In the latest development in the new administration’s efforts to dismantle diversity, equity and inclusion (DEI) programs, a Federal judge on Friday, February 21, 2025, granted a motion for preliminary injunction halting several provisions of two recent executive orders. Those bringing the lawsuit describe DEI as “foundational to the nation’s promise of equality for all.” This article takes a closer look at the lawsuit and what it could mean for DEI programs.

What are DEI programs?

DEI programs are structured initiatives implemented by many different organizations to accomplish different goals, such as promoting the full participation of all peoples, particularly those that have been disenfranchised, diversifying the workforce, promoting equitable access to opportunities, and fostering inclusive environments.

DEI programs hold the promise of helping reduce health disparities by recognizing, and focusing attention and resources on some communities, often linked by socioeconomic status, race, ethnicity, gender, sexual orientation, and disability.

What are executive orders?

At the federal level, an executive order is a signed, written, and published directive from the President of the United States that manages operations of the federal government. Executive orders must be issued pursuant to one of the President’s sources of power: either an act of Congress or the Constitution itself.

Courts may review the legality of executive orders. In perhaps the best-known instance, the Supreme Court of the United States, in Youngstown Sheet & Tube Co. v. Sawyer, held an executive order directing the Secretary of Commerce to seize steel plants involved in a labor dispute exceeded the constitutional power of the president and was invalid.

Who is bringing the current lawsuit and what do they seek?

The plaintiffs (those bringing the lawsuit) are the National Association of Diversity Officers in Higher Education, American Association of University Professors, and Mayor and City Council of Baltimore, Maryland. These plaintiffs argue they have been deeply impacted by the executive orders.

Defendants are the President, and Departments of Health and Human Services, Education, Labor, Interior, and other federal executive agencies and their respective agency leaders.

The plaintiffs filed a complaint on February 3, 2025, in a federal District Court in Maryland, claiming that two executive orders —both targeting DEI initiatives—violate the First Amendment (free speech), the Fifth Amendment (due process vagueness), and separation of powers. The complaint seeks a ruling finding the executive orders to be unlawful and halting enforcement of the orders (an injunction).

Which executive orders are involved?

Two of the new administration’s executive orders are at issue in the lawsuit:

• Executive Order 14151, Ending Radical and Wasteful Government DEI Programs and Preferencing, issued January 20, 2025, and referred to as the “J20 Order;” and
• Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, issued January 21, 2025, and referred to as the “J21 Order.”

The J20 Order calls on the Director of the Office of Management and Budget (OMB), Attorney General (AG) and Director of the Office of Personnel Management (OPM) to “coordinate the termination of… illegal DEI and ‘diversity, equity, inclusion, and accessibility’ (DEIA) mandates, policies, programs, preferences, and activities in the Federal Government.” It further calls on each executive agency to terminate “equity actions,” and “equity-related grants or contracts.”

The J21 Order similarly requires executive departments to “terminate all discriminatory and illegal preferences” and “to combat illegal private-sector DEI… programs.” The order requires the inclusion in every agency contract or grant award a provision requiring the counterparty or grantee “to certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.” The order also requires agencies to “deter” DEI programs, including by “identify[ing] up to nine potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, State and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars.”

What did the court rule?

The court’s opinion addresses three provisions contained among the two executive orders:

• J20 Order’s Termination provision (terminating “equity-related” grants);
• J21 Order’s Certification provision (requiring contracting parties and grantees to certify, among other things, that they do not operate DEI programs); and
• J21 Order’s Enforcement Threat provision (requiring an AG report containing recommendations to end private sector DEI programs, including identifying up to nine civil compliance investigations).

The court held the plaintiffs were likely to succeed in showing that the Termination and Enforcement Threat provisions are unconstitutionally vague, and that the Certification and Enforcement Threat provisions unconstitutionally impinge on freedom of speech. The court ordered that the defendants other than the president may not:

• pause, freeze, impede, block, cancel, or terminate any awards, contracts or obligations (“Current Obligations”), or change the terms of any Current Obligation, on the basis of the Termination Provision;
• require any grantee or contractor to make any “certification” or other representation pursuant to the Certification Provision; or
• bring any False Claims Act enforcement action, or other enforcement action, pursuant to the Enforcement Threat Provision, including but not limited to any False Claims Act enforcement action premised on any certification made pursuant to the Certification Provision.

Analysis

The outcome of the plaintiff’s lawsuit, and the ultimate fate of the executive orders and impacted DEI programs, are far from certain. A preliminary injunction is sought at the outset of a case, typically to maintain the status quo, while the case is adjudicated. Thus, although the plaintiffs were successful on part of their motion for temporary relief, whether they will obtain a permanent injunction at the end of their case is yet to be seen.

Meanwhile, on February 24, 2025 , the new administration filed a notice of appeal in the Fourth Circuit Court of Appeals challenging the ruling. At the same time, at least three additional legal challenges to the DEI orders have been filed in U.S. District Courts by (1) National Urban League, National Fair Housing Alliance and AIDS Foundation of Chicago in the District of Columbia  (February 19, 2025); (2) San Francisco AIDS Foundation and others in the Northern District of California (February 20, 2025); and (3) Chicago Women in Trades in the Northern District of Illinois (February 26, 2025).

Were the executive orders to survive these legal challenges, their impact could be profound. The court’s opinion in the current case noted that twenty percent of the U.S. labor force works for a federal contractor. Thus, restrictions in government contracts around DEI and the threat of enforcement actions could have a hugely detrimental and chilling effect on efforts to achieve DEI.

What’s more, the administration appears to be using the term “DEI” very broadly to target far more than what would normally be considered, for example, a workplace diversity, equity, and inclusion program. The J20 order calls broadly for termination of “equity actions,” and “equity-related grants or contracts” within the federal government—not DEI programs, and without defining “equity actions” or “equity-related grants and contracts.” Further, it targets initiatives that “advance DEI” but does not define what it means to advance DEI, nor even define DEI.

Conclusion

Of at least four cases challenging the new administration’s DEI executive orders, one has now obtained a preliminary injunction halting enforcement of several provisions in two of the DEI orders. The court found the plaintiffs are likely to succeed in their claims that these provisions are unconstitutionally vague and abridge freedom of speech. The ultimate fate of the executive orders, and the future of impacted DEI initiatives, is uncertain, as the court has yet to rule on the merits of the case. What is certain, however, is that the Administration’s efforts to dismantle DEI programs face major opposition and legal challenges.

This article was written by Stephen Murphy, J.D., Director, Network for Public Health Law—Mid-States Region.

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