Hunton Employment & Labor Perspectives

On Monday, February 3, a group of organizations, including representatives of university diversity officers, sued President Trump and his administration, seeking to halt and declare unconstitutional two executive orders aimed at ending diversity, equity, and inclusion (DEI) programs. The lawsuit, filed in the U.S. District Court of the District of Maryland, challenges Trump’s orders as exceeding his constitutional authority and violating principals of equality.

These executive orders from the first week of Trump’s presidency target DEI programs within the federal government and institutions that receive federal funding. One challenged order aims to eliminate DEI offices and positions in the federal government. The other order seeks to deter publicly traded corporations, universities, and other large entities from supporting diversity initiatives.

The plaintiffs are the National Association of Diversity Officers in Higher Education, the American Association of University Professors, the Restaurant Opportunities Center United, and Baltimore’s mayor and city council. They argue that the executive orders undermine efforts to correct historical discrimination against women, racial minorities, and LGBTQ individuals.

In their complaint, the plaintiffs allege that these executive orders:

1. Exceed President Trump’s constitutional authority, infringing on the spending power, which the Constitution grants exclusively to Congress, by threatening economic sanctions for those who advocate equality and inclusion;
2. Violate the separation of powers enshrined in the Constitution;
3. Are unconstitutionally vague, meaning they fail to provide a person with fair notice of what is prohibited in violation of the Fifth Amendment; and
4. Violate the First Amendment Free Speech Clause by creating a chilling effect on expression or participation in anything that might be related to DEI.

The plaintiffs seek both preliminary and permanent injunctions to block the orders, as well as a declaration that both executive orders are unlawful and unconstitutional.

This lawsuit evidences ongoing debates over the role of DEI programs in addressing inequality. Those challenging the orders argue that DEI programs are necessary to correct long-standing disparities. Those in favor of eliminating DEI programs contend that such programs unfairly disadvantage other applicants. As this challenge to President Trump’s anti-DEI orders unfolds, it will have significant implications for the future of diversity efforts in both the public and private sectors.

Employers and universities alike should work with outside counsel to ensure they are compliant with applicable law and assess organizational risk where appropriate.