National Association of Diversity Officers in Higher Education et al. v. Trump et al., No. 1:25-cv-00333 (D. Md. Feb. 21, 2025) The federal district court for the district of Maryland issued a preliminary injunction to temporarily stop the Trump administration from enforcing certain provisions of his executive orders that ban “illegal DEI”. The court ruled that plaintiffs, 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, “easily established” the following three provisions of the EOs banning “illegal DEI” are unconstitutional: (1) directed federal agencies to terminate “equity-related grants or contracts” (“Termination Provision”); (2) directed all executive agencies to “include in every contract or grant award” a certification, enforceable through the False Claims Act, that the contractor and grantee “does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws” (the “Certification Provision”); and (3) directed the attorney general to take appropriate measures to encourage the private sector to end illegal DEI and to identify civil compliance investigations to accomplish said deterrence (“Enforcement Threat Provision”). See the provisions below. NOTE: The orders do have severability clauses that, if these provisions were removed, would not affect the enforceability of the other provisions. The court found that the Plaintiffs “have shown are likely to prove the Termination and Enforcement Threat Provisions are unconstitutionally vague on their face” in violation of the Fifth Amendment’s Due Process Clause. The court also found that the Certification and Enforcement Threat Provisions to be “squarely” and “unconstitutionally” in violation of freedom of speech under the First Amendment. The court reasoned that the challenged orders neither define any of the operative terms, nor identify the types of programs or policies the administration considers illegal. Preliminary injunction applies to non-parties The court goes on to address the issue of whether, in light of the claims and Plaintiffs’ showing of likelihood of success on the merits, including similarly situated non-parties within the scope of an injunction would be appropriate. The court held that the Plaintiffs made that showing. An injunction that extends to non-parties may be particularly “appropriate” where, as here, “the government relies on a ‘categorical policy,’ and when the facts would not require different relief for others similarly situated to the plaintiffs.” Id. (quoting Roe, 947 F.3d at 231). Moreover, “[o]nce a constitutional violation is found, a federal court is required to tailor the scope of the remedy to fit the nature and extent of the constitutional violation.” Hills v. Gautreaux, 425 U.S. 284, 293-94 (1976) (citations and internal quotation marks omitted). “[W]here a law is unconstitutional on its face, and not simply in its application to certain plaintiffs, a nationwide injunction is appropriate.” Cnty. of Santa Clara v. Trump, 250 F. Supp. 3d 497, 539 (N.D. Cal. 2017) (citing Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (“[T]he scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff.”)). Challenged Provisions: EO § 2(b)(i) (in part) (the “Termination Provision”): Each agency, department, or commission head, in consultation with the Attorney General, the Director of OMB, and the Director of OPM, as appropriate, shall take the following actions within sixty days of this order: 1. terminate, to the maximum extent allowed by law, . . . all . . . “equity-related” grants or contracts[.] EO § 3(b)(iv) (the “Certification Provision”): The head of each agency shall include in every contract or grant award: (A) A term requiring the contractual counterparty or grant recipient to agree that its compliance in all respects with all applicable Federal anti-discrimination laws is material to the government’s payment decisions for purposes of section 3729(b)(4) of title 31, United States Code; and (B) A term requiring such counterparty or recipient to certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws. EO § 4(b)(iii) (the “Enforcement Threat Provision”): To further inform and advise me so that my Administration may formulate appropriate and effective civil-rights policy, the Attorney General, within 120 days of this order, in consultation with the heads of relevant agencies and in coordination with the Director of OMB, shall submit a report to the Assistant to the President for Domestic Policy containing recommendations for enforcing Federal civil rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI. The report shall contain a proposed strategic enforcement plan identifying . . . (iii) A plan of specific steps or measures to deter DEI programs or principles (whether specifically denominated ‘DEI’ or otherwise) that constitute illegal discrimination or preferences. As a part of this plan, each agency shall identify up to nine potential civil compliance investigations of publicly traded corporations, large nonprofit 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. 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