On February 21, a Maryland federal district court entered a national preliminary injunction of key aspects for two diversity, equity, and inclusion (“DEI”) executive orders (EOs) issued by President Trump:
- Executive Order 14151, Ending Radical and Wasteful Government DEI Programs and Preferencing
- Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity
The suit, filed by Democracy Forward on behalf of the National Association of Diversity Officers in Higher Education (NADOHE), the American Association of University Professors (AAUP) and two other plaintiffs, disputes the constitutionality of the EOs. While the orders refer to “illegal DEI”, many of the federal programs targeted by the EOs are actually required by statute. This has put federal agencies, academic and health institutions, and federal contractors in the impossible position of trying to reconcile the presidential EOs with the congressionally directed guidance and legislation. As a result of this confusion, compliance varies broadly. The administration has threatened to withhold federal funds from institutions failing to eliminate DEI initiatives and programming, applying additional pressure on institutions to comply.
The complaint alleges that the EOs also violate the First and Fifth Amendments in light of President Trump “usurp[ing] Congress’s exclusive power of the purse” in enacting these provisions, and attempting to “silence those who disagree with him by threatening them with the loss of federal funds and other enforcement actions.”
The “Preliminary Injunction” Order held that the administration shall not:
(1) pause, freeze, impede, block, cancel, or terminate any awards, contracts or obligations, or change the terms of any such award, contract or obligation, on the basis of the Termination Provision;
(2) require the requested certifications in the Certification Provision; or
(3) bring any False Claims Act enforcement action, or other enforcement action, pursuant to the Enforcement Threat Provision.
The parties still need to litigate their claims in district court. In the meantime, FABBS invites any members who have experienced any interruptions to funding related to these EOs to let us know (info@fabbs.org) and to alert your institution. In addition, stay informed of any updates and, most importantly, ask questions before accepting funding decisions that may be premature or the result of overcompliance as we await final court rulings.
