President Donald Trump addresses a joint session of Congress on Capitol Hill in Washington, Tuesday, March 4, 2025 (AP Photo/Alex Brandon).
A federal judge expressed serious concerns on Friday about the Trump administration potentially not following a court order that prohibits the government from interfering with “diversity, equity, and inclusion” (DEI) programs.
During an emergency motion for a status conference, U.S. District Judge Adam B. Abelson, appointed by President Joe Biden, aimed to streamline arguments but allowed some discussion about the matter prompting the sudden hearing.
That issue, according to the plaintiffs, is that language barred by the court’s orders continues to be used by administrative agencies.
An attorney representing the National Association of Diversity Officers in Higher Education, the main plaintiffs in the case, pointed out a contract draft between the Department of Housing and Urban Development (HUD) and Baltimore City that suggests non-compliance. The contract requires the city to confirm that it does not support DEI programs that violate anti-discrimination laws. A similar clause was found in a contract with San Francisco.
A lawyer for the Department of Justice acknowledged the problem.
“HUD is working toward remedying this particular provision,” the DOJ attorney told the court. “Baltimore is not going to be required to sign that in order to receive its funding.”
While the government attorney did not put up a fight over whether the language in question violates the court’s orders, she suggested that perhaps the cities had been privy to language culled from a “template” that should not have been used. Specifically, she said San Francisco might have inadvertently been sent a template while saying she was unaware of what Baltimore had been sent because the filing had just appeared on the court docket right before the hearing.
The attorney went on to stress that no additional direction, in the way of another court order, was necessary to enforce compliance.
While the court seemed to accept the mea culpa, the judge said he wanted to make clear that Baltimore was going to be able to enter into the contract and still obtain the funds from the agency.
Again, the government proffered compliance.
“HUD is going to be reissuing a contract that doesn’t include this provision,” the DOJ lawyer reiterated. “HUD can reissue the contract or do whatever it is necessary.”
Back at the dais, the plaintiffs’ attorney was gracious.
“Baltimore will be thrilled to have that from the Department of Justice,” the group’s lawyer said — while also sounding a note of caution.
The plaintiffs’ attorney noted that HUD Secretary Scott Turner shared the disputed contract template on Thursday. In fact, in a post on X (formerly Twitter), Turner shared the template with the relevant language singled out by traditional yellow highlight.
In the underlying litigation, the membership organization complained about executive orders in which President Donald Trump sought to terminate contracts related to DEI and certify that no new contracts would fund any kind of DEI programs. The group also took issue with a directive to the U.S. Attorney General to “deter” such “programs or principles” and to consider launching “civil compliance” investigations to effectuate such deterrence.
In a series of court orders, Abelson barred each of the three anti-DEI directives.
On Feb. 21, the judge issued a preliminary nationwide injunction finding the challenged provisions “abridge the freedom of speech” and are “unconstitutionally vague on their face.” On Feb. 25, the government filed a motion to stay the court’s order pending appeal. On Feb. 28, the plaintiffs in the case urged the judge to stick to his guns. On March 3, the court denied the motion to stay with an order containing a lengthy lecture about the First Amendment.
On March 10, in two subsequent rulings — a clarified injunction and a memorandum opinion — the judge stressed that the injunction is truly nationwide and applies to the government writ large.
During Friday’s hearing, the plaintiffs took the opportunity to ask the DOJ lawyer to admit, on the record, that the government would not stand by the anti-DEI contract language. The judge, in turn, asked the government lawyer if she would attest to that.
This time, a bit of recalcitrance emerged.
“This certification provision is unenforceable,” the DOJ attorney said — while adding that the real-time application of the court’s order will not happen overnight in a federal government with some “two million employees” and was “just not realistic.” She went on to say the plaintiffs might believe “the government is one unified whole in the abstract” but that such an understanding is off base.
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“Me representing that on this call will not do what the counterparties need,” the government lawyer said. “We’re asking for some break here.”
The judge followed up to say it seemed like the government agreed that the anti-DEI language on contracts issued after the injunction would not be enforced — but stressed that his orders not only cover the enforcement directive but also the certification directive.
Abelson said it was “very concerning” the certification portion of the injunction “may not have been fully complied with by the government.”
The status conference ended with the judge agreeing with the plaintiffs that a shorter briefing schedule is appropriate over the certification issue. A scheduling order is forthcoming, the judge said.
