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Dive Brief:
- The Trump administration scored a legal victory on Friday when the 4th U.S. Circuit Court of Appeals vacated a preliminary injunction against two executive orders aimed at eliminating diversity, equity and inclusion practices in higher education and elsewhere.
- Several groups — including the American Association of University Professors and the National Association of Diversity Officers in Higher Education — had sought the preliminary injunction, arguing that key provisions of the orders were unconstitutionally vague and would chill protected speech.
- However, the 4th Circuit said the groups didn’t have standing to sue over one of the contested provisions and weren’t likely to succeed on the merits of their remaining claims, and it remanded the case to the lower court. Friday’s ruling comes after the same three-judge panel unanimously decided to pause the preliminary injunction last March while the case was under review.
Dive Insight:
Trump issued two major anti-DEI mandates in the first two days of his second term. Since then, the federal government has fiercely attacked DEI initiatives in higher education, including by canceling vast numbers of grants for diversity-related research and threatening to pull federal funding from colleges over such efforts.
The ruling could be a boon to those efforts. Democracy Forward, which is representing the plaintiffs, did not respond to a request for comment Tuesday.
In the first contested order, Trump directed federal agencies to eliminate any “equity-related” grants or contracts “to the maximum extent allowed by law.”
Under the second order, Trump told agency leaders to include in federal contracts a provision requiring recipients to certify that they don’t “operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.”
That order also directed U.S. Attorney General Pamela Bondi to craft a report recommending measures to curb DEI practices and for each agency to identify up to nine investigations of higher education institutions with endowments worth more than $1 billion, publicly traded corporations, large nonprofits or associations, or foundations with ample assets.
The plaintiffs sued over those orders last year, arguing they were unconstitutionally vague, including by not defining key terms, such as “illegal DEI.”
They also argued that the specter of a looming civil rights investigation forced colleges to choose between continuing their “lawful diversity, equity, inclusion, and accessibility programs” or suppressing their own speech by ending initiatives the Trump administration may deem unlawful.
A federal district judge blocked the provisions last February, but the 4th Circuit temporarily lifted that ruling the next month after the Trump administration appealed.
In Friday’s ruling, the appellate panel said the groups lacked standing to sue over the provision that ordered Bondi to create the report with recommendations for curbing DEI practices. During oral arguments, U.S. Department of Justice officials said the report had already been submitted to Trump in June.
“It’s unclear how an injunction could redress any plausible harm stemming from a report issued months ago,” Judge Albert Diaz, an Obama appointee, wrote in the opinion.
For the other two provisions, the panel wasn’t swayed by the groups’ arguments. Diaz wrote that Trump can direct agencies to make funding decisions based on his policy priorities and that the provision targeting equity-related grants wasn’t unconstitutionally vague.
“President Trump has decided that equity isn’t a priority in his administration and so has directed his subordinates to terminate funding that supports equity-related projects to the maximum extent allowed by law,” Diaz wrote. “Whether that’s sound policy or not isn’t our call.”
Diaz acknowledged arguments from the plaintiffs that their grants had been terminated in an “arbitrary and discriminatory” manner due to the executive order. But he wrote that they would have to sue the agencies directly over those cancellations.
“If government actors have terminated grants or contracts ‘without regard to their legality,’” Diaz wrote, “then plaintiffs can sue those actors for terminating those contracts.”
Similarly, Diaz said the plaintiffs’ First Amendment arguments weren’t likely to succeed because the certification requirement only required federal funding recipients to say their DEI programs do not violate antidiscrimination laws.
“Plaintiffs suggest that defendants view all DEI programs as illegal under existing antidiscrimination law,” Diaz wrote. “Perhaps, but the Certification Provision doesn’t say that.”
However, Diaz said the groups can challenge specific enforcement actions that stem from the executive order’s provision if the Trump administration “misinterprets federal antidiscrimination law.”
