When I reflect on my time as a young field biologist, I find myself reminiscing about nightly fireside chats with coworkers and friends. It’s one of those things that feels ordinary in the moment but becomes extraordinary when viewed through the lens of time. To spend all of that time connecting through conversation with my peers in a world illuminated by embers and devoid of distractions is unbelievably special and something that I will cherish forever.
Since going to law school, the frequency of my fireside chats has decreased. But several months ago, I participated in a Zoom call with many lawyers that somehow sparked the unique sense of purpose that always accompanied my fireside chats. The call was about vagueness.
How could vagueness spark purpose? On Feb. 21, 2025, a District Court judge issued a nationwide, preliminary injunction preventing the Trump administration from implementing two recently issued executive orders on diversity, equity and inclusion (DEI or DEIA when also referencing “accessibility”) using the legal principle of “void for vagueness.”
Executive orders to end DEI
The executive orders titled Ending Radical and Wasteful Government DEI Programs and Preferencing and Ending Illegal Discrimination and Restoring Merit-Based Opportunity both attempted to frame DEI as inherently unlawful. They both directed agencies to “excise references to DEI and DEIA principles, under whatever name they may appear,” “terminate, to the maximum extent allowed by law, all DEI, DEIA and ‘environmental justice’ offices and positions,” and encourage “the private sector to end illegal DEI discrimination and preferences” through the development of a strategic enforcement plan in coordination with the attorney general.
As part of the proposed strategic enforcement plans, the executive orders specifically instructed each agency to “include in every contract or grant award … a term requiring the contractual counterparty or grant recipient to agree that its compliance in all respects with all applicable federal anti-discrimination laws is material to the government’s payment decisions for purposes of section 3729(b)(4) of title 31, United States Code [False Claims Act].” Under the False Claims Act, a person is liable for civil penalties when they knowingly make a false statement when fulfilling a federal government obligation or receiving a payment. So, in other words, if you receive federal money and then promote DEI in a way that conflicts with the Trump administration’s interpretation of anti-discrimination laws, you may face stiff financial penalties from the attorney general.
Such a broad and looming threat of enforcement against any organization or individual for operating or promoting DEI while receiving federal funds casts a large shadow over DEI work in the U.S. and has resulted in many organizations abandoning their efforts altogether. The U.S. Department of Education even started an official government website to “report illegal discriminatory practices at institutions of learning,” using an unambiguous URL—enddei.ed.gov (Note: The End DEI Portal is currently disabled pending the final verdict in a separate legal case—National Education Association v. US Department of Education).
Initial legal challenge
Following the executive orders, lawyers for the National Association of Diversity Officers in Higher Education and others said, “Not so fast,” and the court agreed. Without clearly defining key terms like “DEI,” “programs promoting DEI,” “illegal discrimination” or “equity-related,” the court concluded that the executive orders “infringe on core constitutional protections, and that the status quo must be maintained while plaintiffs and the government litigate the claims asserted in this case.”
Those core constitutional protections are the First and Fifth Amendments to the United States Constitution. Again, the court found that the inherent vagueness of the government’s plan to deter DEI programs combined with “the threat of private sector enforcement actions in furtherance of that deterrence constitutes a content-and-viewpoint-discriminatory restriction of speech” in violation of the Free Speech Clause of the First Amendment.
The court further expanded that logic to the Due Process Clause of the Fifth Amendment. A core element of due process is fair notice, or the notion that individuals have a clear articulation of what is expected of them, so they may have the opportunity to act accordingly. To emphasize that point, the court ruling quoted James Madison in the Federalist Papers: “Without an assurance that the laws supply fair notice, so much else of the Constitution risks becoming only a ‘parchment barrier’ against arbitrary power.” Accordingly, the court found that the “plaintiffs have shown a likelihood of success on their claim that the Termination Provision [of the executive order] is void for vagueness under the Fifth Amendment.”
The plot thickens
On March 14, 2025, the United States Court of Appeals for the Fourth Circuit lifted the nationwide injunction after an emergency appeal from the government claimed that the injunction went too far. That means enforcement of the executive orders by federal agencies could resume while the case moves forward in the courts.
While the preliminary injunction and its subsequent suspension are an intriguing development, they are far from the end of this story. All of the actions to date are in response to a pretrial motion and emergency appeal. The merits of the case have yet to be litigated. This was a point emphasized in a concurring opinion of the Appeals Court ruling that stated, “The government has shown a sufficient likelihood of success to warrant a stay until we can hear and decide its appeal.”
