The Volokh Conspiracy
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The First Amendment and the Trump Administration's Anti-DEI Executive Orders
Nat'l Ass'n of Diversity Officers in Higher Ed. v. Trump, decided Thursday by Judge Adam Abelson (D. Md.), reaffirms an injunction against the Administration's DEI Executive Orders that the judge had issued (and that was stayed on appeal). The plaintiffs argue that "[new] factual developments merit vacating the injunction and permitting Plaintiffs to file an amended complaint and a renewed motion for a preliminary injunction," and the court said no. But in the process the court discussed the substantive question, and I thought I'd pass that along:
This Court remains of the view that Plaintiffs have shown a strong likelihood of success on the merits of their facial free speech and vagueness claims …. The Challenged Provisions forbid government contractors and grantees from engaging in "equity-related" work and from "promoting DEI" in ways the administration may consider to violate antidiscrimination laws; they demand that the "private sector" "end … DEI" and threaten "strategic enforcement" to effectuate the "end[ing]" of "DEI"; and they threaten contractors and grantees with enforcement actions with the explicit purpose of "deter[ring]" such "programs or principles."
This Court remains deeply troubled that the Challenged Provisions, which constitute content-based, viewpoint-discriminatory restrictions on speech (in addition to conduct), have the inherent and ineluctable effect of silencing speech that has long been, and remains, protected by the First Amendment. And they do so through impermissibly vague directives that exacerbate the speech-chilling aspects of the Challenged Provisions.
Historically, the metaphor used to describe the effect of laws that restrict speech is "chill." The more apt metaphor here is "extinguish." Part of the explicit purpose and effect of the Challenged Provisions is to stifle debate—to silence selected viewpoints, selected discourse—on matters of public concern. They forbid government contractors and grantees from engaging in discourse—including speech such as teaching, conferences, writing, speaking, etc.—if that discourse is "related" to "equity." And they direct the "private sector" to "end" diversity, to "end" equity, and to "end" inclusion. "End" is not a mere "chill." "Deter[rence]" is not a side-effect of the Challenged Provisions; their explicit goal is to "deter" not only "programs" but "principles"—i.e. ideas, concepts, values. After all, the opposite of inclusion is exclusion; the opposite of equity is inequity; and, at least in some forms, the opposite of diversity is segregation.
The government has apparently concluded, and takes the position, that particular employment practices, for example related to hiring or promotion, constitute discrimination in ways that violate Title VI or Title VII. But the Challenged Provisions do far, far more than announce a change in enforcement priorities within the bounds of existing law. For as vague as the Challenged Provisions are about some matters, there can be no serious question that the direct and necessary impact of those provisions—and purposeful, to the extent that matters—is to extinguish discourse throughout civil society on what makes our society diverse, the different perspectives we each bring to bear based our respective upbringing, family history, community, economic circumstances, race, national origin, gender, ability, sexual orientation, or the like. These executive directives seek to extinguish discourse about our shared history. They seek to extinguish discourse about how to strive toward greater inclusivity, or even what that means, or whether that is a worthy goal.
The fact that the Challenged Provisions also target conduct, in addition to speech (and ideas), does not diminish the Challenged Provisions' unmistakable edict that persons working for government contractors or grantees, or any person working in the private sector for that matter, must not express certain viewpoints on a swath of topics related to inclusion, equity and diversity. And they do all of that on their face. While a "government official can share her views freely and criticize particular beliefs," and seek to "persuade" others (even "forcefully") of the merits of a particular view, officials may not "use the power of the State to punish or suppress disfavored expression." NRA v. Vullo (2024)….
Other courts have agreed. For example, in Chicago Women in Trades v. Trump (N.D. Ill. 2025), the court held that the Certification Provision undisputedly "attempts to regulate grantees' speech outside of their federally-funded programs," and further restricts speech on the basis of content and viewpoint, for example prohibiting "programmatic activity [that] 'promote[s] DEI' (whatever that is deemed to mean)."
In the education context, the U.S. District Court for the District of New Hampshire explained in detail why prohibiting "DEI," requiring certification, and threatening enforcement actions for violations combine to threaten "the 'supremely precious' yet 'delicate and vulnerable' nature of the right to free speech in our country," Nat'l Educ. Ass'n v. U. S. Dep't of Educ. (D.N.H. 2025), particularly given that they "sweep in a wide swath of conduct while leaving individual enforcement decisions to the subjective determinations of enforcement authorities." … And as Judge Gallagher explained in a similar case in this district, although the government is "entitled to its own views, including on how court cases and laws should be interpreted," and to "develop and pursue its own enforcement priorities within the law," it may not "blur the lines between viewpoint and law" in ways that prohibit (or could be reasonably perceived to prohibit) "conduct, speech, perspectives, lessons, programs, activities or meetings" on the basis of content or viewpoint. Am. Fed'n of Teachers v. Dep't of Educ. (D. Md. 2025)….
