Quick Hits
- On February 6, 2026, the Fourth Circuit held that the plaintiffs’ facial challenges in National Association of Diversity Officers in Higher Education v. Trump to President Trump’s anti-DEI executive orders (EOs) were unlikely to succeed, but the court did not validate the administration’s enforcement practices, did not endorse its interpretation of anti-discrimination law, and did not define what constitutes “unlawful DEI.”
- The certification provision in EO 14173 applicable to federal contractors and grant recipients targets only programs that “violate any applicable Federal anti-discrimination laws,” not DEI programming generally.
- The court expressly preserved the right of employers and other affected parties to challenge specific agency enforcement actions.
The plaintiffs, including the National Association of Diversity Officers in Higher Education, the American Association of University Professors, and the City of Baltimore, had argued that the executive orders were unconstitutionally vague and violated the First Amendment of the U.S. Constitution. The Fourth Circuit disagreed, finding that the plaintiffs’ facial challenges were unlikely to succeed. The court’s narrow ruling, however, did not validate the administration’s enforcement practices, does not clarify what the administration considers “unlawful DEI,” and expressly preserved the right of employers and other affected parties to bring as-applied challenges to specific federal agency actions taken to enforce these executive orders.
The court’s decision focused narrowly on whether the text of two provisions, the termination provision in EO 14151 and the certification provision in EO 14173, is facially unconstitutional.
The termination provision directs all federal agencies to “terminate, to the maximum extent allowed by law, all DEI, DEIA, and ‘environmental justice’ offices and positions,” as well as “all ‘equity action plans,’ ‘equity’ actions, initiatives, or programs, ‘equity-related’ grants or contracts.”
The certification provision requires agencies to include in every contract or grant award term requiring the recipient to (1) certify compliance with all federal anti-discrimination laws, and (2) “certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.” Noncompliance with these certifications could expose recipients to potential False Claims Act liability and other results, such as loss of funding.
The Fourth Circuit concluded that both provisions, as written, survive constitutional scrutiny. Regarding the termination provision, the court characterized it as an internal executive matter—a policy directive from the president to his subordinates to terminate DEI-related grants and contracts. The court held that a more lenient vagueness standard applies in funding contexts than in criminal or regulatory schemes. Because the government is acting as a “patron” distributing funds rather than as a “sovereign” imposing penalties, courts afford greater latitude for imprecision. Regarding the certification provision, the court found that it requires only that grant recipients and contractors certify compliance with existing federal anti-discrimination laws and not any new legal standard. Because the First Amendment does not confer a right to violate anti-discrimination laws, the court held that the certification provision does not facially violate the Constitution.
The court’s ruling turned on the distinction between facial and as-applied constitutional challenges. A facial challenge asks whether a provision is unconstitutional in all or a substantial number of its applications—a high bar. An as-applied challenge targets how a provision is enforced in specific circumstances. Here, the court addressed only the former.
Notably, the court took no position on whether the administration’s interpretation of anti-discrimination law is correct, did not validate any specific enforcement actions as lawful, and did not find what DEI programs are lawful versus unlawful. The court made clear that if the administration or agency actors misinterpret federal anti-discrimination law, for example, by treating lawful DEI programming as illegal, affected parties can challenge those decisions “in a specific enforcement action.” As-applied challenges remain fully available. Notably, Chief Judge Albert Diaz wrote separately to underscore this point, expressing concern that “the evidence cited by plaintiffs, their amici, and the district court suggests a more sinister story: important programs terminated by keyword; valuable grants gutted in the dark.” His message: “Follow the law. Continue your critical work. Keep the faith. And depend on the Constitution.”
Next Steps
This decision is not judicial endorsement of the administration’s enforcement practices or a signal that aggressive anti-DEI enforcement has been “greenlit.” The court addressed only whether the text of the executive orders is facially unconstitutional. It did not validate the administration’s interpretation of anti-discrimination law, did not approve any specific enforcement actions, and did not define what constitutes “unlawful DEI.” Employers that have been uncertain about the status of their DEI programs are in largely the same position they were before this ruling.
Employers may want to evaluate whether their DEI programs comply with existing federal anti-discrimination statutes laws and document that compliance. Because the certification provision requires certification of compliance with existing law, employers with federal contracts or grants may be called upon to demonstrate that their programs do not discriminate on the basis of race, color, religion, sex, national origin, or other characteristics protected by federal anti-discrimination laws.
The Fourth Circuit’s decision is not the final word on challenges to the administration’s anti-DEI executive orders. Other courts are considering similar challenges, and as-applied challenges to specific agency enforcement actions are likely to follow. Employers may want to monitor how federal agencies are interpreting and enforcing the executive orders.
For more information on DEI enforcement, please join us for our upcoming webinar, “DEI Programs and Enforcement: What Employers Can Expect in 2026,” which will take place on February 24, 2026, from 2:00 p.m. to 3:00 p.m. EST. The speakers, T. Scott Kelly and Nonnie L. Shivers, will discuss the latest updates from the U.S. Equal Employment Opportunity Commission (EEOC), among other things. Register here.
Ogletree Deakins’ Diversity, Equity, and Inclusion Compliance Practice Group, Governmental Affairs Practice Group, Government Contracting and Reporting Practice Group, and Workforce Analytics and Compliance Practice Group will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance, Employment Law, Governmental Affairs, Government Contracting and Reporting, Higher Education, and Workforce Analytics and Compliance blogs as additional information becomes available.
This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ Administration Resource Hub.
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