The DOJ’s request came after a federal judge in Massachusetts temporarily blocked the administration from canceling about $250 million in grants to the eight states and after the First Circuit Court of Appeals upheld the order.

While Trump has not seen success in that case, which centers around Department of Education grant money and is still in an early stage, the president has seen partial success in a couple of the other roughly a dozen lawsuits challenging his executive orders aiming to quash DEI in the government and private sector.

In a lawsuit in Maryland, for example, the Fourth Circuit Court of Appeals reversed a lower court’s decision to enjoin two of Trump’s executive orders related to DEI, a milestone victory for Trump as the lawsuit proceeds.

DEI is a framework that schools, companies, local and federal governmental agencies, and other entities have adopted to promote equal treatment for minorities, but conservatives have long argued its practices can be discriminatory by improperly extending preferential treatment to them.

Trump signed a string of anti-DEI executive orders when he took office, such as one titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” delivering on one of his top campaign promises.

The orders aimed to wipe out DEI across the government by ending all programs, positions, or contracts related to it. One of Trump’s orders also directed all agencies to “combat illegal private-sector DEI,” including by launching civil investigations, terminating relevant grants, and bringing litigation where possible.

Just as President Joe Biden expanded DEI programs within the government, Trump has the authority to eliminate them. But the executive branch’s tentacles may ultimately only reach so far into the private sector, according to a lawyer at Jackson Lewis, a firm that focuses on workplace litigation.

“The Trump administration likely does not have the authority to mandate that private businesses abandon DEI policies,” lawyer Michael Lewis said during a podcast. “But what the [executive action] does is use language to really threaten potential legal action against private sector companies and really force them in many ways to either address or abandon their DEI initiatives.”

‘Vague’ language

Like the case brought by the eight states, Trump also saw a loss on Thursday in a case in Illinois involving grant money. Judge John Matthew Kennelly, a Clinton appointee, temporarily blocked the Department of Labor on Thursday from forcing grant and contract recipients to certify that they do not operate any DEI programs. The certification could subject them to hefty fines if they were later found to be implementing DEI anywhere, plaintiffs in the case said.

The judge wrote in his order that even though the DOJ argued that the certification requirement “implicates only illegal DEI programs, it has studiously declined to shed any light on what this means. The answer is anything but obvious.”

Jonathan Turley, a George Washington University law professor, observed on his website that the term “DEI” lacked definition, which could emerge as a roadblock for the president in forthcoming litigation.

“Such vague terms are likely to draw judicial scrutiny and could sweep too broadly for figures like Chief Justice Roberts,” Turley wrote. “Agencies will need to narrow and add greater clarity on these terms as they move forward with this mandate.”

Fourth Circuit success

In the case in Maryland, the mayor and city council of Baltimore as well as several groups, including the National Association of Diversity Officers in Higher Education, filed a complaint against the administration arguing that the orders did not include any definition for DEI or clarify what elements of it were legal versus illegal.

The plaintiffs said they were thrust into a state of uncertainty because of the lack of clarity about which of their federal funds they could be at risk of losing. They also alleged that withholding certain funds violated the separation of powers.

“In his crusade to erase diversity, equity, inclusion, and accessibility from our country, President Trump cannot usurp Congress’s exclusive power of the purse, nor can he silence those who disagree with him by threatening them with the loss of federal funds and other enforcement actions,” attorneys wrote in the complaint.

Judge Adam Abelson, a Biden-appointee, granted a partial preliminary injunction blocking two of Trump’s executive orders, but the Fourth Circuit Court of Appeals paused it while the lawsuit proceeds.

Two of the appellate court judges noted in their order that while they felt some attacks on DEI were unwarranted and vitriolic, Trump’s DEI directives appeared to have only narrow real-world consequence and that the president could only enforce existing federal discrimination laws. A third judge, appointed by Trump, admonished her colleagues for inserting their opinions on diversity into the order.

JUDGE TEMPORARILY BLOCKS TRUMP DEI BAN IN DEPARTMENT OF LABOR

“A judge’s opinion that DEI programs ‘deserve praise, not opprobrium’ should play absolutely no part in deciding this case,” she wrote.

Trump also saw another small win in a case in Virginia. Judge Anthony Trenga, a Bush appointee, denied a temporary restraining order request from a group of unnamed intelligence officers who were fired because they were tasked with working on DEI programs.