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President Donald Trump watches as a ceremonial swearing in of Paul Atkins as chairman of the Securities and Exchange Commission, in the Oval Office of the White House, Tuesday, April 22, 2025, in Washington (AP Photo/Alex Brandon).
A federal judge in Maryland on Thursday expressed severe misgivings about the Trump administration‘s efforts to root out “diversity, equity, and inclusion” (DEI) initiatives, but insisted he had little power to change the current state of play in an ongoing legal battle.
In the underlying litigation, the National Association of Diversity Officers in Higher Education, a membership organization, won a late February injunction barring the new policies. This initial victory came when U.S. District Judge Adam B. Abelson, a Joe Biden appointee, found that the directives were both unconstitutionally vague and violative of the First Amendment’s free speech protections.
But the victory was short-lived.
On March 14, Chief Judge Albert Diaz of the 4th U.S. Circuit Court of Appeals, along with Circuit Judges Pamela Harris and Allison Rushing, granted the government’s request for a stay pending appeal.
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The plaintiffs, undeterred, then asked Abelson to vacate his original injunction, citing what the court termed “new factual developments.” This effort was in service of a bid for a new preliminary injunction.
“[T]hey believe that ‘evidence related to agencies’ interpretation and implementation of the Executive Orders’ would further support the likelihood of success on the merits of their already-asserted claims, and further that they ‘could amend their complaint to add new facial claims’ challenging the executive order provisions at issue,” the court explains. “The new ‘facial claims’ Plaintiffs state they may add in an amended complaint would be claims under the Administrative Procedures Act.”
Such an injunction would more or less reset the case – and force the Trump administration to spend several weeks requesting and litigating another stay. And, the plaintiffs argued, even the appellate panel that paused the first injunction would be amenable here.
From the plaintiff’s motion, at length:
The concurrences emphasized that their opinions spoke only to the record so far and that future developments might alter the outcome. In his concurrence, for example, Chief Judge Diaz noted he was satisfied “for now” that Defendants had met their stay burden, but explicitly “reserve[d] judgment on the extent to which the government relies on the Orders’ savings clause provisions as it enforces the Orders’ directives ” …
Similarly, in her concurrence, Judge Harris concluded “for now” that Defendants had met their burden, but offered the “caveat” that “[a]gency enforcement actions that go beyond the Orders’ narrow scope may well raise serious First Amendment and Due Process concerns, for the reasons cogently explained by” this Court.
On Thursday, in a 14-page court order, Abelson says the plaintiffs are likely to succeed on the merits in the case but simply did not bring enough to the table for him to vacate the earlier injunction.
“The problem for Plaintiffs is that although they have pointed to new evidence and claims they state they would present in an amended complaint and renewed motion for a preliminary injunction, they have not shown that any of it would materially alter the analysis of whether they are entitled to a preliminary injunction,” the judge observed.
Still, Abelson took care – and several pages – to muse about the constitutionality of the Trump administration’s anti-DEI efforts.
“This Court remains deeply troubled that the Challenged Provisions, which constitute content-based, viewpoint-discriminatory restrictions on speech (in addition to conduct), have the inherent and ineluctable effect of silencing speech that has long been, and remains, protected by the First Amendment,” the opinion reads. “And they do so through impermissibly vague directives that exacerbate the speech-chilling aspects of the Challenged Provisions.”
The judge’s order goes on, at length:
Historically, the metaphor used to describe the effect of laws that restrict speech is “chill.” The more apt metaphor here is “extinguish.” Part of the explicit purpose and effect of the Challenged Provisions is to stifle debate—to silence selected viewpoints, selected discourse—on matters of public concern. They forbid government contractors and grantees from engaging in discourse—including speech such as teaching, conferences, writing, speaking, etc.—if that discourse is “related” to “equity.” And they direct the “private sector” to “end” diversity, to “end” equity, and to “end” inclusion. “End” is not a mere “chill.” “Deter[rence]” is not a side-effect of the Challenged Provisions; their explicit goal is to “deter” not only “programs” but “principles”—i.e. ideas, concepts, values. After all, the opposite of inclusion is exclusion; the opposite of equity is inequity; and, at least in some forms, the opposite of diversity is segregation.
The judge suggests the administration set itself up for a loss at a later date because the government went far beyond merely changing enforcement priorities based on new understandings of “discrimination.”
“[T]here can be no serious question that the direct and necessary impact of those provisions—and purposeful, to the extent that matters—is to extinguish discourse throughout civil society on what makes our society diverse, the different perspectives we each bring to bear based our respective upbringing, family history, community, economic circumstances, race, national origin, gender, ability, sexual orientation, or the like,” Abelson goes on. “These executive directives seek to extinguish discourse about our shared history.”
Still, the judge said, in the interest of “judicial resources” and “the parties’ resources,” the plaintiffs’ interests are best served by reciting their arguments before the 4th Circuit in the days to come.
