DOJ Pressed on ‘Illegal’ DEI Initiatives at Seventh Circuit

Seventh Circuit judges Friday pressed a Trump administration attorney on a question that’s been echoing through lower courts for months: What exactly does the government mean by “illegal” diversity, equity, and inclusion initiatives?

The case, which involves a Chicago nonprofit’s challenge to an anti-DEI executive order, has to be viewed in context, judges Ilana Diamond Rovner and David Hamilton said.

“Programs that have been seen as combating historical discrimination were suddenly characterized as violating anti-discrimination laws, with no definition as to how and when DEI programs will fall on the illegal side of the analysis,” Rovner said. “What type of DEI activities are still lawful, if any? Are there any?”

Deputy Assistant Attorney General Eric McArthur said there isn’t “a single word in the executive order that says all DEI is unlawful,” and pointed to a July memo with examples of practices that, in their view, violate antidiscrimination law.

The administration appealed to the US Court of Appeals for the Seventh Circuit regarding an injunction from a Chicago federal judge, which barred the Department of Labor from making recipients of federal grants certify they don’t operate programs promoting DEI that violate anti-discrimination laws.

Hamilton asked McArthur if the mission of Chicago Women in Trades, the plaintiffs in the underlying case, violates those laws. McArthur said he didn’t know enough detail about the group to say.

The executive orders in question “were obviously issued as part of a 180-degree turn in federal antidiscrimination policy,” Hamilton said. “You seem to be asking us to ignore that context.”

McArthur said that’s not the case.

“There seems to be this notion that has taken root in this country that if you are aiming to promote diversity, equity and inclusion, you can engage in forms of discrimination that would otherwise violate antidiscrimination laws,” McArthur said. “And the executive order is clarifying, no, that’s not the case,” he said.

First Amendment

McArthur argued the challenged provision relates to a group’s conduct, not their speech, so the group’s First Amendment claims fall short.

But the order explicitly makes groups certify they don’t operate “programs promoting” illegal DEI, said Warrington Parker III of Crowell & Moring, representing CWIT, telling the panel “‘promote’ is not conduct talk.”

Even a detailed explanation of what’s considered illegal wouldn’t necessarily solve the First Amendment issue, since making groups certify they don’t promote DEI poses a viewpoint discrimination problem, he said.

“You can run any program you want that is anti-DEI, it can even violate the antidiscrimination laws of the United States, and you don’t have to certify a thing,” he said.

Chief Judge Michael Brennan asked attorneys whether the injunction was too sweeping under the US Supreme Court’s decision in Trump v. CASA Inc, which placed restrictions on universal injunctions.

McArthur said it was overbroad, and told the panel if they aren’t inclined to throw out the injunction altogether they should at least restrict it to CWIT and its direct affiliates.

But CASA held that if a party has standing to sue, an injunction can be wide enough to give them a complete remedy, Parker said, and requiring groups to certify anti-DEI compliance nationwide could disincentivize them from doing business with CWIT.

If the panel determines that the injunction should be narrowed, he said, they should remand it to the district court to decide “what carving should be done.”

While the injunction was put in place pre-CASA, Judge Matthew Kennelly of the US District Court for the Northern District of Illinois reiterated after the high court’s decision that his injunction remains valid.

The underlying case was brought by CWIT, a nonprofit advocating for female participation in the skilled trades. It challenged the so-called “certification provision” on First Amendment grounds.

CWIT is also represented by Lawyers’ Committee for Civil Rights Under Law, National Women’s Law Center, and LatinoJustice PRLDEF.

The case is Chicago Women in Trades v. Trump, 7th Cir., No. 25-02144, oral arguments 1/30/26.