On DEI, a Victory

Executive power is one oft-challenged constitutional provision, among many of our day. This decision says, "Yes, the Constitution means exactly what it says."

Score one for constitutional government and healthcare freedom from academic ideological oppression of the professions.

https://www.powerlineblog.com/archives/2026/02/on-dei-a-victory.php

On DEI, a Victory

At the beginning of his administration, President Trump issued two executive orders directing federal agencies to end DEI programs in federal grant and contract processes. Those orders were challenged by plaintiffs that included the City of Baltimore, the American Association of University Professors and the National Association of Diversity Officers in Higher Education. Those plaintiffs sought, and obtained, a preliminary injunction in the district court, preventing implementation of the President’s orders.

Today the Fourth Circuit Court of Appeals, in a decision by two Obama appointees and a Trump appointee, reversed the district court and allowed the Trump administration to implement the executive orders. As usual, the decision was concerned largely with standing and ripeness issues. When Chief Judge Albert Diaz got to the merits, the court’s reasoning was straightforward:

The President may determine his policy priorities and instruct his agents to make funding decisions based on them. See generally 2 C.F.R. § 200.340(a)(4) (2025). President Trump has decided that equity isn’t a priority in his administration and so has directed his subordinates to terminate funding that supports equity-related projects to the maximum extent allowed by law. Whether that’s sound policy or not isn’t our call. We ask only whether the policy is unconstitutionally vague for funding recipients.

The court then rejected the plaintiffs’ First Amendment argument:

The First Amendment precludes the government from “abridging the freedom of speech.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015) (quoting U.S. Const. amend. I). So generally, “the government may not regulate speech based on its substantive content or the message it conveys.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828 (1995).

But this case arises in the funding context. There, as we’ve explained, the government “has wide latitude to set spending priorities” and “to ch[oose] to fund one activity to the exclusion of the other.” Finley, 524 U.S. at 588 (citation modified). But again, the latitude isn’t limitless. …

To start, to make out a First Amendment claim, “[p]laintiffs must show that the certification requirement impermissibly restricts their ability to engage in protected speech.” Nat’l Urban League, 783 F. Supp. 3d at 102. But the Provision [the portion of the executive order at issue] requires only that plaintiffs certify compliance with federal antidiscrimination laws, which the First Amendment doesn’t confer a right to violate. See S.F. AIDS Found., 786 F. Supp. 3d at 1222 (“[W]hile the First Amendment may protect speech that advocates for violation of law, it does not protect activities that directly violate antidiscrimination law.”). Put another way, plaintiffs have no protectable speech interest in operating, and “no constitutional right to operate[,] DEI programs that violate federal antidiscrimination law.” Nat’l Urban League, 783 F. Supp. 3d at 102.

This wasn’t a close case. Is there any serious question that the Executive Branch, in directing grants, can adhere to the priorities of the Executive Branch? And how can it be controversial to require grant recipients to certify that they are not violating federal antidiscrimination law?

And yet, these plaintiffs won in the trial court, and were supported on appeal by an array of amici that included 18 states and a number of private employers, along with other organizations–the establishment, in effect. Basically, these parties argued for the proposition that the federal government must adhere to liberal ideology, no matter what the electorate might vote for, and no matter what the Constitution and federal law may provide. That is, indeed, the Democratic Party’s position, and it was expressed starkly in this case.

That view has been defeated, at least for the moment, and the Executive Branch has been freed to do what Americans voted for. It should be noted, however, that liberals, through their frivolous lawsuit and with the connivance of a Democratic Party judge, delayed for a year implementation of the Trump administration’s requirement that federal grantees not engage in illegal discrimination.