In our prior post, we reported that on February 21, 2025, a Maryland federal judge had issued a nationwide preliminary injunction temporarily blocking the key provisions of President Trump’s DEI-related Executive Orders (EOs). That judge later refused to stay the preliminary injunction, despite the Trump administration’s request, and clarified that the preliminary injunction applied to all federal agencies, not only those named as defendants in the lawsuit.

As expected, the Trump administration appealed the temporary ban on its DEI-related EOs to the U.S. Court of Appeals for the Fourth Circuit and sought a stay of the preliminary injunction. On March 14, 2025, a three-judge Fourth Circuit panel granted the administration’s request for a stay, temporarily reinstating the EOs in full as it considers their legal propriety. In granting the stay, the Fourth Circuit found that the government satisfied the four factors governing stays under Nken v. Holder, 556 U.S. 418, 426 (2009)—the likely success on the merits; irreparable injury; the balance of the equities; and the public interest. Each of the three judges on the panel issued a concurring opinion. Chief Judge Diaz’s concurrence provides a defense of DEI, remarking that, “despite the vitriol now being heaped on DEI, people of good faith who work to promote diversity, equity, and inclusion deserve praise, not opprobrium.” He also took issue with the stated fact that the EOs do not define DEI and, “[a]s a result, it’s unclear what types of programs – formal or informal – the administration seeks to eliminate.”

Judge Harris, in turn, agreed with Chief Judge Diaz’s sentiments but also observed that the EOs “do not purport to establish the illegality of all efforts to advance diversity, equity, or inclusion”; rather, they “are of distinctly limited scope,” as the key provisions “apply only to conduct that violates existing federal anti-discrimination law.” But, Judge Harris continued, what the EOs “say on their face and how they are enforced are two different things,” and “agency enforcement actions that go beyond the [EOs’] narrow scope may well raise serious First Amendment and Due Process concerns.”

Judge Rushing’s concurrence advanced four principal points. First, she observed that the scope of the preliminary injunction was overbroad because it “purported to enjoin nondefendants from taking action against nonplaintiffs.” Second, she noted that the administration had made a “strong showing” that it is “is likely to succeed in demonstrating that the challenged provisions of the executive orders – all of which are directives from the President to his officers – do not violate the First or Fifth Amendments.” Third, she questioned the “ripeness of this lawsuit and plaintiffs’ standing to bring it,” as the case “does not challenge any particular agency action implementing the executive orders.” Fourth, she admonished her fellow judges for defending DEI as a policy matter, stating that “[a]ny individual judge’s view on whether certain executive action is good policy is not only irrelevant to fulfilling our duty to adjudicate cases and controversies according to the law, it is an impermissible consideration.” Per Judge Rushing, a judge’s opinion in favor of DEI programs “should play absolutely no part in deciding this case.”

Given these developments, employers should continue to consult legal counsel to mitigate risks and strategically align DEI efforts. Reed Smith will continue to monitor this litigation.