Lawsuit Blocks DEI Executive Order But Guidance Unaffected

A federal judge issued an injunction blocking the Trump Administration from enforcing certain provisions in its executive order on DEI, but the ruling does not apply to the DEI guidance issued by the Department of Education.

The injunction enjoins the Trump Administration from implementing three elements of the DEI executive order:

• The termination provision, which directs all federal agencies to terminate equity-related grants or contracts;

• The certification provision, which instructs federal agencies to include in all grant or contract agreements a provision, enforceable via the False Claims Act, requiring grantees and contractors to certify that they do not operate programs promoting DEI programs that violate federal civil rights laws; and

• The enforcement provision, which directs the Attorney General to take measures to encourage the private sector to end illegal discrimination and preferences and to identify targets for investigation and enforcement.

The ruling is significant for institutions of higher education, primarily because it blocks the Trump Administration from exposing institutions to broad liability under the False Claims Act and because it prevents the administration from targeting up to nine institutions of higher education with endowments over $1 billion for investigation and enforcement.

The court’s ruling applies only to the DEI executive order, not the Department’s DEI guidance, and the Department has indicated that it does not believe the injunction affects its ability to enforce the guidance. Nevertheless, many of the legal arguments used successfully in the executive order case could potentially be effective in a similar challenge to the DEI guidance, and at least one lawsuit against the DEI guidance has been filed in federal court.

For more information, please contact:
Jody Feder