Fourth Circuit Rejects Facial Challenge to Two Trump Anti-DEI Executive Orders

"What plaintiffs are really asking us to do is read subtext into the Provision's text."

From Nat'l Ass'n of Diversity Officers in Higher Ed. v. Trump, decided today by Fourth Circuit Chief Judge Albert Diaz, joined by Judges Pamela Harris and Allison Rushing:

In the first days of his second term, President Donald J. Trump issued two Executive Orders ["Ending Radical and Wasteful Government DEI Programs and Preferencing" and "Ending Illegal Discrimination and Restoring Merit-Based Opportunity"] that directed executive agencies to end "diversity, equity, and inclusion" ("DEI") programs within federal grant and contract processes…. The district court entered a preliminary injunction, but we stayed it pending appeal. We now vacate the district court's injunction and remand….

[1.] The court rejected a Due Process Clause vagueness challenge to the "Termination Provision" of the first executive order, which directed "all [federal] agencies, departments, and commissions to":

terminate, to the maximum extent allowed by law, all DEI, DEIA, and "environmental justice" offices and positions (including but not limited to "Chief Diversity Officer" positions); all "equity action plans," "equity" actions, initiatives, or programs, "equity-related" grants or contracts; and all DEI or DEIA performance requirements for employees, contractors, or grantees.

The court reasoned:

Plaintiffs argue that the provision never defines "equity-related," so there isn't "any guidance as to which grants or contracts must be terminated." Thus, "agencies are free to terminate grants and contracts as they please, even based on protected speech."

But therein lies plaintiffs' dilemma. The Termination Provision, on its face, doesn't ask anything of them, nor does it regulate private conduct. Instead, it instructs the President's subordinates to act, and then only "to the maximum extent allowed by law." The Provision, at this stage at least, is nothing more than "an outward-facing" policy directive from the President to his agents…. "Any concerns of vagueness regarding exactly what authority an agency may have to terminate a grant are internal considerations for the agency itself." …

The President may determine his policy priorities and instruct his agents to make funding decisions based on them. President Trump has decided that equity isn't a priority in his administration and so has directed his subordinates to terminate funding that supports equity-related projects to the maximum extent allowed by law. Whether that's sound policy or not isn't our call. We ask only whether the policy is unconstitutionally vague for funding recipients.

The Supreme Court's decision in NEA v. Finley provides the answer. There, the Court rejected a facial vagueness challenge to certain standards in the National Foundation on the Arts and Humanities Act. Those standards directed the National Endowment for the Arts' chairperson "to ensure that 'artistic excellence and artistic merit are the criteria by which [grant] applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public.'"

The Court acknowledged that "[t]he terms of the provision are undeniably opaque, and if they appeared in a criminal statute or regulatory scheme, they could raise substantial vagueness concerns." But it explained that, in the funding context, "when the Government is acting as patron rather than as sovereign, the consequences of imprecision are not constitutionally severe." "To accept [the] respondents' vagueness argument," continued the Court, "would be to call into question the constitutionality" of other government funding programs and awards based on "subjective criteria such as 'excellence.'" …

[2.] The court rejected a Free Speech Clause challenge to the "Certification Provision" of the second order, which instructs "[t]he head of each agency [to] include in every contract or grant award,"

(A) A term requiring the contractual counterparty or grant recipient to agree that its compliance in all respects with all applicable Federal anti-discrimination laws is material to the government's payment decisions for purposes of {the False Claims Act, which carries a civil penalty for knowingly making false statements}; and

(B) A term requiring such counterparty or recipient to certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.

The court reasoned:

[T]he Provision requires only that plaintiffs certify compliance with federal antidiscrimination laws, which the First Amendment doesn't confer a right to violate. {The certification requirement also seemingly aligns with the Executive Order's purpose: to enforce "[l]ongstanding Federal civil-rights laws [that] protect individual Americans from discrimination based on race, color, religion, sex, or national origin."} … [P]laintiffs have no protectable speech interest in operating, and "no constitutional right to operate[,] DEI programs that violate federal antidiscrimination law."

Indeed, existing federal law already demands such compliance, and plaintiffs have not challenged existing law as viewpoint-discriminatory or as over or underinclusive. Plaintiffs suggest that defendants view all DEI programs as illegal under existing antidiscrimination law. Perhaps, but the Certification Provision doesn't say that.

What plaintiffs are really asking us to do is read subtext into the Provision's text. And what they're really challenging is how the Administration and its agency actors interpret antidiscrimination law in relation to plaintiffs' DEI programming. Neither is fertile ground for a facial attack against the Certification Provision.

Instead, we're bound by the text. If the President, his subordinates, or another grantor misinterprets federal antidiscrimination law, plaintiffs "can challenge that interpretation in a specific enforcement action." But we can't conclude today that a "substantial number of the [Certification Provision's] applications" will be unconstitutional.

[3.] The court held plaintiffs lack standing to challenge the "Enforcement Threat Provision" of the second Executive Order, which

tasked the "heads of all agencies, with the assistance of the Attorney General" to prepare a report, within 120 days of the Order, identifying "[a] plan of specific steps or measures to deter DEI programs or principles (whether specifically denominated 'DEI' or otherwise) that constitute illegal discrimination or preferences."

The court reasoned largely that the provision itself didn't do anything to plaintiffs—it only ordered agencies to prepare a report with planned steps, steps that could themselves later be challenged once they are implemented.

[4.] Chief Judge Diaz filed a short concurrence:

We're presented today with a facial challenge to two Executive Orders concerning certain DEI programming, not the legality or termination of any particular DEI program. That makes all the difference.

Defendants represented at oral argument that there is "absolutely" DEI activity that falls comfortably within the confines of the law. I hope that's true. But the evidence cited by plaintiffs, their 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.

{The Administration's obsession over so called "woke" DEI programs appears to know no bounds. This past December, Secretary of State Marco Rubio—who also serves as Acting National Security Advisor and Acting Archivist of the United States—somehow found time to rail against the Calibri typeface previously approved for State Department use by his predecessor. I kid you not.

Secretary Rubio's predecessor made the change to Calibri (a sans serif font) to help improve accessibility for those with dyslexia or other visual impairments. So why did Secretary Rubio decree otherwise? Primarily, for the entirely defensible reasons that (1) his preferred choice (Times New Roman 14, a classic serif font) presents a more professional and formal typography for diplomatic correspondence, and (2) use of the Calibri font had (at least in the State Department's experience) not meaningfully improved reader accessibility.

Had the Secretary left it there, I would applaud him, particularly since our court favors his font choice. But leave it there, he couldn't. Instead, the Secretary lashed out at his predecessor for imposing yet another "illegal, immoral, radical [and] wasteful [diversity initiative]" before ordering Calibri's demise. Sigh.}

Cognizant of my oath, I've framed the limited question before us and answered it. And I've (reluctantly) left others for tomorrow.

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.

[5.] Judge Allison Rushing concurred in part and in the judgment; she disagreed as to certain standing questions related to the certification provision—you can read her opinion, as well as more from the majority related to standing, here.

Jacob Moshe Roth argued for the government.