03-04-2025
Shortly after taking office, the President issued two executive orders directed at “illegal DEI” in government and with private employers. The orders authorized the attorney general’s office to review the public and private sectors to end perceived illegal discrimination and preferences. Federal agencies took steps to comply, notifying contractors and grantees that they would evaluate and possibly terminate some contracts and grants. The attorney general issued a memo signaling investigations and available enforcement for private companies engaged in DEI.
Federal contractors, federal grantees, and private-sector companies responded and tried to comply with the new policy objectives. The executive orders’ language did not provide precise definitions of what could violate the objectives for equal employment opportunity and DEI initiatives in the private sector. Some perceived the administration’s positions as inconsistent.
The National Association of Diversity Officers in Higher Education and others challenged the constitutionality of the orders in a Maryland district court. They sought a nationwide injunction for certain parts of the orders. The Maryland federal district court agreed with the plaintiffs that some of the orders violated the Constitution. Key findings by the court include the following. Unilateral termination by the President of contracts violated the Spending clause. The phrases “DEIA,” “equity,” and “equity-related” were unconstitutionally vague because they could lead to arbitrary and discriminatory enforcement. The Certification provision required federal contractors and grantees to certify that there was no DEI anywhere in the organization, irrespective of its relation to federal funding. The court found this provision to restrict free speech. Lastly, the executive orders were unconstitutionally vague because they did not provide guidance for contractors to understand how to conform their policies and procedures for compliance. The court stated that the possibilities were “almost endless” for the government to deem something an equity-related activity, and many were “pernicious.” The court also said the government could not rely on using legal sanctions to coerce and suppress disfavored speech.