Lawsuit Challenges Trump Administration DEI Executive Orders

On February 3, 2025, multiple groups filed a lawsuit against President Trump and members of his administration, asking the court to halt and declare unconstitutional two executive orders that are aimed at ending diversity programs among both federal contractors and private employers. The plaintiffs include the National Association of Diversity Officers in Higher Education, the American Association of University Professors, the Restaurant Opportunities Centers United, and the Mayor and City Council of Baltimore, MD. The lawsuit states that the principles of diversity, equity, inclusion, and accessibility are critical to the operations of each of these groups, and they rely on federal support through contracts and grants to complete their work. These contracts and grants are at risk as a result of these executive orders, which the lawsuit alleges are unconstitutional. 

The executive orders being challenged in the suit are Executive Order 14151 titled “Ending Radical Government DEI Programs and Preferencing” and Executive Order 14173 titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” EO 14151 revoked diversity policies that had been implemented under the Biden administration and directed all federal agencies to end DEI mandates, programs and activities, DEI offices and positions, and all “equity-related” grants or contracts. EO 14173 revoked EO 11246, which required federal contractors to development affirmative action plans based on race and sex. It also requires the termination of “all discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders and requirements” in federal agencies.  

The lawsuit alleges that these executive orders are unconstitutional on multiple grounds. It states that the Constitution gives Congress spending power exclusively, and that the President and officials of the executive branch do not have the authority to unilaterally terminate contracts without express statutory authority. It also states that the President can’t place conditions on the spending power that is given to Congress, and EO 14173 places condition on the receipt of federal funds by requiring certification that organizations are not operating any “illegal DEI programs.”  

The plaintiffs also claim that EO 14173 is unconstitutional under the Fifth Amendment to the Constitution, which guarantees due process. The lawsuit states that an action like an executive order is unconstitutionally vague if it “fails to provide a person of ordinary intelligence fair notice of what is prohibited or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” The plaintiffs argue that key terms in the executive order are not defined, including “DEI”, “illegal DEI”, and “equity-related” and leaves organizations to guess if their contracts and grants will be terminated, or if they will be subject to civil investigation or enforcement. 

Finally, the lawsuit alleges that EO 14173 violates the Free Speech Clause of the First Amendment because the “threat of ‘civil compliance investigations’ impermissibly restricts the exercise of [plaintiffs] constitutionally protected speech based on its content and viewpoint.” Two of the plaintiffs – the National Association of Diversity Officers in Higher Education and the American Association of University Professors – are made up of members of institutions of higher education. The lawsuit states that the freedom of speech of academic faculty and Chief Diversity Officers is impacted due to the threats of civil investigations made in the executive order, and the potential cost these investigations would have.  

The lawsuit requests the court to declare that both executive orders are unlawful and unconstitutional, and to enter a preliminary and permanent injunction enjoining Defendants other than the President from enforcing them.  

Berkshire will continue to follow this lawsuit and share our analysis.