Following recent executive orders calling for the termination, certification and enforcement of alleged “illegal” programs around diversity, equity and inclusion, the United States District Court for the District of Maryland issued a nationwide injunction against the core elements of these executive orders issued on Jan. 20 and 21, calling them “textbook viewpoint-based discrimination.”
The preliminary injunction came in a case brought Feb. 3 by the National Association of Diversity Officers in Higher Education, the American Association of University Professors, and others.
In a 63-page decision, the federal court detailed how the executive orders violated rights protected by the First Amendment’s free speech and the Fifth Amendment’s due process. The challenged orders violated limits on “content-based” and “viewpoint-based” speech regulation by the government, whereby the government may not use its powers to tilt the public debate in a preferred direction. Moreover, the government cannot terminate contracts in retaliation for protected First Amendment activity. The court summarized its ruling:
The White House and Attorney General have made clear, through their ongoing implementation of various aspects of the J21 Order, that viewpoints and speech considered to be in favor of or supportive of DEI or DEIA are viewpoints the government wishes to punish and, apparently, attempt to extinguish. And, as the Supreme Court has made clear time and time again, the government cannot rely on the “threat of invoking legal sanctions and other means of coercion” to suppress disfavored speech.
The orders were also found to be void as impermissibly vague and thus violated the Fifth Amendment’s due process clause. Due process requires parties to know what is required of them so they can act accordingly, and clear guidance is necessary so that the government does not act in an arbitrary or discriminatory way. The court pointed out that among the vagueness problems with the orders is the undefined scope of “equity,” such that “individuals and organizations have no reasonable way to know what, if anything, they can do to bring their grants into compliance so they are not considered ‘equity-related.’” One example the court offered involved a hypothetical university grant:
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 that funding for that person’s salary be stripped as “equity-related.”
Likewise, the Certification Provision, which is intended to subject federal contractors and grantees to threats of False Claims Act liability, was held invalid. The court explained that “the clear purpose, and clear effect, of the Certification Provision is to restrict speech related to topics such as equity, inclusion, and diversity that also falls outside the scope of the federal funding.” The court went on to note that “even the government does not know what constitutes DEI-related speech that violates federal anti-discrimination laws.”
The government has filed a notice of appeal with the Fourth Circuit Court of Appeals.
As a Catholic, Jesuit institution, Marquette University remains steadfast in its commitment to serve all as a welcoming learning community that is open to people from a wide variety of backgrounds and perspectives. This commitment means working with students, faculty and staff to navigate these changes and ensuring all in our community know they are valued and supported. With heightened concerns about immigration, identity, processes and culture, Marquette University reminds students, faculty and staff about existing policies and resources in place to support those in our community who are feeling especially stressed and anxious.
Members of the Marquette community should continue to follow the university’s campus resources and guidance related to federal actions, which will be updated as necessary.
Watch Marquette Today for updates.
