4th Cir. Dissects Free Speech Claims on Trump Anti-DEI Orders

A panel of Fourth Circuit judges wrestled with the alleged chilling effect on free speech caused by President Donald Trump’s anti-DEI executive orders, as the administration argued for reversing an injunction blocking parts of the directives.

The challengers to Trump’s orders claimed a provision requiring federal contractors and grant recipients to certify they don’t operate any illegal or discriminatory DEI programs infringes their First Amendment rights—a claim that a district court found compelling enough to block enforcement of the provision. The injunction has now been stayed pending appeal, allowing federal agencies to go ahead with enforcement.

The US Court of Appeals for the Fourth Circuit case is being closely watched as one of the earliest in a string of lawsuits challenging Trump’s executive orders targeting diversity, equity, and inclusion programs that the administration considers discriminatory.

The plaintiffs read the provision in question to “require that they certify they don’t do any DEI,” Judge Pamela A. Harris, an Obama appointee, told the federal government’s attorney during oral arguments Thursday. “I know you disagree. If there is even a plausible case that it means what they think it means, then we don’t have a standing problem.”

The language of that certification requirement focuses on illegal conduct and policies, while making clear programs that are labeled “diversity, equity, and inclusion” are automatically immunized from civil rights claims, as some people might have assumed under prior administrations, Justice Department attorney Jacob Roth told the court.

“We’re making very clear that’s not a categorical exclusion,” he said. “Of course the label doesn’t make it unlawful, but the label also doesn’t make it lawful” if it otherwise violates federal anti-bias statutes.

The plaintiffs’ attorney disagreed with Roth’s depiction of the certification requirement.

“If this provision said you must follow anti-discrimination laws, we wouldn’t be here,” said Aleshadye Getachew, from the legal advocacy group Democracy Forward Foundation. “The inclusion of ‘promoting DEI’ here is the issue.”

She cited examples of federal agencies canceling funding awards, such as grants to the City of Baltimore related to senior citizen services, based purely on keyword searches of websites or program materials.

“We’ve seen this provision being used specifically to target DEI that goes beyond illegal conduct,” Getachew said.

Those examples might be better brought as individual lawsuits challenging specific agency actions, rather than pursuing a broad facial challenge to the executive orders and struggling to show concrete injury needed for standing, said Judge Allison Jones Rushing, a Trump appointee.

“That’s why we have the standing requirement, so we’re not mired in the sort of hypothetical, atmospheric discussion we’re having now,” Rushing said.

Government Spending Choices

The plaintiffs, led by the National Association of Diversity Officers in Higher Education, initially won the broad injunction in February barring all federal agencies from enforcing key parts of Trump’s orders.

Judge Adam Abelson from the US District Court for the District of Maryland found those mandates were likely to be unconstitutionally vague and violate the plaintiffs due process rights, mirroring the arguments from other challenges to Trump’s orders.

All three judges in Thursday’s hearing voiced skepticism of the claims against another enjoined provision of Trump’s orders—the mandate for federal agencies to terminate “equity-related” grants or contracts wherever legally allowed.

“They have discretion to not subsidize certain speech. The government doesn’t need to fund speech that it might disagree with,” said Chief Judge Albert Diaz, an Obama appointee.

The injunction win at the district court leaned heavily on Fifth Amendment due process claims, as the challengers argued the executive orders imposed overly vague restrictions on DEI within the government and private sector.

Roth argued the vagueness claim shouldn’t apply in the same way to a government spending mandate as it would to a criminal or civil statute that’s prohibiting some private-sector behavior.

“This executive order is not defining what is lawful or unlawful,” he said. “It is determining what the government is going to pay for or not pay for.”

The Fourth Circuit had signaled earlier that the US Supreme Court’s June opinion in Trump v. CASA could influence this case, but the judges and attorneys didn’t touch on it during Thursday’s hearing. The Supreme Court majority in that ruling narrowed federal judges’ authority to issue universal or nationwide injunctions against executive branch actions.

The case is Nat’l Assoc. of Diversity Officers in Higher Ed. v. Trump, 4th Cir., No. 25-01189, oral arguments held 9/11/25