Some short excerpts from Friday’s long decision by Judge Timothy Kelly (D.D.C.) in National Urban League v. Trump:
After taking office this January, President Trump promptly issued three executive orders addressing diversity, equity, and inclusion. Some provisions are internal to the government, directing Executive Branch officials to create certain lists or produce certain reports to advise the President. Others reach into the private sector—for example, by requiring grantees and contractors to certify that they do not operate DEI programs that violate federal antidiscrimination law. And still others straddle the line by directing agencies to terminate some federal grants and contracts, an intra-governmental directive that affects other entities.
Plaintiffs are three nonprofit organizations that incorporate DEI into their work. They also contract with and receive funding from several federal agencies. Concerned that President Trump’s executive orders will prevent them from fulfilling their organizational missions, Plaintiffs sued to enjoin a host of agencies and officials from enforcing the orders. They moved for a preliminary injunction over a week later, arguing that eight provisions of the orders are unconstitutional under the First or Fifth Amendment—or both. More specifically, Plaintiffs contend that the challenged provisions are impermissibly vague, chill protected speech, and amount to unlawful viewpoint discrimination.
But Plaintiffs have not shown that they are likely to succeed on any of those claims, so the extraordinary relief of a preliminary injunction is unwarranted. For half the challenged provisions, Plaintiffs fail to establish a prerequisite to success on the merits: standing. Presidential directives to subordinates that inflict no concrete harm on private parties—or at least not on these parties—do not present a justiciable case or controversy. And for the remaining provisions, Plaintiffs’ constitutional claims falter for various reasons. Two throughlines explain most of them. The government need not subsidize the exercise of constitutional rights to avoid infringing them, and the Constitution does not provide a right to violate federal antidiscrimination law. And those pressure points are even harder to overcome for Plaintiffs, who bring facial rather than as-applied challenges.
The motion before the Court is not about whether DEI policies, however defined in a given context, are good public policy. Nor is it about whether specific DEI initiatives comply with antidiscrimination law. Instead, it is about whether Plaintiffs have shown that they are entitled to a preliminary injunction prohibiting enforcement of the executive orders at issue. Because they are not likely to prevail on the merits, the Court will deny the motion.
The court begins by summarizing the Executive Orders:
Within two days of his inauguration, President Trump … issu[ed] three executive orders about “gender ideology” and “diversity, equity, and inclusion.” See Ending Radical and Wasteful Government DEI Programs and Preferencing, 90 Fed. Reg. 8339 (codified Jan. 29, 2025) (“Government DEI Order”); Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, 90 Fed. Reg. 8615 (codified Jan. 30, 2025) (“Gender Ideology Order”); Ending Illegal Discrimination and Restoring Merit-Based Opportunity, 90 Fed. Reg. 8633 (codified Jan. 31, 2025) (“Illegal Discrimination Order”).
The first order purportedly aims to eliminate “illegal and immoral discrimination” that has “infiltrat[ed]” “virtually all aspects of the Federal Government.” To implement that directive, the Director of the Office of Management and Budget must “coordinate the termination of all discriminatory programs, including illegal DEI … mandates, policies, programs, preferences, and activities in the Federal Government.” Part of that implementation plan, moreover, calls on agencies to “terminate, to the maximum extent allowed by law,” the following: (1) “all DEI, DEIA and ‘environmental justice’ offices and positions”; (2) “all ‘equity action plans,’ ‘equity’ actions, initiatives, or programs,” and “‘equity-related’ grants or contracts”; and (3) “all DEI or DEIA performance requirements for employees, contractors, or grantees.” Id. § 2(b)(i) (“Equity Termination Provision”). This order also directs agencies to give the OMB Director a list of all “Federal grantees who received Federal funding to provide or advance DEI, DEIA, or ‘environmental justice’ programs, services, or activities since January 20, 2021.” Id. § 2(b)(ii)(C) (“List Provision”). And the order states that its implementation must be “consistent with applicable law.”
Issued the same day, the second order addresses “gender ideology,” defined as the displacement of “the biological category of sex with an ever-shifting concept of self-assessed gender identity.” Those “who deny the biological reality of sex,” the order begins, have allowed “men to self-identify as women and gain access to intimate single-sex spaces and activities designed for women.” And because the Trump administration believes that “eradicat[ing] the biological reality of sex … depriv[es]” women “of their dignity, safety, and well-being,” the order gives agencies several marching orders. Two are relevant here. First, agencies “shall take all necessary steps, as permitted by law, to end the Federal funding of gender ideology.” Id. § 3(e) (“Gender Funding Termination Provision”). And second, they must “assess grant conditions and grantee preferences and ensure grant funds” from the federal government “do not promote gender ideology.” Id. § 3(g) (“Promoting Gender Ideology Provision”). As with the first order, implementation must be “consistent with applicable law.”
