Fourth Circuit Allows DEI-Related Executive Orders to Proceed

Court vacates preliminary injunction, finding plaintiffs failed to meet standard for facial invalidation

Published on Feb. 10, 2026

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The U.S. Court of Appeals for the Fourth Circuit has vacated a nationwide preliminary injunction that had temporarily blocked key provisions of two Executive Orders issued by President Trump aimed at addressing what it characterized as 'illegal' diversity, equity, and inclusion ('DEI') programs implemented by federal grantees and contractors. The three-judge panel remanded the case to the District of Maryland for further proceedings, concluding that the plaintiffs had not met the demanding standard required for facial invalidation at the preliminary injunction stage.

Why it matters

While the decision does not result in any immediate changes, as the lower court's injunction had already been stayed, it does suggest that President Trump's Executive Orders will survive judicial scrutiny with respect to facial challenges. As such, employers - particularly government contractors and grantees - need to be mindful that the enforcement risk posed by their DEI programs will remain at least for now.

The details

The Fourth Circuit began its analysis by reviewing Article III jurisdiction. While the court agreed that the plaintiffs had standing to challenge the Termination and Certification Provisions, it held that they subsequently lacked standing to challenge the Enforcement Threat Provision. Turning to the merits, the court emphasized that the plaintiffs were bringing facial challenges, a form of relief that requires showing a law is unconstitutional in all, or at least a substantial number, of its applications. The court rejected the plaintiffs' Fifth Amendment vagueness challenge and their First Amendment viewpoint discrimination challenge, holding that the provisions were lawful.

  • On February 6, 2026, the U.S. Court of Appeals for the Fourth Circuit issued its decision.
  • On February 3, 2025, the plaintiffs filed suit against President Trump, Attorney General Bondi and other federal agencies and agency heads.
  • On February 21, 2025, the U.S. District Court for the District of Maryland granted a nationwide preliminary injunction that paused enforcement of several provisions of both Executive Orders.
  • On March 14, 2025, the Fourth Circuit granted a stay of the preliminary injunction pending appeal, allowing implementation of the Executive Orders to continue until the Fourth Circuit issued its final ruling.

The players

National Association of Diversity Officers in Higher Education

One of the plaintiffs in the lawsuit challenging President Trump's Executive Orders.

American Association of University Professors

One of the plaintiffs in the lawsuit challenging President Trump's Executive Orders.

Restaurant Opportunities Centers United

One of the plaintiffs in the lawsuit challenging President Trump's Executive Orders.

Mayor and City Council of Baltimore

One of the plaintiffs in the lawsuit challenging President Trump's Executive Orders.

Albert Diaz

Chief Judge of the U.S. Court of Appeals for the Fourth Circuit, who wrote the opinion in this case.

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What they’re saying

“The Fourth Circuit began its analysis reviewing Article III jurisdiction. While the Fourth Circuit agreed that Plaintiffs had standing to challenge the Termination and Certification Provisions, it held that they subsequently lacked standing to challenge the Enforcement Threat Provision.”

— Fourth Circuit Opinion (National Law Review)

“Plaintiffs brought a Fifth Amendment challenge arguing that the Termination Provision was unconstitutionally vague because it failed to define what constitutes 'equity-related' grants or contracts. The Fourth Circuit rejected that argument as the provision only 'instructs the President's subordinates to act, and then only 'to the maximum extent allowed by law.'”

— Fourth Circuit Opinion (National Law Review)

“In its First Amendment challenge, Plaintiffs contended that the Certification Provision impermissibly discriminated based on viewpoint and chilled protected speech by targeting DEI programs. The Court disagreed, holding that the provision required only certification of compliance with existing federal anti-discrimination laws which are laws that Plaintiffs had no constitutional right to violate and with which they already had to be in compliance.”

— Fourth Circuit Opinion (National Law Review)

What’s next

The case has been remanded to the District of Maryland for further proceedings, where the plaintiffs' challenges to the Executive Orders are expected to continue, likely focusing on specific enforcement actions rather than facial constitutional claims.

The takeaway

This decision suggests that President Trump's DEI-related Executive Orders will likely withstand facial constitutional challenges, at least for now. However, the litigation is expected to continue, with future challenges potentially focusing on how the orders are implemented and enforced by federal agencies.