A group of DEI advocates suffered a setback on Friday when a federal appeals court temporarily reinstated key parts of the President’s orders to end discriminatory “diversity equity and inclusion” programs in federal agencies.
In a unanimous ruling, the Fourth Circuit Court of Appeals overturned federal district Judge Adam Abelson’s decision to temporarily block the directives. The three-judge appellate panel, including one Trump and two Obama appointees, agreed the government had made a strong showing that the challenged directives were likely constitutional.
The case concerns two Executive Orders, 14151 and 14173, which instructed executive agencies to end DEI programs within federal grant and contract processes.
In February, a group of professors and diversity officers sued the administration, claiming three of the orders’ provisions violated the First and Fifth Amendments of the Constitution.
As we reported here, the district court found the challenged provisions were likely unconstitutional and issued a nationwide injunction barring the government from enforcing them. It later clarified that its sweeping injunction extended to unnamed defendants, including “other federal executive branch agencies, departments, and commissions, and their heads, officers, agents, and subdivisions.”
That was a bridge too far, Judge Allison Rushing, the Trump appointee, wrote in her concurring opinion last week: “The scope of the preliminary injunction alone should raise red flags: the district court purported to enjoin nondefendants from taking action against nonplaintiffs.”
“But, more than that,” Judge Rushing continued, “the judges of this panel unanimously agree that the entire substance of the preliminary injunction must be stayed, not just trimmed back in scope. The government is likely to demonstrate “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,” Judge Rushing concluded.
Chief Judge Albert Diaz and Judge Pamela Harris were compelled to give Trump the win, but they each made sure the audience knew which side they were on: “People of good faith who work to promote diversity, equity, and inclusion deserve praise, not opprobrium,” they both wrote in their concurring opinions.
But those personal beliefs “should play absolutely no part in deciding this case,” Judge Rushing shot back. “We must not lose sight of the boundaries of our constitutional role and the imperative of judicial impartiality. Any 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,” Judge Rushing wrote in her opinion.
The challenged orders will remain unblocked pending the outcome of the government’s appeal. And that appeal is now headed toward a court that—the judges’ individual viewpoints aside—has signaled its consensus they are likely constitutional.
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