Given the significance of the issues involved in this case, the legal nuance, the questions of constitutionality, and the already divided courts, it is likely this case will eventually reach the Supreme Court. Currently, the case remains active in the U.S. Court of Appeals for the Fourth Circuit after the U.S. District Court for the District of Maryland denied a request for a renewed preliminary injunction based on new factual developments. Despite denying the request, the District Court made sure to express its viewpoints on the merits of the case:
This Court remains of the view that Plaintiffs have shown a strong likelihood of success on the merits of their facial free speech and vagueness claims, as this Court previously explained. The Challenged Provisions forbid government contractors and grantees from engaging in “equity-related” work and from “promoting DEI” in ways the administration may consider to violate antidiscrimination laws; they demand that the “private sector” “end . . . DEI” and threaten “strategic enforcement” to effectuate the “end[ing]” of “DEI”; and they threaten contractors and grantees with enforcement actions with the explicit purpose of “deter[ring]” such “programs or principles.” This Court remains deeply troubled that the Challenged Provisions, which constitute content-based, viewpoint-discriminatory restrictions on speech (in addition to conduct), have the inherent and ineluctable effect of silencing speech that has long been, and remains, protected by the First Amendment. And they do so through impermissibly vague directives that exacerbate the speech-chilling aspects of the Challenged Provisions.
Historically, the metaphor used to describe the effect of laws that restrict speech
is “chill.” The more apt metaphor here is “extinguish.” Part of the explicit purpose and effect of the Challenged Provisions is to stifle debate—to silence selected viewpoints, selected discourse—on matters of public concern. They forbid government contractors and grantees from engaging in discourse—including speech such as teaching, conferences, writing, speaking, etc.—if that discourse is “related” to “equity.” And they direct the “private sector” to “end” diversity, to “end” equity, and to “end” inclusion. “End” is not a mere “chill.” “Deter[rence]” is not a side-effect of the Challenged Provisions; their explicit goal is to “deter” not only “programs” but “principles”—i.e. ideas, concepts, values. After all, the opposite of inclusion is exclusion; the opposite of equity is inequity; and, at least in some forms, the opposite of diversity is segregation.
The role of TWS
The Wildlife Society will continue to watch this case and the several other high-profile legal battles around the Trump administration’s executive orders, as they have the potential to disrupt the legal landscape around DEI and impact the work of our organization and organizational units. For example, TWS has agreed to comply with all federal anti-discrimination laws as consistent with the above-referenced executive orders, but it remains unclear what that now entails.
Would a program to raise greater awareness of wildlife resources and opportunities rise to the level of illegal discrimination under the administration’s executive orders? What about efforts to create a more welcoming profession through community-focused initiatives like TWS’ Women of Wildlife, Student Development Working Group and Out in the Field? What about articles published in The Wildlife Professional, sessions at our conference or the presence of TWS’ DEI Vision?
Whether any of these activities reach the threshold of prompting government legal action for operating “programs promoting DEI” remains an open question. These programs were not established to support illegal preferencing, nor are they exclusionary in nature. Rather, TWS is promoting the growth of our profession, supporting our diverse membership and providing greater opportunities to advance the mission of TWS.
We do not believe that these actions violate federal anti-discrimination laws, with or without the executive orders. However, we will continue to revise and update our programs for compliance, as necessary, consistent with court precedent and any detailed guidance provided by the administration. For now, TWS encourages our members and organization units to follow the below guidance, which was originally reported in the National Law Review, and ensure that their programs:
- Are broadly inclusive and open to all;
- Do not include targets or goals based on race, gender, or any other protected characteristic;
- Do not tie compensation or other rewards to the achievement of DEIA objectives or goals;
- Do not provide benefits or awards (including scholarships, mentoring programs, travel grants, etc.) based on protected characteristics;
- Do not require organizations to consider diverse groups of candidates for hiring or promotion; and
- Do not require board membership to meet specific diversity goals.
I can’t even begin to speculate how this case will end, but the depth of advocacy and knowledge on both sides is impressive and the already historic nature of the case is clear. In listening to the lawyers discuss this case, it wasn’t just about legal interpretation. There was a sense of urgency and passion underlying their words that had me feeling nostalgic about my old fireside chats. These lawyers are putting everything they have into defending their positions, and it reminds me of the strong purpose that our community has always brought to the work of wildlife conservation. Know that every day there is a litany of lawyers litigating with the same zeal of wildlife professionals and know that TWS is and will continue to be welcome to all.
The Fourth Circuit Court of Appeals is scheduled to hear oral arguments in the case on Sept. 11, 2025.
Article by Cameron J. Kovach
