The Maryland District Court has interrupted the application of several dei disisio

On February 21, 2025, the US District Court for Maryland District issued a preliminary decision that interrupted the application of several provisions of the Executive Orders related to the President Trump on the conclusion of the DEI programs and the radical and wasteful government preference (“eo 14151 ”) and the conclusion of the government Illegal discrimination and restoring the opportunity based on merits (“Eo 14173”).

In particular, the decision prevents the federal government from applying a clause in EO 14173, which would have requested federal contractors and beneficiaries to certify both that: (I) do not operate “illegal” programs; and (ii) materially comply with federal anti-discrimination-dispositions that would have increased the potential The law on false claims (“FCA”) for covered entities.

Background

The applicants, the National Association of Diversity Officers in Higher Education, the American University Teachers’ Association, the united restaurant centers and the mayor and the Baltimore Local Council (collective, “applicants”), are federal contractors and beneficiaries that fund Dei’s research. , offers professional development services to persons from underrepresented environments and carry out other “activities related to Dei ”. On February 3, 2025, the plaintiffs took action against President Trump, Prosecutor General Pam Bondi and various federal agencies and the heads of the agency, supporting the following provisions of EOS 14151 and 14173 represent an imminent threat to the members of the plaintiffs and violate the first amendment. Fifth Amendment and Constitutional Separation of Power Principles:

• “Termination provision” (EO 14151 § 2 (b) (i)), which orders each “head of agency, department or commission” to “cease, to the maximum allowed by law, all subsidies or contracts related to equity “”;
• “Certification provision” (EO 14173 § 3 letter (B) (IV)), which orders each agency to include certifications in each contract or granting that the contractor or beneficiary does not operate dei programs and compliance with the federal anti-discrimination laws It is “material for government payment decisions for the purpose of” FCA; and
• “The disposition regarding the threat in the implementation: (EO 14173 § 4 letter (B) (III)), which orders the Attorney General to present recommendations and a strategic plan of execution to challenge the illegal in the private sector.

The applicants requested a declarative decision that EOS are illegal, as well as a temporary restriction order and/or a preliminary decision, except for the Federal Government to apply EOS.

The opinion and reasoning of the court

District judge Adam B. Abelson issued an ordinance at national level that partially linked EOS, finding that the plaintiffs have shown a successful probability against the background of the premiums and the fifth amendment. The court concluded that the irreparable damage faced by the applicants, including “the large -scale cooling of the protected speech without a doubt”, exceeds the government’s interest in “immediately imposing a new interpretation, but still promulcate to consider the arguments of separation of powers by the applicants, because he found that the applicants have already made a sufficient show under their first modification of the request to grant the order preliminary.

First of all, the Court found that the applicants could have the claim that the provision of certification of EO 14173 violates the first amendment. Given the potential threat of FCA liability and that it covers all The activity of the contractor-not only actions related to funds from federal-aintification “constitutes a content-based restriction on the rights of expression of federal contractors and beneficiaries”. Moreover, the Court found that it concerns the discourse in support of DEI, without imposing “a similar restriction on the principles of anti-dea that can violate the existing anti-discrimination federal laws.” The court explained that “(b), even the government does not know what is a speech related to DEI that violate the federal anti-discrimination”, contractors and federal beneficiaries are “very susceptible. . . Self -censor “to be conforming to the certification provision.

Secondly, the Court found that the applicants would probably affirm that the term “subsidies or contracts related to equity” in the termination provision is unconstitutional vaguely under the fifth amendment, because: (I) it is a term wide, indefinite, which is likely to lead to the arbitrary and discriminatory application between federal agencies and within federal agencies; and (ii) the term does not offer contractors and grantors granting with the notification “EC, if something, can do to bring their subsidies in accordance, so they are not considered” related to their own equity “.

However, the Court refused to interrupt the part of the provision of the threat for application, which guides the general lawyer to create an application plan and to engage in investigations “to discourage programs or principles. . . This is a discrimination or illegal preferences “, which is” only a directive from the president to the Attorney General “and does not involve principles of separation of power.

As a result of this decision, the federal agencies: (i) may not apply the certification disposition while the order is in force; (ii) must interrupt efforts to identify organizations for civil compliance assessments; and (III) must stop the contractual rewrites and contractual changes within the EOS. But any provision of EOS 14151 and 14173 which is not expressly related to the decision remains in force – including the requirement of the Attorney General to develop a plan to discourage the efforts of Dei, which the Department of Justice indicated may involve potential criminal investigations.

Important, the decision does not exclude the private disputes that challenge the use of Dei programs, including the cases brought by potential employees, general lawyers and organizations that have already taken over the management of these actions from the Supreme Court Decision of June 2023 in Students for correct admissions v. Harvard.