On Friday, the United States Court of Appeals for the Fourth Circuit reversed the much-covered nationwide injunction imposed by U.S. District Judge Adam Abelson in Baltimore regarding ending federal support for diversity, equity, and inclusion (DEI) programs. The three-judge panel ruled that Judge Abelson had gone “too far” in seeking to enjoin the federal government across the country.
The Fourth Circuit recognized that the executive orders “could raise concerns” about First Amendment rights that might have to be addressed down the road. However, it found Abelson’s “sweeping block went too far.” It also pointed out that the orders were not nearly as unlimited and sweeping as suggested by the district court or the media.
Trump’s orders directed federal agencies to terminate all “equity-related” grants or contracts, and further required federal contractors to certify that they implement DEI programs which the Administration believes are discriminatory and violated federal civil rights laws. Those orders are also being challenged in other cases and include “Ending Radical and Wasteful DEI Programs and Preferencing;” “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government;” and “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.”
The district court found the orders in the Maryland case to be unconstitutionally “vague” and chilled free speech. That was a victory for the litigants, including the City of Baltimore, the National Association of Diversity Officers in Higher Education, the American Association of University Professors and the Restaurant Opportunities Centers United.
In their order, the panel explained that the orders were misrepresented in their scope. Judge Pamela Harris, a Biden appointee, wrote that
“The challenged Executive Orders, on their face, are of distinctly limited scope. The Executive Orders do not purport to establish the illegality of all efforts to advance diversity, equity or inclusion, and they should not be so understood.”
Judge Harris also noted that the orders “do not authorize the termination of grants based on a grantee’s speech or activities outside the scope of the funded activities.” Likewise, she noted that the certifications only require pledges not to violate existing federal anti-discrimination laws.
Nevertheless, Judge Harris noted that the officials could enforce these orders in unconstitutional ways: “Agency enforcement actions that go beyond the Orders’ narrow scope may well raise serious First Amendment and Due Process concerns,” the judge added.
Chief Judge Albert Diaz, an Obama appointee, agreed with Harris but wanted to emphasize that the enforcement of these orders should not stray from their narrow framing: “I too reserve judgment on how the administration enforces these executive orders.”
Judge Diaz, however, went beyond that scope and engaged in a degree of editorialization on the value of DEI programs.
“Despite the vitriol now being heaped on DEI, people of good faith who work to promote diversity, equity, and inclusion deserve praise, not opprobrium. When this country embraces true diversity, it acknowledges and respects the social identity of its people. When it fosters true equity, it opens opportunities and ensures a level playing field for all. And when its policies are truly inclusive, it creates an environment and culture where everyone is respected and valued. What could be more American than that?… A country does itself no favors by scrubbing the shameful moments of its past.”
The only Trump appointee pushed back on the rhetoric of her colleagues in their defense of DEI policies. Judge Allison Rushing correctly, in my view, objected to the political dimension of such dicta.
“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. A judge’s opinion that DEI programs ‘deserve praise, not opprobrium’ should play absolutely no part in deciding this case.”
I also found the tenor of the opinion of Chief Judge Diaz to be concerning. The review of an injunction is not an invitation or license to express one’s personal view of the moral or social value of government programs. I share the concern of all three judges with how these orders will be enforced to protect free speech rights. However, we have a court system to address any such abuses if they were to arise. If there are “as applied” violations, they can be raised in the context of a specific case with the courts. In the meantime, the Supreme Court has signaled that it is losing patience with nationwide injunctions from district court judges.