Trump administration can enforce anti-DEI orders, appeals court rules

Dive Brief: 

• A federal appeals court ruled Friday that the Trump administration can carry out executive orders for now that target diversity, equity and inclusion efforts at higher education institutions and elsewhere. 
• The 4th U.S. Circuit Court of Appeals’ unanimous decision lifts a lower court’s preliminary injunction that had blocked major portions of two of President Donald Trump’s directives against diversity programs.
• Although the appeals court lifted the injunction, the three-judge panel did not determine the legality of the orders. The decision said the appeals court would set an expedited briefing schedule to consider the case. 

Dive Insight: 

The decision deals a major blow to the American Association of University Professors and the National Association of Diversity Officers in Higher Education, two of the plaintiffs who brought the lawsuit against the Trump administration. They allege that the two orders are unconstitutionally vague and chill speech that Trump opposes — arguments the lower court had said were likely to succeed.

On the first day of his second term, Trump signed an order directing federal agencies to “terminate, to the maximum extent allowed by law” the government’s “equity-related” grants, However, the order doesn’t specify what qualifies as “equity-related.”

The next day, Trump signed an order seeking to end “illegal DEI.” 

It tasked each federal agency with identifying up to nine “potential civil compliance investigations” over DEI programs at corporations, foundations, associations or colleges with endowments over $1 billion. It also requires recipients of grants to certify that they don’t promote any DEI programs that violate federal law. 

But the lawsuit argues that that order did not define key terms, such as “DEI” or “illegal DEI.”

“President Trump’s history and explicit call to dismantle anything connected to [diversity, equity, inclusion and accessibility] presses the question of which ‘programs promoting DEI’ President Trump views as ‘illegal,’” it contends. “If lawful DEI programs are suddenly deemed unlawful by presidential fiat, Plaintiffs must either risk prosecution for making a false claim, or censor promotion of their values.” 

In late February, U.S. District Judge Adam Abelson, a Biden appointee, temporarily blocked those provisions. The Trump administration quickly appealed, arguing the preliminary injunction relied on a “fundamental misreading” of the orders. 

The administration asserted that government policies can only be unconstitutionally vague when they impose requirements on citizens — not when the president directs federal officers, either informally through conversations or through executive orders. It further argued that Trump’s executive orders were largely “instructions to his subordinates” and that each contained provisional language limiting their scope. 

For instance, the administration noted that the order directing agencies to identify potential colleges to investigate specified that this was part of a broader plan to root out DEI programs “that constitute illegal discrimination or preferences.”

“All plaintiffs must do is comply with federal law itself — longstanding federal statutes that are not challenged on vagueness grounds or any other,” the Trump administration wrote in its motion to lift the injunction. “Any lack of clarity when DEI runs afoul of those statutes is not attributable to the Executive Order.”

Although the appeals court granted the administration’s request to lift the injunction, U.S. Circuit Judge Pamela Harris — an Obama appointee — pointed out in her concurring opinion that what the executive orders say and how the Trump administration enforces them “are two different things.” 

“Agency enforcement actions that go beyond the Orders’ scope may well raise serious First Amendment and Due Process concerns,” Harris wrote.