Fourth Circuit Vacates Preliminary Injunction Against Trump DEI EOs

Takeaways

• The Fourth Circuit vacated a 2025 preliminary injunction that had blocked parts of EOs 14173 and 14151. The decision permits the government to enforce the portions of the EOs that the district court previously enjoined in February 2025, specifically the Termination and Certification Provisions.
• The court held the plaintiffs were unlikely to succeed on the merits because they brought only facial challenges.
• Although the court lifted the injunction, leaving the EOs intact, it made clear that future lawsuits could be filed if the government implements the EOs improperly, and other challenges to the EOs remain pending in other federal courts.

Related links

• Federal Court Blocks Provisions of Trump Administration’s ‘Illegal DEI’ Executive Orders
• DEI Injunction Stands: Court Denies Trump Administration’s Motion to Stay
• Court Clarifies: DEI Injunction Applies Across Government
• DEI Injunction Falls, For Now: 4th Circuit Allows Trump Administration Agencies to Enforce EOs
• Executive Order 14151: “Ending Radical and Wasteful Government DEI Programs and Preferencing”
• Executive Order 14173: “Ending Illegal Discrimination and Restoring Merit-Based Opportunity”
• National Ass’n of Diversity Officers in Higher Education, et al. v. Trump, et al.

Article

A three-judge panel of the U.S. Court of Appeals for the Fourth Circuit vacated a district court’s preliminary injunction against portions of two of President Donald Trump’s executive orders (EOs) about diversity, equity, and inclusion (DEI): EO 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” and EO 14151, “Ending Radical and Wasteful Government DEI Programs and Preferencing.” National Ass’n of Diversity Officers in Higher Education, et al. v. Trump, et al., No. 25-1189 (Feb. 6, 2026).

The lawsuit challenged three provisions of two EOs: (1) the “Termination Provision” of EO 14151, which directed federal agencies to terminate “to the maximum extent allowed by law” all DEI performance requirements for contractors and grantees; (2) the “Certification Provision”; and (3) “Enforcement Threat Provision” of EO 14173, which, respectively, directed federal agencies to require contractors and grantees to certify compliance with federal anti-discrimination laws, among other things.

On Feb. 21, 2025, the U.S. District Court for Maryland issued a preliminary injunction against enforcement of the three provisions at issue. On March 14, 2025, the Fourth Circuit stayed enforcement of the preliminary injunction pending appeal, permitting the government to implement the three provisions.

On Feb. 6, 2026, the three-judge panel of the Fourth Circuit vacated the injunction, leaving the EOs intact.

Standing

The court held the plaintiffs had standing to challenge the Termination and Certification provisions, but they did not have standing to challenge the Enforcement Threat provision, because that provision focused only on internal government processes and reporting.

Likelihood of Success on the Merits

The court held the plaintiffs were unlikely to succeed on the merits of the claims, stressing that the plaintiffs brought facial challenges only.

For support, the court cited U.S. Supreme Court decisions and other court precedents that disfavored facial challenges, because courts should focus on the facts of individual cases, not anticipate questions of constitutional law.

Termination Provision

The Termination Provision meets the due process requirement for fair notice and absence of arbitrary enforcement action, the Fourth Circuit held, because it “doesn’t terminate any contracts, nor does it directly regulate non-governmental conduct” and directs subordinates to act only “to the maximum extent allowed by law.” Thus, the court determined that a facial challenge is unlikely to succeed. The court noted that the plaintiffs could later bring as-applied challenges if the government’s enforcement of the provisions misapplies the law.

Certification Provision

The court noted the government’s representation that the provision’s mandate merely requires certification of compliance with existing legal obligations. The plaintiffs argued the provision impermissibly restricted their rights to engage in protected speech. The court pointed out, however, that there is no constitutional right to operate DEI programs that violate federal nondiscrimination law. Again, the court noted that if the government “misinterprets” federal nondiscrimination law, the plaintiffs could challenge that action.

Judge Diaz’s Concurrence

Judge Albert Diaz issued a concurrence to his own majority opinion to emphasize that the decision was narrowly based on the fact that these were facial challenges only. He noted the government’s representation at oral argument, “that there is ‘absolutely’ DEI activity that falls comfortably within the confines of the law,” but expressed his skepticism of the government’s intentions, stating that the evidence cited by the plaintiffs, amici, and the district court “suggests a more sinister story: important programs terminated by keyword; valuable grants gutted in the dark; worthy efforts to uplift and empower denigrated in social media posts.” Judge Diaz’s concurrence concludes: “For those disappointed by the outcome, I say this: Follow the law. Continue your critical work. Keep the faith. And depend on the Constitution, which remains a beacon amid the tumult.”

* * *

The Fourth Circuit vacated the preliminary injunction and remanded the case to the district court.

Other challenges to the EOs remain pending, including:

• Chicago Women in Trades v. Trump – District court nationwide injunction against EO 14173 Certification Provision is on appeal to the Seventh Circuit.
   
• San Francisco AIDS Foundation v. Trump – Appeal to the Ninth Circuit of a preliminary injunction against portions of the EOs temporarily stayed pending a U.S. Supreme Court ruling on the constitutionality of the limitations on participation in sports based on sex in another case.
   
• National Urban League v. Trump – The District Court for the District of Columbia declined to enjoin the EOs because the plaintiffs failed to show they would likely succeed on the merits. The government’s subsequent motion to dismiss is pending.
   
• King County v. Turner – The district court’s preliminary injunction against the Trump Administration grant conditions is on appeal to the Ninth Circuit.
   
• Seattle v. Trump – The district court’s preliminary injunction against EO 14173 is on appeal to the Ninth Circuit, which stayed the case pending a decision in King County v. Turner.

The EOs remain in place, and the Equal Employment Opportunity Commission, Department of Justice, and other federal agencies continue to carry out their mandate. Employers should evaluate their equal employment opportunity and DEI practices to ensure compliance with applicable law.

Jackson Lewis attorneys are closely watching developments in this area and can answer your questions.