In a major win for the Trump administration, the U.S. Fourth Circuit Court lifted a lower court’s injunction, allowing two executive orders against Diversity, Equity and Inclusion (DEI) programs in government agencies and contractors to proceed, while a lawsuit plays out.
The three-judge panel in Richmond, Virginia put a halt to a nationwide injunction by U.S. District Judge Adam Abelson in Baltimore on March 14 with three separate opinions. (pdf)
President Donald Trump, in one of his first acts after returning to office, directed all federal agencies to terminate all “equity-related” grants or contracts, and then signed a second EO requiring federal contractors to stop promoting DEI policies, sparking lawsuits against the administration across the country.
However, the decision by the appeals court is not the end to the litigation, and merely allows the White House to execute the EO.
The two judges on the 4th Circuit Court panel who were appointed by President Barack Obama, Chief Judge Albert Diaz and Judge Pamela Harris, warned in their opinions that the latest anti-DEI policies raised some concerns about First Amendment rights, but agreed that the lower court ruling was too broad.
Harris wrote that the order requiring certifications from federal contractors and grantees not to support DEI only required pledges not to violate existing federal anti-discrimination law.
She said this did not present a direct threat to First Amendment rights, as the pledges “do not authorize the termination of grants based on a grantee’s speech or activities outside the scope of the funded activities.”
In defense of her opinion, Harris wrote: “My vote should not be understood as agreement with the orders’ attack on efforts to promote diversity, equity, and inclusion.”
Diaz, who agreed with his liberal colleague, was somewhat more critical in his opinion, writing: “Despite the vitriol now being heaped on DEI, people of good faith who work to promote diversity, equity, and inclusion deserve praise, not opprobrium.”
“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?”
The third member of the panel, Judge Allison Rushing, who was appointed by President Trump, rejected her colleagues’ reasoning, and wrote that their personal opinions were outside their professional role as 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,” wrote Rushing, adding, “a judge’s opinion that DEI programs ‘deserve praise, not opprobrium’ should play absolutely no part in deciding this case.”
A left-wing legal group, Democracy Forward, brought the class action suit against President Trump’s executive orders 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.
The plaintiffs argued that Trump’s executive orders were an overreach of presidential authority, and therefore unconstitutional.
Abelson, who was appointed to the bench by President Joe Biden, wrote that Trump’s anti-DEI policies had the potential to harm the free speech rights of pro-DEI government contractors, and that the executive orders would result in “arbitrary and discriminatory enforcement.”
The judge also claimed that the EOs were unconstitutionally vague, since they did not have a clear definition of DEI.
Attorneys with the Justice Department argued that the EOs only targeted DEI programs that violated federal civil rights laws, and that the president should have the ability to align federal spending with his policies.
DEI has long been blasted by critics for undermining traditional merit in hiring, promotion, and educational opportunities, in favor of reverse discrimination in the private and public sector.
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