Fourth Circuit Allows Administration to Implement Anti-DEI Orders Pending Appeal

On March 14, 2025, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit granted the Trump Administration’s motion to stay enforcement of a district court’s preliminary injunction against three aspects of President Trump’s executive orders (EOs) banning “illegal” diversity, equity, and inclusion (DEI) preferences and programs.

Key points of the ruling:

1. The stay allows the Trump Administration to resume implementation of certain challenged aspects of EOs 14151 and 14173, i.e., the termination of equity-related grants or contracts, the ability to require certifications from government contractors that they do not operate programs promoting “illegal DEI” and to develop plans for enforcing the provisions related to “illegal DEI.”
2. The panel’s order did not provide a detailed explanation for how the administration had made a “strong showing that it is likely to succeed on the merits” in order to justify the stay. To the contrary two of the concurring opinions made it clear they had reserved judgment on the merits until the court received additional briefing and further proceedings could be held.
3. Each of the three judges issued concurring opinions with notable remarks:

• Chief Judge Albert Diaz acknowledged the lack of a definition of illegal DEI leaves an unclear scope of programs targeted for elimination and potential Fifth Amendment vagueness concerns, and suggested that the First Amendment should “provide room of open discussion and principled debate about DEI programs,” as well as to “freely consider how to continue empowering historically disadvantageous groups, while not reducing individuals within those groups “to an assigned racial [or sex-based] identity.”
• Judge Pamela Harris cautioned that “what the Orders say on their face and how they will be enforced are two different things,” and that agency actions beyond the Orders’ narrow scope may raise serious First Amendment and Due Process concerns. She also noted that she agreed with Judge Diaz that “people of good faith who work to promote diversity, equity and inclusion deserve praise, not opprobrium.”
• Judge Allison Rushing questioned the scope of the nationwide injunction that seeks to enjoin all federal agencies, even those not named as parties, and expressed his view that the government was likely to succeed in demonstrating that the challenged provisions of the EO do not violate the constitution. He further questioned the case’s ripeness and the plaintiffs’ standing absent any action to implement the provisions in question and argued that a judge’s opinion that “DEI  programs ‘deserve praise not opprobrium’ should play absolutely no role in deciding the case.”

4. The stay of the injunction will remain in place pending further legal briefs are submitted by the parties and further legal proceedings are conducted by the 4^th Circuit Court of Appeals.

Implications for employers and federal contractors:

1. Employers should continue to conduct privileged assessments of their employment practices and in particular any DEI-related programs, preferences and initiatives.
2. Federal contractors should anticipate potential agency requests for certification on new contracts or grants issued on or after April 21, 2025, regarding compliance with federal anti-discrimination laws. As a reminder, affirmative action plans based on race, color, sex, sexual preference, national origin or ethnicity are no longer authorized under federal law as EO 11246 has been revoked, and the 4^th Circuit’s ruling does not alter this change in the law.  Likewise, any programs or initiatives provide employment-related preferences based on race, color, sex, sexual preference, nation origin or ethnicity will be subject to close scrutiny under federal anti-discrimination laws.
3. The situation remains fluid and in-house attorneys will need to continue to closely monitoring developments in this area.

This ruling represents a significant development in the ongoing legal battle over President Trump’s executive orders targeting DEI programs in the federal government and beyond. The case highlights the complex interplay between executive power, civil rights laws, and constitutional concerns surrounding DEI initiatives.

Gentry Locke attorneys are actively monitoring developments and are ready to assist. Contact us today.

Photo from Dolores M. Harvey/Shutterstock.