March 2025 DEI – The Legal Response to Executive Orders 14151 and 14173

March 2025

The evolving landscape of Diversity, Equity, and Inclusion (DEI) policies continues to shift, particularly as recent executive actions face legal scrutiny. Two executive orders signed in January 2025 are the subject of a lawsuit that raises constitutional concerns regarding free speech and due process.

Background on Executive Orders 14151 and 14173

On January 20, 2025, President Trump signed Executive Order 14151: Ending Radical and Wasteful Government DEI Programs and Preferencing, effectively terminating equity action plans and DEI programs within the federal government.1 The following day, he signed Executive Order 14173: Ending Illegal Discrimination and Restoring Merit-Based Opportunity, discontinuing affirmative action requirements for the federal workforce and contractors while discouraging DEI programs in the private sector.2

These executive orders revoked several prior orders that had established DEI policies:

    • Executive Order 13672 (2014) – Prohibited discrimination based on sexual orientation and gender identity in federal hiring
    • Executive Order 13583 (2011) – Promoted diversity and inclusion in the federal workforce
    • Executive Order 12898 (1994) – Directed federal agencies to address adverse environmental and health effects on minority and low-income populations
    • Executive Order 11246 (1965) – Required federal contractors to adopt affirmative action plans

 

Despite these changes, the new executive orders do not alter the non-discrimination requirements of Title VII of the Civil Rights Act, the Equal Pay Act, or other federal employment laws. However, they impose new compliance measures that are enforceable under the False Claims Act (FCA), which could increase whistleblower claims and government investigations.

Legal Challenges to the Executive Orders

On February 3, 2025, the National Association of Diversity Officers in Higher Education, American Association of University Professors, Restaurant Opportunities Centers United, and Mayor and City Council of Baltimore, Maryland, filed a complaint for declaratory and injunctive relief in the United States District Court for the District of Maryland against the Trump administration and several federal agencies.3 The plaintiffs argue that the executive orders violate the following:

    • First Amendment (Free Speech Clause) – By restricting speech about DEI principles.
    • Fifth Amendment (Due Process Clause) – Due to vague language that lacks clear legal definitions.
    • Separation of Powers – By claiming the president overstepped authority by ordering federal agencies to terminate equity-related grants and contracts.

 

Key Legal Arguments
  • Spending Clause Violation – Plaintiffs contend that Executive Order 14151 exceeds presidential authority by requiring federal agencies to end equity-related grants and contracts without explicit approval from Congress, which is granted decision-making powers in the Spending Clause of the US Constitution (Article I, Section 8).
  • Use of Vague Language – The lawsuit highlights issues with undefined terms such as “illegal DEI” and “equity-related.” The plaintiffs argue that vague terminology in the executive orders makes enforcement arbitrary and raises due process concerns.
  • Lack of Clarity for FCA Enforcement – Executive Order 14173 requires federal contractors and grantees to certify that they do not promote DEI in a manner that violates federal anti-discrimination laws. Non-compliance could lead to penalties under the False Claims Act. The plaintiffs claim that the language of the order is too vague to determine accurately whether someone is in violation, which could lead to inconsistent enforcement and penalties for unintentional violations.
  • Excessive Government Oversight – The lawsuit challenges provisions directing the Attorney General to develop enforcement strategies to encourage the private sector to end DEI programs and principles that constitute illegal discrimination and preferences. Plaintiffs argue that these measures could chill speech and restrict lawful DEI efforts.

 

Court Rulings and Legal Proceedings

On February 21, US District Judge Adam B. Abelson granted a nationwide preliminary injunction, temporarily blocking enforcement of the orders. In his ruling, Judge Abelson stated,

“For prudential and separation-of-powers reasons, the Court will not enjoin the Attorney General from preparing the report pursuant to the J21 Order, or engaging in investigation. But otherwise, Plaintiffs have shown they are entitled to an injunction as to the Termination, Certification and Enforcement Threat Provisions, whether as applied to Plaintiffs or to others.”

He also criticized the lack of clarity in the orders, declaring,

“The Termination and Enforcement Threat Provisions are unconstitutionally vague as to all contractors and grantees who are subject to them, and the Certification and Enforcement Threat Provisions are content- and viewpoint-based restrictions that chill speech as to anyone the government might conceivably choose to accuse of engaging in speech about “equity” or “diversity” or “DEI,” or the other topics the J20 and J21 Orders cite.”4

Following this ruling:

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