AAUP Case Challenging the Trump Administrations Executive Orders Seeking to Ban Diversity, Equity, and Inclusion Programs

The AAUP is a plaintiff in a case in which the federal court has ordered that the Trump administration cease requiring universities to comply with the executive orders seeking to ban diversity, equity, and inclusion (DEI) programs on university campuses. On February 3, 2025, Democracy Forward brought a suit against the Trump administration and multiple federal agencies on behalf of four organizations: the AAUP (representing faculty members), the National Association of Diversity Officers in Higher Education (representing diversity officer members), the city of Baltimore (representing a public sector grantee), and Restaurant Opportunities Centers United (representing a private sector grantee). We brought this suit to prevent the Trump administration from using federal grants and contracts as leverage to force colleges and universities to end all diversity, equity, and inclusion programs, whether federally funded or not, and from terminating any “equity-related” federal grants or contracts.

The AAUP sought on an expedited basis a preliminary injunction to prevent the administration from enforcing these orders. As our brief explained, the orders are unconstitutional, usurping congressional power and violating First and Fifth Amendment rights. Absent preliminary relief, significant and irreparable harm would have been caused to our members, their students, and their communities. Most importantly, the government could have used the threat of terminating billions of dollars of grants and contracts as well as the threat of investigations and enforcement actions to force faculty and universities to cease virtually all of their legally permissible work relating to diversity, equity, inclusion, and accessibility.

On February 21, 2025, the US District Court for the District of Maryland granted a preliminary nationwide injunction on key parts of the executive orders. In its decision, the court explicitly cited the evidence provided by courageous AAUP members when it found that there were “concrete actual injuries suffered by plaintiffs and their members” as a result of the unlawful actions of the administration and that AAUP members and their institutions would “be forced to either restrict their legal activities and expression that are arguably related to DEI, or forgo federal funding altogether.”

The court found that the Trump executive orders were unconstitutional in two respects. First, it held that the executive orders were unconstitutionally vague.

Plaintiffs have shown a likelihood of success on their claim that the Termination Provision is void for vagueness under the Fifth Amendment for two main reasons. First, the vagueness of the term “‘equity-related’ grants or contracts” invites arbitrary and discriminatory enforcement. Second, the vagueness of the term offers insufficient notice to current grantees about whether and how they can adapt their conduct to avoid termination of their grants or contracts.

Second, the court held that they violated the First Amendment. The court explained the fundamental First Amendment principle at play.

There is a label for government action that seeks to “deter . . . principles,” J21 Order § 4(b)(iii), that the government disagrees with: “restrict[ion]” of “expression because of its message, its ideas, its subject matter, or its content.”  And the most “blatant” and “egregious form of content discrimination” is viewpoint discrimination. 

The judge found that our lawsuit is likely to succeed on the claim that enforcement actions against companies and universities would trample upon constitutionally protected free speech. 

The White House and Attorney General have made clear, through their ongoing implementation of various aspects of the J21 Order, that viewpoints and speech considered to be in favor of or supportive of DEI or DEIA are viewpoints the government wishes to punish and, apparently, attempt to extinguish. And, as the Supreme Court has made clear time and time again, the government cannot rely on the “threat of invoking legal sanctions and other means of coercion” to suppress disfavored speech.

The AAUP’s membership includes many potentially affected faculty, such as those whose work focuses on Black studies, Latino studies, Asian studies, gender or sexual orientation, DEI, environmental justice, and other subject matter targeted by the president’s anti-DEIA executive orders. We also represent a significant number of members who focus on medical and other scientific research related to whether and how race and ethnicity affect health outcomes. Beyond AAUP members, students and communities would be harmed by the termination of the higher education grants—work on female reproductive health would be curtailed, assistance to help students with disabilities and from underrepresented populations graduate and find careers would be undermined, and efforts to strengthen research capacity at historically Black colleges and universities would be set back.

UPDATES

Government Files Notice of Appeal and Request

On February 24, 2025, the government filed its notice of appeal of the decision of the district court to the federal Fourth Circuit court of appeals. The court of appeals will generally issue an order scheduling a briefing. The appellate court will likely not hear arguments in the appeal for at least a couple of months. 

Government's Motion to Stay Injunction Is Rejected

On February 25, 2025, the government filed a motion asking the district court to “stay”—or put on hold—its preliminary injunction while the appeal was pending. On March 3, 2025, the district court rejected the government’s motion, reiterating its points from the initial decision. In particular, the court found that

the First Amendment prohibits the government from making any law “abridging the freedom of speech.” U.S. Const., amdt. I. The government “has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015) (quoting Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972)).

[T]he specific executive order provisions at issue in this case . . .punish, or threaten to punish, individuals and institutions based on the content of their speech, and in doing so they specifically target viewpoints the government seems to disfavor. 

As a result, the preliminary injunction will remain in effect.

Government Files Motion to Stay Pending Appeal with the Court of Appeals

On March 4, 2025, immediately after the district court denied the government’s motion to stay, the government filed a "Time Sensitive Motion for Stay Pending Appeal" and requested a decision from the Fourth Circuit by next Friday, March 14, 2024. The parties will file briefs on the motion prior to the court issuing a decision. 

Court of Appeals Grants Government Motion to Stay

On March 14, 2025, the Fourth Circuit Court of Appeals granted the government’s motion to stay—or put on hold—the district court’s preliminary injunction while the appeal is pending. The court emphasized that the suit was not based on any distinct grant denials and the government had claimed its actions would only apply to “illegal” diversity, equity, and inclusion programs. Two of the three judges were clear that they were reserving “judgment on how the administration enforces these executive orders, which may well implicate cognizable First and Fifth Amendment concerns.” The Fourth Circuit has ordered expedited briefing and is expected to rule on the appeal promptly.