Court Blocks Trump's Anti-Diversity Fatwa

Woke whacks back.

Photo by Claudio Schwarz on Unsplash

On January 20, President Trump signed an executive order purporting to end “Radical And Wasteful Government DEI Programs And Preferencing.”

“The Biden Administration forced illegal and immoral discrimination programs, going by the name ‘diversity, equity, and inclusion’ (DEI), into virtually all aspects of the Federal Government, in areas ranging from airline safety to the military,” he blustered, instructing his minions to “terminate, to the maximum extent allowed by law … all ‘equity action plans,’ ‘equity’ actions, initiatives, or programs, ‘equity-related’ grants or contracts; and all DEI or DEIA performance requirements for employees, contractors, or grantees.”

On the 21st, he signed another order “Ending Illegal Discrimination And Restoring Merit-Based Opportunity” by rooting out “dangerous, demeaning, and immoral race- and sex-based preferences under the guise of so-called ‘diversity, equity, and inclusion’ (DEI) or ‘diversity, equity, inclusion, and accessibility’ (DEIA) that can violate the civil-rights laws of this Nation.”

With no apparent irony, he claimed that diversity initiatives clearly violate civil rights law, while simultaneously repealing four executive orders and one presidential memorandum that operationalized these initiatives over the past four years of the Biden administration. Why those “illegal” orders were never challenged in court and enjoined by a judge is left as an exercise for the reader.

Trump purported to bar federal grant money being used for “DEI,” and prompted the cancellation of millions of dollars contracts for the crime of being “woke.” But unlike the Biden orders, Trump’s did draw legal challenges and, as of Friday, have been blocked by a federal judge.

Get up, stand up, stand up for your rights!

The orders were challenged by a diverse set of plaintiffs: academics from the National Association of Diversity Officers in Higher Education and the American Association of University Professors; workers via the Restaurant Opportunities Centers United, a non-profit that advocates for non-discrimination in the food service industry; and the Mayor and City Council of Baltimore, Maryland. The parties made the same arguments about the Spending Clause that triggered temporary restraining orders in Rhode Island and DC. But they also added a First Amendment claim, since the “J20” and “J21” orders penalize federal grant recipients for disfavored speech.

“In his crusade to erase diversity, equity, inclusion, and accessibility from our country, President Trump cannot usurp Congress’s exclusive power of the purse, nor can he silence those who disagree with him by threatening them with the loss of federal funds and other enforcement actions,” they argued.

And like The Crusades, this one comes at the point of spear: The J21 order instructs the Attorney General to menace the private sector with civil rights enforcement actions for excessive diversity and to “identify up to nine potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, State and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars.”

On Friday, a federal judge in Baltimore agreed that these orders are blatantly illegal, issuing a nationwide preliminary injunction that will likely serve as a model in the fight to stop the Trump administration using the cudgel of federal tax dollars to penalize disfavored speech.

It’s the First Amendment, Stupid!

US District Judge Adam Abelson ruled that Trump’s executive orders violate the First Amendment by discriminating based on the content and viewpoint of protected speech — i.e., the ability to express that diversity, equity, and inclusion are important values in the workplace. When the government targets speech based on whether or not it agrees with the content of the message, such laws and regulations are presumptively unconstitutional and can only be justified if the government proves that the restriction is narrowly tailored to serve a compelling state interest.

Viewpoint discrimination is a subset of content-based speech regulation. As the Supreme Court put it in the 1995 case Rosenberger v. Rector and Visitors of Univ. of Va., viewpoint discrimination occurs when the government’s regulation of speech is “based on the specific motivating ideology or the opinion or perspective of the speaker.”

Under Trump’s orders, federal contracts are being terminated because their granting language contains words like “diversity” and “climate justice” — classic content-based speech discrimination. Worse still, the president orders federal contractors and grantees to certify that they have no DEI programs at all, not just pursuant to the specific contracts at issue. That discriminates on the basis of viewpoint by illegally conditioning the receipt of government funds on how recipients behave in the marketplace of ideas incidental (or unrelated) to the contract itself.

Applying the Rosenberger rule, the court barred the federal government from terminating a contract or grant because of the recipient’s speech on matters of public concern.

What are you even talking about, weirdo?

But Judge Abelson wasn’t done reading the administration for filth. He also held that the orders themselves are so nebulous as to be “void for vagueness.” Under this legal doctrine, if a law is so unclear that you could break it by accident, it violates the Fifth Amendment’s due process requirement.

“First, the vagueness of the term ‘equity-related grants or contracts’ invites arbitrary and discriminatory enforcement,” the judge wrote. “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.”

Part of the reason for this lack of clarity is that Trump went out of his way to delete all the prior executive orders that defined terms like “equity” and “diversity.” Normal statutes and presidential orders define their terms. Trump just Sharpie-ed out all references to them, declared them illegal by fiat, and threatened anyone who dared mention them again. As the court observed, that’s hardly a rubric for grantees to know what not to do if they don’t want to get their federal funding cut:

The possibilities are almost endless, and many are pernicious. If an elementary school receives Department of Education funding for technology access, and a teacher uses a computer to teach the history of Jim Crow laws, does that risk the grant being deemed “equity-related” and the school being stripped of funding? If a road-construction grant is used to fill potholes in a low-income neighborhood instead of a wealthy neighborhood, does that render it “equity-related”? If a university grant helps fund the salary of a staff person who then helps teach college students about sexual harassment and the language of consent, would the funding for that person’s salary be stripped as “equity-related”? If a business with a grant from the Small Business Administration conducts a recruiting session at a historically Black college or university, could the business be stripped of the grant on that basis?

The government replied with the tautology that only “illegal” DEI is barred. And by way of explanation they gestured vaguely in the direction of Students for Fair Admissions v. Harvard, the Supreme Court case that struck down race-based admission preferences in higher education (although not at the nation’s service academies).

The court had zero time for this argument, scoffing that “even the government does not know what constitutes DEI-related speech that violates federal anti-discrimination laws.”

Defendants assert that because the Orders only prohibit “illegal” conduct, Plaintiffs’ claims of chilled speech are objectively unreasonable because they assume Defendants will enforce the Executive Orders against constitutional conduct and in bad faith. But as discussed above, the problem is not that Plaintiffs assume Defendants will enforce the Orders in bad faith, but rather that the Challenged Provisions strip Plaintiffs of the ability to know what the government might now consider lawful or unlawful.

If grant recipients don’t know exactly what conduct violates the law, they’re going to err on the side of caution and refrain from engaging in otherwise-protected speech so as not to run afoul of the law — particularly when, as here, the president directed the DOJ to find scalps for civil enforcement actions with treble financial penalties. That’s the classic chilling effect on speech that the First Amendment does not permit. And it’s obviously not an accident.

In everything from the spending freeze that was repealed — WINK WINK — to the status of the DOGE committee, which is simultaneously the ONE DEPARTMENT TO RULE THEM ALL and at the same time merely a group of outside advisors to the president, the Trump administration has tried to have everything both ways at once. They deploy strategic ambiguity to do as much illegal shit as they can get away with, while attempting to persuade federal judges to give them the benefit of the doubt that they’re coloring inside the lines.

But Judge Abelson wasn’t buying it. He issued a preliminary injunction barring the administration from enforcing the anti-woke executive orders. As of today, the government may not cancel or pause any grant or contract, require any grantee or contractor to certify that they are 100 percent woke-free, or carry out their threat to enforce the order under the False Claims Act.

Naturally Elon Musk called for Judge Abelson’s impeachment. But with Trump’s goons lashing out at everyone from trans kids to Comcast, this First Amendment injunction is not likely to be the last.