May 19, 2025
Dear NADOHE Members,
Our work with Democracy Forward continues. As noted in prior communications, the nationwide preliminary injunction issued by the district court was temporarily stayed by the U.S. Court of Appeals for the Fourth Circuit on March 14, pending the outcome of the Government’s appeal of the injunction. Those appeal proceedings are now well underway. On May 8, Democracy Forward filed a brief on behalf of NADOHE and our co-plantiffs arguing that the district court properly issued its injunction. We have been heartened to see that three amicus curiae (or “friend of the court”) briefs have now been filed with the court supporting NADOHE’s position. Amicus briefs are opportunities by non-parties to share additional factual or legal arguments that may be helpful for the court to consider.
One amicus brief was filed by the attorneys general of 18 states. The brief argues that DEIA practices are grounded in and integral to complying with federal antidiscrimination laws, and also that DEIA policies and practices are “well-recognized, lawful methods of achieving critical social and economic benefits for amici states, their residents, and their businesses,” enhancing innovation and efficiency, promoting the capacity to remain competitive in a globalized economy, undergirding critical advances in health care, and helping to ensure that all students have the same opportunities to learn. The brief also argues that states are harmed by the Executive Orders’ “vague and unclear directives,” both because many state agencies are themselves federal contractors and grantees that have received notices under the EOs “delaying, freezing, and threatening termination of critical funding,” and because many private entities in the those states “must decide whether, in the face of these vague terms and threats, to continue to provide services that amici states’ residents rely on.”
A second amicus brief was filed by the ACLU of Maryland, Public Justice Center, and Union of Concerned Scientists. This brief argues that the purpose of DEIA is to ensure merit-based opportunity, and that the EOs portray all efforts to promote diversity, equity, inclusion and accessibility as unlawful as a “pretext needed to crack down on activity and expression that advance equity,” regardless of the legality of that expression. The brief cites the impact of the EOs in leading to “unprecedented terminations of federally-funded science … just for including words related to minority identities, or even for just using words like ‘equity’ or ‘women.’” The brief also argues that the EOs have been used to “coerce curricular and programming changes in schools and colleges nationwide,” have led to the termination of disfavored but lawful federally funded charitable activities, and have chilled private sector diversity-related activities, undermining efforts to build a more equitable America.
The third amicus brief was filed by private employers in the hospitality, energy, financial, consumer products, manufacturing, legal, consulting, marketing and communications, and publishing sectors that believe their DEI work is essential to their business interests and mission delivery and to their ability to ensure a fair, inclusive and nondiscriminatory workplace; the brief was also signed by several trade associations and industry groups on behalf of their members. These groups include the American Sustainable Business Council, the Interfaith Center on Corporate Responsibility, the Investor Advocates for Social Justice, the SC Small Business Chamber of Commerce, and the Urban Justice Center. The brief argues that DEI policies and practices support important business objectives, and that forcing an end to DEI work would expose employers to additional litigation risk. The brief also argues that there is no conflict between DEI and “merit,” and that the EO violates the First Amendment and is unconstitutionally vague.
In combination, these briefs help illustrate the far-reaching harms of the EOs, even beyond the named plaintiffs in the litigation. Each brief calls for the appeals court to restore the district court’s injunction against enforcement of the anti-DEI EOs. The appeals court docket does not reflect any amicus briefs filed in support of the Trump administration.
Thank you for your continued support of NADOHE.
In solidarity,
Paulette Granberry Russell, J.D.
President and CEO
NADOHE