The new administration has made efforts to rid the federal government of DEI programs a top priority. However, two Anti-DEI Executive Orders facing legal challenges have been partially enjoined by a Maryland District Court. Gibson Dunn covers the specifics of the injunction in a recent memo:
“The court enjoined the government defendants from freezing or terminating existing ‘equity-related’ contracts and grants (pursuant to EO 14151). With respect to EO 14173, the court enjoined the government defendants from (1) requiring federal contractors and grant recipients to certify that they do not ‘operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws,’ (2) requiring federal contractors and grant recipients ‘to agree that [their] compliance in all respects with all applicable Federal anti-discrimination laws is material’ for purposes of the False Claims Act, and (3) bringing any enforcement action targeting ‘DEI programs or principles.’ However, the court declined to ‘enjoin the Attorney General from … engaging in investigation’ of DEI programs.”
The memo notes that the administration is certain to challenge this injunction in the Fourth Circuit Court of Appeals, which may decide to limit or stay the injunction while the appeal is pending. Additionally, the scope of the injunction is likely to be questioned by the administration. While the District Court appears to intend for the injunction to apply nationwide to all federal agencies, the administration is likely to argue that it only applies to agencies named as defendants in the case. This interpretation would leave out critical agencies such as the Department of State, Department of Defense, EEOC, FCC, and General Services Administration. Whether the injunction remains in place or not, this signals that federal DEI programs aren’t going down without a fight and we can expect plenty of litigation on the matter which may take a long time to resolve.
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