The third order returns to DEI more generally. It explains that both the federal government and private sector have adopted “race- and sex-based preferences under the guise of” DEI in ways “that can violate the civil-rights laws of this Nation.” Such “[i]llegal DEI” policies, the order says, violate those “longstanding” civil-rights laws and “undermine our national unity.” So the order emphasizes that the “Federal Government” will enforce these laws by “ending illegal preferences and discrimination.” To that end, the order aims to “terminat[e] illegal discrimination in the Federal Government” through several means. Each agency must include two terms in “every contract or grant award”: one requiring the counterparty “to certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws,” and another requiring it to agree that compliance with those laws “is material to the government’s payment decisions for purposes of” the False Claims Act. See id. § 3(b)(iv)(A), (B) (“Certification Provision”). Further, the OMB Director must “[e]xcise references to DEI and DEIA principles” from “Federal acquisition, contracting, grants, and financial assistance procedures.” Id. § 3(c)(ii) (“Contract Terms Provision”). And that director must eliminate “all ‘diversity,’ ‘equity,’ ‘equitable decision-making,’ ‘equitable deployment of financial and technical assistance,’ ‘advancing equity,’ and like mandates, requirements, programs, or activities, as appropriate.” Id. § 3(c)(iii) (“Government Mandates Provision”).
Finally, the Illegal Discrimination Order seeks to “encourag[e] the private sector to end illegal DEI discrimination” too. The central plank of this section directs the Attorney General to create a “report” that will “further inform and advise” President Trump so that he “may formulate appropriate and effective civil-rights policy.” Id. § 4(b) (“Report Provision”). Generally, this report must include “recommendations for enforcing Federal civil-rights laws.” And specifically, it must “contain a proposed strategic enforcement plan identifying,” among other things, the “most egregious and discriminatory DEI practitioners in each sector of concern”; “specific steps or measures to deter DEI programs or principles … that constitute illegal discrimination or preferences”; a list from each agency flagging “up to nine potential civil compliance investigations” of large private-sector entities; “[o]ther strategies to encourage the private sector to end illegal DEI discrimination … and comply with all Federal civil-rights laws”; and “potentially appropriate” litigation. Again, all parts of the order must “be implemented consistent with applicable law.”
Thus, across the three executive orders, eight provisions are relevant to Plaintiffs’ request for preliminary relief. The Court refers to them collectively as the “Challenged Provisions.” To recap, they are: Government DEI Order § 2(b)(i) (“Equity Termination Provision”) and § 2(b)(ii)(c) (“List Provision”); Gender Ideology Order § 3(e) (“Gender Funding Termination Provision”) and § 3(g) (“Promoting Gender Ideology Provision”); and Illegal Discrimination Order § 3(b)(iv)(A), (B) (“Certification Provision”), § 3(c)(ii) (“Contract Terms Provision”), § 3(c)(iii) (“Government Mandates Provision”), and § 4(b) (“Report Provision”).
Less than a week after President Trump issued the orders, OMB told agencies to pause “agency grant, loan, and other financial assistance programs.” Each agency had to analyze all its financial-assistance programs to identify “programs, projects, and activities that” any of President Trump’s executive orders might “implicate[ ].” Meanwhile, OMB instructed the agencies to “temporarily pause”—”to the extent permissible under applicable law”—”all activities related to” such financial assistance for, among other things, “DEI” and “woke gender ideology.”
The Attorney General also chimed in. In early February, she issued a memo about “ending illegal DEI and DEIA discrimination and preferences.” The Department of Justice, the memo explained, “is committed to enforcing all federal civil rights laws.” And the Illegal Discrimination Order made “clear that policies relating to” DEI “violate the text and spirit of our longstanding Federal civil-rights laws.” So DOJ will “investigate, eliminate, and penalize illegal DEI and DEIA preferences, mandates, policies, programs, and activities in the private sector and in educational institutions that receive federal funds.” And consistent with the executive order, DOJ will create a report “containing recommendations for enforcing federal civil-rights laws” and “encourag[ing] the private sector to end illegal discrimination.” …
The court concluded that some of the provisions (the List Provision, the Report Provision, the Government Mandates Provision, and the Contract Terms provision) don’t sufficiently directly injure plaintiffs, and plaintiffs therefore lack standing to challenge those provisions. And as to the other provisions, the court concluded that plaintiffs’ facial vagueness and First Amendment challenges are likely to fail. Here’s an excerpt of the First Amendment analysis:
The First Amendment prohibits governments from “abridging the freedom of speech.” Sometimes that right requires the government to “accommodate expression.” But the Supreme Court has “reject[ed] the notion that First Amendment rights are somehow not fully realized unless they are subsidized by the State.”
