In a ruling late Friday, Chief Judge Albert Diaz of the 4th U.S. Circuit Court of Appeals, along with Circuit Judges Pamela Harris and Allison Rushing, granted Donald Trump ‘s request for a stay pending appeal of a nationwide injunction that blocked the Trump administration’s plans to make diversity, equity and inclusion (DEI) initiatives illegal. As Law&Crime previously reported, U.S. District Judge Adam B. Abelson issued the injunction on Feb. 21 in the Feb. 3 lawsuit filed in Maryland by the National Association of Diversity Officers in Higher Education (NADOHE) and several other plaintiffs. At the time, Abelson found that the directives were both unconstitutionally vague and violative of the First Amendment’s free speech protections.
“Having reviewed the record, the district court’s opinion, and the parties’ briefing, we agree with the government that it has satisfied the factors for a stay” under Supreme Court precedent that lays out the factors courts should consider when granting such relief.
Although the three judges agreed in granting the stay, two of them — Diaz and Harris, both Barack Obama appointees — wrote separately that their ruling Friday should not be taken as approval of Trump’s anti-DEI efforts.
“I’m compelled to write separately to address what seems to be (at least to some) a monster in America’s closet — Diversity, Equity, and Inclusion initiatives,” Diaz wrote in a 3-page concurrence. Noting that the executive orders accuse DEI policies of being “dangerous, demeaning, and immoral race- and sex-based preferences” that “deny, discredit, and undermine the traditional American values of hard work, excellence, and individual achievement in favor of an unlawful, corrosive, and pernicious identity-based spoils system,” Diaz indicated that he believes that, in fact, the opposite is true.
From the concurrence:
[D]espite the vitriol now being heaped on DEI, people of good faith who work to promote diversity, equity, and inclusion deserve praise, not opprobrium. For when this country embraces true diversity, it acknowledges and respects the social identity of its people. When it fosters true equity, it opens opportunities and ensures a level playing field for all. And when its policies are truly inclusive, it creates an environment and culture where everyone is respected and valued. What could be more American than that?
Under the most basic tenets of the First Amendment, there should be room for open discussion and principled debate about DEI programs, and whether its corresponding values should guide admissions, hiring, scholarship, funding, or workplace and educational practices. And all Americans should be able to freely consider how to continue empowering historically disadvantaged groups, while not “[r]educ[ing]” the individuals within those groups “to an assigned racial [or sex-based] identity.”
For the entire history of the U.S., “this nation’s North Star has been the self-evident truth, ‘that all men are created equal,” Diaz wrote, citing the Declaration of Independence. “Even when we have fallen short — badly at times — we have stood up, made amends, and moved forward.”
Opining that “a country does itself no favors by scrubbing the shameful moments of its past, Diaz went on to praise DEI efforts overall.
“From boardrooms to courtrooms to operating rooms to classrooms, previously marginalized Americans are thriving in spaces long closed to them,” the judge wrote. “And we are the better for it. Yet despite this success — or because of it — we owe it to ourselves to continue forging conversations that may help us achieve that ‘more perfect Union.””
“As with most monsters in the closet, what lurks is but a mere shadow, for which the remedy is simply light,” he wrote in conclusion.
Harris, meanwhile, said that Trump’s executive orders bear very little legal weight.
“The Executive Orders do not purport to establish the illegality of all efforts to advance diversity, equity or inclusion, and they should not be so understood,” she wrote. “Instead, the so-called ‘Certification’ and ‘Enforcement Threat’ provisions apply only to conduct that violates existing federal anti-discrimination law.”
Although Harris agreed that “the government has shown the requisite likelihood that the challenged provisions do not on their face violate the First or Fifth Amendment,” she said that her vote to grant the stay “comes with a caveat.”
“What the Orders say on their face and how they are enforced are two different things,” she wrote. “Agency enforcement actions that go beyond the Orders’ narrow scope may well raise serious First Amendment and Due Process concerns, for the reasons cogently explained by the district court.”
Harris was also clear that her vote “should not be understood as agreement with the Orders’ attack on efforts to promote diversity, equity, and inclusion,” and that she agreed with Diaz that those who do good-faith work in the field of DEI deserve credit, not harsh criticism.
“I appreciate Chief Judge Diaz’s concurrence and share his sentiments,” Harris wrote.
Rushing, a Trump appointee, also wrote a separate concurrence, but her views diverged sharply from those of her colleagues.
“The judges of this panel unanimously agree that the entire substance of the preliminary injunction must be stayed, not just trimmed back in scope,” Harris wrote. “That’s because the government has made a ‘strong showing’ that it ‘is likely to succeed on the merits’ and that the district court erred in concluding otherwise.”
Although both Diaz and Harris said in their concurrences that the litigation may well reveal constitutional violations, Rushing took the opposite view, writing that “the government is likely to succeed in demonstrating that the challenged provisions of the Executive Orders — all of which are directives from the President to his officers — do not violate the First or Fifth Amendments.”
Courts, Rushing said, should consider pumping the brakes when it comes to cases about the legality of executive orders.
“We must not lose sight of the boundaries of our constitutional role and the imperative of judicial impartiality,” the wrote. “Any individual judge’s view on whether certain Executive action is good policy is not only irrelevant to fulfilling our duty to adjudicate cases and controversies according to the law, it is an impermissible consideration.”
Rushing then closed out her concurrence by taking direct aim at Diaz.
“A judge’s opinion that DEI programs ‘deserve praise, not opprobrium’ should play absolutely no part in deciding this case,” she said.
It was not immediately clear how the stay will affect the litigation in the lower court. On Friday, Abelson held an emergency status conference over the government’s compliance with his injunction, after the plaintiffs alleged that language barred by the court’s orders continues to be used by administrative agencies. In that hearing, Abelson said that it was “very concerning” the certain portions of the injunction “may not have been fully complied with by the government.”
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Law&Crime’s Colin Kalmbacher contributed to this report.
