunction

As we shared in our prior alert, the National Association of Diversity Officers in Higher Education and other plaintiffs commenced the first known lawsuit challenging the DEI EOs against President Trump and certain departments and agencies. The Maryland District Court found that the plaintiffs had shown a likelihood of success on the merits of their claims that the EOs are unconstitutionally vague and violate First Amendment free speech rights, and issued an injunction prohibiting the government (excluding the President) from:

• Pausing, modifying, impeding, or terminating any federal awards, contracts, and obligations


• Requiring federal contractors or grantees to certify that they do not operate any “illegal DEI,” and


• Bringing any enforcement action, including under the False Claims Act.

The Fourth Circuit, in a unanimous opinion by a panel comprised of Chief Judge Albert Diaz, Judge Pamela Harris, and Judge Allison Jones Rushing, granted the government’s motion for a stay of the preliminary injunction until the government’s appeal is decided. All three judges concurred that the government satisfied its burden to show a likelihood of success on the merits.

In her concurring opinion, which was joined by Chief Judge Diaz, Judge Harris reasoned that the injunction should be stayed because:

• The EOs “are of distinctly limited scope”


• The EOs “do not purport to establish the illegality of all efforts to advance diversity, equity, or inclusion”


• The certification and enforcement provisions of EO 14173 “apply only to conduct that violates existing federal anti-discrimination law,” and


• The EOs do not “authorize the termination of grants based on a grantee’s speech or activities outside the scope of the funded activities.”

While Judge Harris appeared to express that the EOs are likely constitutional, she left open the possibility for challenges to how they are enforced, stating:

What the Orders say on their face and how they are enforced are two different things. Agency enforcement actions that go beyond the Orders’ narrow scope may well raise serious First Amendment and Due Process concerns.

Judge Harris made it clear that her “vote should not be understood as agreement with the [EOs’] attack on efforts to promote diversity, equity, and inclusion.” Although she and Chief Judge Diaz concurred that the injunction should be stayed, they both expressed views favoring DEI principles. Chief Judge Diaz wrote that “people of good faith who work to promote diversity, equity, and inclusion deserve praise, not opprobrium.” He further noted that, under “the First Amendment, there should be room for open discussion and principled debate about DEI programs,” and that “all Americans should be able to freely consider how to continue empowering historically disadvantaged groups.”

Judge Rushing, in her concurring opinion, noted:

• The plaintiffs’ “case does not challenge any particular agency action implementing the Executive Orders,” which “highlights serious questions about the ripeness of th[e] lawsuit and plaintiffs’ standing to bring it as an initial matter.”


• “Any individual judge’s view on whether certain Executive action is good policy” is “irrelevant to fulfilling [the courts’] duty to adjudicate cases and controversies according to the law” and that a “judge’s opinion that DEI programs ‘deserve praise, not opprobrium’ should play absolutely no part in deciding th[e] case.’”

The Fourth Circuit indicated it would set an expedited briefing schedule on the government’s appeal.

Key takeaways

Since the injunction has been paused, the government can use the EOs to:

• Terminate equity-related grants or contracts, as well as all DEI performance requirements for government employees, federal contractors, or recipients of federal grants


• Require federal contractors and grantees to certify that they do not operate any “illegal DEI” that violates federal antidiscrimination laws


• Pursue enforcement actions, including bringing False Claims Act claims against companies in violation of the EO, and


• Investigate companies for “illegal DEI” policies and practices. Investigations were not enjoined by the Maryland District Court’s injunction order.

We will continue to monitor developments. In the meantime, for more information about the DEI EOs and their implications, please contact any of the authors or your DLA Piper relationship attorney and ask about our toolkit, Assessing risk under President Trump’s DEI Executive Order: A strategic roadmap for private employers and federal contractors.

For more information on President Trump’s EOs and other federal developments, see our President Trump Executive Orders topic hub.