Federal Judge Denies Bid to Stay Preliminary Injunction Blocking President Trump’s DEI-Related Executive Orders

Quick Hits

• A federal judge maintained a preliminary injunction blocking key provisions of President Trump’s executive orders aimed at DEI initiatives, finding that the government had failed to show a reason to halt the injunction pending appeal.
• The judge rejected the Trump administration’s argument that the preliminary injunction prevents the executive branch from implementing its policies, noting that such policies must still comply with the United States Constitution, particularly in this case, free speech and due process rights.
• The Trump administration is appealing the preliminary injunction ruling, indicating that the constitutionality of the EOs will continue to be litigated, potentially reaching the Supreme Court of the United States.

U.S. District Judge Adam B. Abelson denied the Trump administration’s motion to stay the preliminary injunction issued on February 21, 2025, in the case brought by a coalition of DEI advocates. The judge found the Trump administration had failed to show a stay was warranted, given the plaintiffs’ likelihood of successfully establishing on the merits that the enjoined parts of the EOs violate free speech and are unconstitutionally vague.

In seeking a stay of the preliminary injunction, the Trump administration argued that it had demonstrated a likelihood of success on the merits and that the plaintiffs had only alleged speculative harms; that the injunction harmed “intra-executive policy implementation by enjoining the President’s policy directives to federal agencies”; and that the preliminary injunction improperly prevented federal agencies from enforcing antidiscrimination laws.

However, Judge Abelson said that he had already considered and rejected the government’s argument regarding its likelihood of success on the merits and that the policy goals of the executive branch must still comply with the Constitution.

“As the Court explained in its memorandum opinion granting the preliminary injunction, the executive branch is obviously entitled to have policy goals and to pursue them,” Judge Abelson said in the decision denying the stay. “But in pursuing those goals it must comply with the Constitution, including, as relevant here, the Free Speech Clause of the First Amendment, and the Due Process Clause of the Fifth Amendment.”

Judge Abelson stated that the blocked provisions of the EOs seek to “punish, or threaten to punish, individuals and institutions based on the content of their speech,” thereby discriminating against viewpoints disfavored by the administration, likely in violation of the First Amendment. Judge Abelson observed that the provisions appear to target “purely private persons” and leverage funding to regulate the speech of “individuals and institutions that happen to contract with (or receive grants from) the federal government.

In addition, Judge Abelson noted, the provisions likely violate the due process clause of the Fifth Amendment because they are so vague that they do not sufficiently explain what is and is not prohibited.

Specifically, the preliminary injunction blocked three provisions of the EOs: (1) a provision that required federal agencies to terminate “equity-related grants or contracts,” (2) a provision that required federal contractors and subcontractors to certify for purposes of False Claims Act (FCA) liability that they do not operate unlawful DEI programs, and (3) a provision directing the attorney general to enforce civil rights laws against DEI programs in the private sector.

The National Association of Diversity Officers in Higher Education, the American Association of University Professors, Restaurant Opportunities Centers United, and the Mayor and City Council of Baltimore—filed the lawsuit on February 3, 2025, challenging EO 14151, “Ending Radical and Wasteful Government DEI Programs and Preferencing,” issued on January 20, 2025, President Trump’s first day in office, and EO 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” issued on January 21, 2025.

Since that lawsuit was filed, at least three more federal court challenges have been filed targeting the EOs and President Trump’s January 20, 2025, EO 14168, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” which outlined the federal government’s new policy to only “recognize two sexes, male and female.” The suits raise similar constitutional claims, contending that the EOs are vague, violate free speech and due process, exceed the executive branch’s authority, and usurp legislative functions.

Next Steps

Judge Abelson’s denial of the Trump administration’s stay motion keeps in place the preliminary injunction blocking parts of the EO 14151 and EO 14173, meaning that entities affected by the orders will continue to have a reprieve, at least in the short term. However, the Trump administration is appealing the preliminary injunction decision, and the case and other challenges to the EOs are likely to be decided in the federal courts of appeal, and, potentially, by the Supreme Court of the United States.

Ogletree Deakins will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion, Employment Law, Governmental Affairs, and OFCCP Compliance, Government Contracting, and Reporting blogs.

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