Another Lawsuit Challenges Trump’s Anti-DEI Orders

Yet another challenge has been launched against President Trump’s anti-DEI executive orders, particularly EO 14151 (“Ending Radical and Wasteful Government DEI Programs and Preferencing”) and EO 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”) which revoked EO 11246. Once again, President Trump’s authority to revoke EO 11246 in its entirety is not being challenged. Rather, the plaintiff—the not-for-profit Chicago Women in Trades (CWIT)—is challenging what they term the “Termination Provisions” of both orders, and the “Certification Provision” and “Enforcement Threat Provision” of EO 14173. 

EO 14151 requires that all executive agencies “terminate…’equity-related’ grants or contracts,” while EO 14173 requires all executive agencies to “[t]erminate all ‘diversity,’ ‘equity,’ ‘equitable decision-making,’, ‘equitable deployment of financial and technical assistance,’ ‘advancing equity,’ and like mandates, requirements, programs, or activities.” Together, these form the “Termination Provisions.” 

The “Certification Provision” is the requirement in EO 14173 that all agencies “include in every contract or grant award” a certification that the contractor or grantee “does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.”  

Finally, the “Enforcement Threat Provision” is the requirement in EO 14173 that the Attorney General take “appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI,” to “deter” such programs or principles, and to “identify…potential civil compliance investigations” to accomplish such deterrence. 

CWIT argues these provisions are unconstitutional and asks the court to enjoin all defendants “other than the President”. Note that the lawsuit does not seek to have the EOs tossed in their entirety. 

The Arguments 

In brief, CWIT makes several arguments. First, the plaintiffs argue that these two EOs are so vague and overbroad as to violate the Free Speech Clause of the First Amendment. For example, they note that EO 14151 prohibits “diversity, equity, and inclusion” programs, “diversity, equity, inclusion, and accessibility” programs, “environmental justice” offices and positions, “equity” actions, “equity-related” grants or contracts, and “DEI” or “DEIA” performance requirements, but the EO fails to define any of those terms (which can mean very different things to different people). The Plaintiffs also argue that the broad language of the EOs imply that “any [DEI} is prohibited and must be eliminated.”  

CWIT also alleges that the Termination Provisions, Certification Provision, and the Enforcement Threat Provision constitute “viewpoint discrimination” under the First Amendment because they impermissibly chill CWIT’s ability to promote the view that “seeking to improve diversity, equity, inclusion, accessibility, and economic justice is not immoral, illegal, dangerous, demeaning, corrosive, or pernicious” (emphasis in original). Furthermore, the EOs require future federal contractors and grant recipients to certify that they will not “promote” such viewpoints, and order executive officials to list and track individuals and organizations that espouse these viewpoints and to take enforcement actions to punish them for these viewpoints. 

Count III notes that promoting the concepts of DEI does not violate any federal “anti-discrimination law,” and argues that conditioning federal funds on a contractor’s or grantee’s agreement not to engage in protected speech—even where the protected speech is not federally funded—is a violation of the First Amendment, and is therefore an unconstitutional condition. 

CWIT argues in Count IV that the vagueness of the EOs will require subjective interpretation by the agency heads tasked with enforcement. Coupled with a lack of guidance for these agency heads (and organizations like CWIT), the plaintiff argues that the EOs practically guarantee uneven enforcement in violation of the Due Process Clause of the Fifth Amendment. 

In Counts V and VI, CWIT alleges that the EOs violate the Spending Clause of the Constitution because the President does not have unilateral authority to refuse to spend funds duly authorized by Congress. 

Finally, CWIT argues in Counts VII and VIII that the attempt to condition the expenditure of Congressional funds, in the ways that the EOs have, violates constitutional separation of powers. 

What Does This Mean for Federal Contractors? 

Nothing yet. The case was filed in the District Court for the Northern District of Illinois and the court has yet to make any rulings.  

Here is where we stand for now: 

• EO 11246 remains revoked, but, until April 21, 2025, federal contractors may continue to prepare federal AAPs by race and gender using the regulatory scheme under EO 11246. Note that EO 14173 does not actually make preparing AAPs illegal, but doing so after April 21 could draw the ire of the administration (see below). 

• Although the certification requirement has already been temporarily enjoined by a different lawsuit challenge, the government has appealed that ruling. If the Administration is unsuccessful in defeating these lawsuits, or courts issue different rulings resulting in a circuit split, there could be an appeal to the Supreme Court. Despite this uncertainty, it is still likely that contractors and grant recipients will face some form of new federal contract certification requirements. Accordingly, employers should continue to develop a plan for how they will monitor their employment activity in order to be able to make these certifications once required. 

• Employers should continue to audit their DEI and other employment practices, to ensure that their policies – and the implementation of those policies – comports with Title VII of the Civil Rights Act of 1964 and applicable state or local law.  

It is worth reiterating what the EOs do not do: 

• The EOs did not change the law regarding lawful or unlawful DEI or other employment practices. Specific efforts under the banner of DEI could result in illegal discrimination, but that has been illegal since the Civil Rights Act was passed in 1964. 

• EO 14173 does not make “AAPs” illegal. The EO provides that contractors “may continue to comply with the regulatory scheme in effect on January 20, 2025,” even though the OFCCP will no longer be enforcing that “regulatory scheme.” Many have referred to this 90-day period as a “safe harbor” provision, a term typically invoked when a previously legal activity has been made illegal. But AAPs were not illegal, even if an organization preparing them was not a federal contractor. And executive orders are not laws. They do not create laws, cannot amend or rescind laws, nor can they redefine legal standards (such as what does and does not constitute “discrimination” or “illegal DEI” under Title VII). 

The fear is that engaging in perfectly legal activity runs the risk of “painting a target” on the organization for investigation by the Department of Justice, which is the heart of all these arguments that the EOs unconstitutionally “chill” protected speech and activity.  

We will continue to monitor these issues. If you have any questions, feel free to reach out to us at bai@berkshireassociates.com.