Update on cases challenging certification of illegal DEI

In his first few days back in office, President Trump issued Executive Order (EO) 14173, which rescinded EO 11246 and added a new requirement that federal grantees—including federal contractors—certify they have no diversity, equity, and inclusion (DEI) programs the administration deems “illegal.” Recently, federal courts have issued a number of decisions on the constitutionality of EO 14173.

4th Circuit upheld constitutionality of EO 14173

On February 6, 2026, in National Association of Diversity Officers in Higher Education v. Trump, the U.S. 4th Circuit Court of Appeals vacated the preliminary injunction blocking enforcement of EO 14173 and EO 14151 (“Ending Radical and Wasteful Government DEI Programs and Preferencing”). The 4th Circuit had previously stayed implementation of the injunction while the government appealed the order by the federal district court. The appeals court rejected the argument that the provisions were unconstitutional under the Fifth and First Amendments, saying the order instructed federal agencies to take action only “to the maximum extent allowed by law.”

The panel rejected the plaintiffs’ argument that defendants view all DEI programs as illegal under existing antidiscrimination law, saying the certification provision doesn’t say that. As to the certification language, the court said existing federal law already demanded compliance with antidiscrimination laws but that “If the President, his subordinates or another grantor misinterprets federal antidiscrimination law, the plaintiffs ‘can challenge that interpretation in a specific enforcement action.’”