Put slightly differently, “even where the Constitution prohibits coercive governmental interference with specific individual rights, it does not confer an entitlement to such funds as may be necessary to realize all the advantages of that freedom.” That is why the “refusal to fund protected activity, without more, cannot be equated with the imposition of a ‘penalty’ on that activity.” And for that reason, the typical “recourse” for a “party” that “objects to a condition on the receipt of federal funding” is “to decline the funds.”
At the same time, though, “a funding condition can result in an unconstitutional burden on First Amendment rights.” That “line is hardly clear.” But the key consideration—or at least one of them—is whether the condition “specif[ies] the activities” the government “wants to subsidize” or if it “seek[s] to leverage funding to regulate speech outside the contours of the program itself.”
Plaintiffs bring only a facial First Amendment challenge, and that choice dictates how much constitutional invalidity they must show…. Plaintiffs may prevail on their facial claim by showing that “a substantial number of” the Challenged Provisions'”applications are unconstitutional, judged in relation to [their] plainly legitimate sweep.” That translates to an inquiry that first assesses the scope of the Challenged Provisions—i.e., “[w]hat activities, by what actors,” do they “regulate”?—and then analyzes which “applications violate the First Amendment” before “measur[ing]” those “against the rest.” … Facial invalidation “destroys some good along with the bad,” so it is justified only when the “unconstitutional applications” are “realistic” rather than “fanciful.” And those impermissible applications “must be substantially disproportionate to” the lawful ones because only a “lopsided ratio” warrants this “strong medicine.”
Begin with the Equity Termination, Promoting Gender Ideology, and Gender Funding Termination Provisions, which move together within the First Amendment analysis. By their terms, these provisions tell agencies what to do with federal funds and contracts. Under the first, agencies must terminate equity-related grants and contracts in accordance with the law. And the latter two target the federal funding of gender ideology.
These provisions, then, do not reach beyond the scope of the grant or fund at issue. The directives do not tell agencies to cancel contracts with entities doing equity-related work outside their contracts or to ensure that federal funds do not support grantees promoting gender ideology with non-federal funds. In this way, the provisions do not “prohibit[ ] the recipient from engaging in the protected conduct outside the scope of the federally funded program” or contract. The provisions, in other words, are part of a government effort “to fund one activity to the exclusion of another”—or to contract for certain purposes to the exclusion of others—which does not amount to “discriminat[ion] on the basis of viewpoint.” That result follows from the principle that “refus[ing] to fund protected activity, without more,” does not “penal[ize]” the “activity.”
Because these provisions do not on their face restrict speech outside the scope of the federal funds or contract, they do “not run afoul of the First Amendment.” Or more specifically, most of their applications will not. Consider an entity that receives four federal grants. It uses one to fund a program advancing the idea that transgender women should be able to participate in women’s sports. The other three grants, though, support projects far afield from transgender rights or gender ideology more generally.
Directed to “end the Federal funding of gender ideology” as “permitted by law” and ensure that such funds do not “promote gender ideology,” an agency would presumably terminate the first grant or tell the recipient that it will do so unless the recipient stops using the funds for that purpose. But because the other grants are not advancing gender ideology in any way, the gender-ideology provisions are no basis—at least in most of their applications—to cut those grants. Said another way, because the provisions do not “effectively prohibit[ ]” or otherwise restrict “the recipient from engaging in the protected conduct outside the scope of the federal[ ] fund[s],” they do not “place[ ]” a constitutionally problematic “condition on the recipient of the subsidy.” And the same result holds for the Equity Termination Provision: its text does not say that a contractor with four contracts, only one of which is equity-related, will lose the other three by advocating for equity principles outside the scope of those contracts.
Now to the other side of the ledger. Plaintiffs must make two showings about the unconstitutional applications of these funding-focused provisions: those applications are “realistic” rather than “fanciful,” and “their number” is “substantially disproportionate to [their] lawful sweep.” But Plaintiffs do not clearly describe what those applications look like. The bulk of their First Amendment challenge focuses on the Certification Provision—which the Court discusses below—and the Report and List Provisions—which Plaintiffs likely lack standing to challenge….
