Appeals Court Allows Trump To Reinstate Two Executive Orders Targeting Dei

A federal appeals court has given President Donald Trump’s administration the go-ahead to enforce a pair of controversial executive orders that seek to root out diversity, equity and inclusion efforts at federal agencies and government contractors.

The three-member appeals panel — including two judges appointed by Democratic presidents — lifted a lower court’s injunction that had put the policy on hold last month.

The ruling Friday from the panel of the Richmond, Virginia-based 4th Circuit Court of Appeals is not a final decision on the legality of Trump’s anti-DEI policy. It merely allows the government to administer the policy while litigation continues.

In separate opinions explaining their votes, the three judges suggested the Trump administration should be allowed to demonstrate that it will abide by anti-discrimination laws and respect First Amendment rights as it implements the executive orders, which Trump issued on the first two days of his new term.

One of the executive orders directs federal agencies to abolish all DEI programs within the federal government. The other order requires recipients of federal grants and contracts to certify that they do not operate unlawful DEI programs, and it directs federal officials to “encourage” the private sector to end DEI.

“The challenged Executive Orders, on their face, are of distinctly limited scope,” wrote Judge Pamela Harris, an appointee of President Joe Biden. “The Executive Orders do not purport to establish the illegality of all efforts to advance diversity, equity or inclusion, and they should not be so understood.”

Harris said the provisions requiring certifications from federal contractors and grantees only require pledges not to violate existing federal anti-discrimination law. And she said the presidential orders don’t appear to present a direct threat to First Amendment rights because they “do not authorize the termination of grants based on a grantee’s speech or activities outside the scope of the funded activities.”

But Harris offered a caveat that the orders could violate the Constitution if federal officials enforce them too vigorously. “Agency enforcement actions that go beyond the Orders’ narrow scope may well raise serious First Amendment and Due Process concerns,” the judge added.

Chief Judge Albert Diaz, an appointee of President Barack Obama, said he agreed with Harris’ analysis of why a block on the president’s orders was premature. He, too, warned that aggressive implementation might violate free speech or other rights.

“I too reserve judgment on how the administration enforces these executive orders,” Diaz wrote. “It’s unclear what types of programs — formal or informal — the administration seeks to eliminate,” he continued, noting that certain steps agencies might take could create concerns about whether the orders are so vague that people don’t know how to comply with them.

But Diaz also mounted a robust defense of pro-diversity efforts, arguing they are valuable and typically well-intentioned.

“Despite the vitriol now being heaped on DEI, people of good faith who work to promote diversity, equity, and inclusion deserve praise, not opprobrium,” the judge wrote. “When this country embraces true diversity, it acknowledges and respects the social identity of its people. When it fosters true equity, it opens opportunities and ensures a level playing field for all. And when its policies are truly inclusive, it creates an environment and culture where everyone is respected and valued. What could be more American than that?”

Diaz also warned against some anti-DEI efforts that seem intent on erasing the sins in America’s history. “A country does itself no favors by scrubbing the shameful moments of its past,” he wrote.

The sole Trump appointee on the panel, Judge Allison Rushing, pushed back at her colleagues’ defenses of DEI, bluntly asserting that they were stepping outside the proper role for judges.

“Any individual judge’s view on whether certain Executive action is good policy is not only irrelevant to fulfilling our duty to adjudicate cases and controversies according to the law, it is an impermissible consideration,” Rushing wrote. “A judge’s opinion that DEI programs ‘deserve praise, not opprobrium’ should play absolutely no part in deciding this case.”

In a ruling last month, U.S. District Judge Adam Abelson halted key provisions of the Trump orders, saying they were likely to result in “arbitrary and discriminatory enforcement.” Abelson, a Baltimore-based appointee of President Joe Biden, said the policies could be expected to chill the speech of government contractors who want to pursue diversity goals but fear running afoul of Trump’s edicts.

The suit that led to Abelson’s injunction was filed by the legal group Democracy Forward on behalf of the National Association of Diversity Officers in Higher Education, the American Association of University Professors, Restaurant Opportunities Centers United, and the City of Baltimore.

Several other lawsuits are pending in courts across the country challenging the same Trump orders targeting DEI.