Fourth Circuit Reopens Trump DEI-Related Executive Orders, Halts Preliminary Injunction

Quick Hits

• A panel for the Fourth Circuit granted the government’s request to stay a nationwide preliminary injunction that had blocked three key provisions of President Donald Trump’s DEI-related EOs.
• The ruling comes after the federal judge in Maryland who issued the preliminary injunction had raised concerns over reports that federal agencies were potentially violating the ruling.

A three-judge panel for the Fourth Circuit ruled that the government had met its burden to stay, pending appeal, the nationwide preliminary injunction enjoining the termination, certification, and enforcement provisions of President Donald Trump’s DEI-related orders, EO 14151 and EO 14173. But in doing so, all three judges on the Fourth Circuit panel issued separate concurring opinions.

The ruling reverses U.S. District Judge Adam B. Abelson, who, on March 3, 2025, refused to stay the preliminary injunction. Judge Abelson issued the preliminary injunction on February 21, 2025, finding the plaintiffs were likely to succeed on the merits that the EOs are vague and chill free speech in violation of the First and Fifth Amendments.

While agreeing that a stay was appropriate, Fourth Circuit Chief Judge Albert Diaz, in his concurring opinion, questioned the criticism of DEI and the “people of good faith who work to promote diversity, equity, and inclusion.”

“Under the most basic tenets of the First Amendment, there should be room for open discussion and principled debate about DEI programs, and whether its corresponding values should guide admissions, hiring, scholarship, funding, or workplace and educational practices,” Chief Judge Diaz wrote. “And all Americans should be able to freely consider how to continue empowering historically disadvantaged groups while not reducing the individuals within those groups to an assigned racial or sex-based identity.” (Internal quotations omitted.)

On the other hand, Judge Pamela A. Harris wrote, “[w]hat the Orders say on their face and how they are enforced are two different things,” noting that the lawsuit “may well raise serious First Amendment and Due Process concerns” but that it “does not directly challenge” a specific agency action.

Similarly, Judge Allison Jones Rushing criticized the scope of the injunction, which she characterized as enjoining “nondefendants from taking action against nonplaintiffs” and the ripeness of the lawsuit because it “does not challenge any particular agency action implementing the Executive Orders.” (Emphasis in original.)

The Fourth Circuit’s stay comes just hours after Judge Abelson held a status conference to consider the plaintiffs’ emergency motion regarding reports that federal agencies refused to comply with the preliminary injunction.

The plaintiffs presented evidence that one of the plaintiffs, the City of Baltimore, was facing a deadline to sign a recent funding contract from the U.S. Department of Housing and Urban Development (HUD) containing language requiring the city to certify that it does not operate any DEI programs that violate any applicable antidiscrimination laws. The plaintiffs alleged that until the City of Baltimore signs the contract, it cannot recoup from HUD the costs it has already expended for providing services to people without permanent housing.

While Judge Abelson found the government’s representation that it would remedy the provision sufficient for the time being, the judge said he would order an expedited briefing on the matter and called the reports of noncompliance “concerning.” However, that briefing now appears moot as the Fourth Circuit has stayed the preliminary injunction. At this time, it is unclear how Judge Abelson will respond.

On March 10, 2025,  Judge Abelson clarified that the preliminary injunction applied to all the named defendants beyond the president, including the “other federal executive branch agencies, departments, and commissions, and their heads, officers, agents, and subdivisions directed pursuant to” the executive orders.

This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ New Administration Resource Hub.

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

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