Between their briefing and oral argument, Plaintiffs point to two examples that they say show that the funding-focused provisions reach beyond the scope of the federal funds and contracts. In a meeting with an “HHS contractor” in mid-February, the “program officer” told the AIDS Foundation that “the term ‘gender’ must be replaced with ‘sex’ in … program materials.” That officer also said that the materials must no longer contain “reference to ‘gender-affirming’ care,” and that “LBG” must replace the acronym “LBGTQIA.”
At the hearing, however, Plaintiffs asserted that HRSA told the AIDS Foundation at this meeting “to remove words not just in federally funded programs, but on all their publications.” The supporting declaration is ambiguous on that front; it describes a meeting “about a program under which [the AIDS Foundation] is a subcontractor,” suggesting that the directive focused on that federal program. But even if HRSA did tell the AIDS Foundation to alter its materials outside the scope of federally funded programs, this example hardly shows that the “unconstitutional applications” of these provisions “substantially outweigh [their] constitutional ones.” At most, an HRSA representative aggressively—and incorrectly—interpreted the gender-ideology provisions to say that recipients of federal funds cannot promote gender ideology, no matter whether they use federal funds to do so. But that does not establish the “lopsided ratio” justifying the “strong medicine” of facial invalidation.
Nor does the example of HUD “cancel[ing] funding” for one of the Housing Alliance’s “partner organizations.” According to Plaintiffs, HUD invoked the Government DEI Order—presumably, the Equity Termination Provision—to terminate the grant “based on ‘key words’ in [the] organization’s ‘website or Linked Profile.'”So, Plaintiffs reason, that provision reaches speech “both inside and outside of the federal government”—i.e., “purely private speech” untethered to federal grants or contracts.
But this example, even taken together with the HRSA directive to the AIDS Foundation, is too slender a reed to support facial invalidation. To start, while the cover email from HUD references “key words,” the termination notice itself explains that the partner organization’s “operations and performance in connection with the subject awards” did not comply with the Government DEI Order. So it is unclear whether HUD terminated the awards because of the organization’s conduct outside the scope of the awards or because its conduct under the awards made them “equity-related.” But even if the former, this example remains at best just a second instance of an agency going beyond the text of a Challenged Provision. After all, the Equity Termination Provision says nothing about whether the grant recipient’s activities are equity-related; it asks whether the grant is equity-related. So conduct beyond the scope of the federal funding should, under the provision’s plain text, not warrant termination. And Plaintiffs “may not leverag[e] a few alleged unconstitutional applications” of these provisions “into a ruling invalidating [them] in all [their] applications.”
To sum up, the text of these three provisions points to a heartland of constitutional applications. And on this record, Plaintiffs have not shown that “unconstitutional applications substantially outweigh” their “plainly legitimate sweep.”
The Certification Provision is not facially invalid either despite Plaintiffs’ three-pronged attack on it…. [T]he Certification Provision does cover conduct “outside the scope of” federal grants and funds. It requires grant recipients and contractual counterparties to certify that they do “not operate any programs”—rather than just federally funded ones—”promoting DEI that violate” federal antidiscrimination law….
[But f]or the Certification Provision to violate the First Amendment, Plaintiffs must show that the certification requirement impermissibly restricts their ability to engage in protected speech. Yet neither Plaintiffs nor anyone else have a First Amendment right to violate federal antidiscrimination law. To the contrary, “the Supreme Court has clearly held that the First Amendment does not protect the very act of discriminating on the basis of race.” More generally, the right to speak freely provides no shield for “private individuals or institutions” that “engage in discrimination” that violates federal law. So Plaintiffs cannot “assert an alleged first amendment right to be free of the strictures of” federal antidiscrimination law “and also claim the right to continued federal funding” and contracts….
Resisting that conclusion, Plaintiffs insist that the Certification Provision does not really mean what it says. On their reading, the provision “purports to make organizations that ‘promot[e] DEI’ ineligible for government contracts and grants.” But Plaintiffs offer no reason to disregard the Certification Provision’s text for their preferred reading.
On its face, all the provision requires is a certification that the grant recipient or contractual counterparty will not violate the federal antidiscrimination laws that they had to comply with long before President Trump issued the executive orders. It does not “purport to establish the illegality of all efforts to advance [DEI],” and it “should not be so understood.” And according to Plaintiffs, they “do not engage in any unlawful discrimination.” If Plaintiffs worry that this administration takes a broader view of what counts as illegal discrimination, that is a concern with the interpretation of the underlying federal antidiscrimination law—which Plaintiffs do not challenge—rather than the Certification Provision….
Pardis Gheibi represents the government.
