National Association of Diversity Officers in Higher Education et al v. Donald J. Trump et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
NATIONAL ASSOCIATION OF
DIVERSITY OFFICERS IN HIGHER
EDUCATION, et al.,
Plaintiffs,
v.
DONALD J. TRUMP, et al.,
Defendants.
Case No. 26-cv-1532-ABA
MEMORANDUM OPINION
In January 2025, the President ordered federal agencies to include in “every
contract or grant award” a term certifying that the grant recipient “does not operate any
programs promoting DEI that violate any applicable Federal anti-discrimination laws.”
Exec. Order No. 14,173 § 3(b)(iv), 90 Fed. Reg. 8633 (Jan. 21, 2025). The Fourth Circuit
held that the provision did not facially violate the First Amendment because it “requires
only that plaintiffs certify compliance with federal antidiscrimination laws, which the
First Amendment doesn’t confer a right to violate.” Nat’l Ass’n of Diversity Officers in
Higher Educ. v. Trump, 167 F.4th 86, 103 (4th Cir. 2026) (“NADOHE I”).
In March 2026, the President issued a narrower executive order, entitled
“Addressing DEI Discrimination by Federal Contractors.” Exec. Order No. 14,398, 91
Fed. Reg. 16,147 (Mar. 26, 2026) (hereinafter, the “Order” or the “Contractors Order”),
directing that government contracts include language prohibiting contractors from
engaging in “disparate treatment based on race or ethnicity” in recruitment,
employment, contracting, program participation, or allocation of resources. Id. Under
well-settled federal law, “disparate treatment” refers to “intentional discrimination.”
E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 771 (2015).
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Plaintiffs are five organizations whose membership includes government
contractors. They assert that the Contractors Order is unconstitutional on its face and
seek a preliminary injunction against it as well as a stay of a memorandum by the
Federal Acquisition Regulatory (“FAR”) Council implementing it (the “FAR Memo”).
But “existing federal law already demands” that federal contractors not engage in
intentional discrimination, “and plaintiffs have not challenged existing law as
viewpoint-discriminatory or as over or underinclusive.” NADOHE I, 167 F.4th at 104.
And Plaintiffs press a First Amendment overbreadth challenge, which requires Plaintiffs
to establish that the Contractors Order is “unconstitutional in all of its applications” or
“lacks any plainly legitimate sweep.” Id. at 100 (quoting Edgar v. Haines, 2 F.4th 298,
310 (4th Cir. 2021)).
Because Plaintiffs have not made that showing, and have not shown a likelihood
of success on their Fifth Amendment claim or irreparable harm warranting preliminary
relief against the FAR Memo, their motion for a preliminary injunction and stay (ECF
No. 28) will be denied.
I. 	BACKGROUND1
Plaintiffs are five associations whose members include government contractors
and/or individuals who work for entities that hold government contracts. Three of the
Plaintiffs represent members who are employed in higher education: the National
Association of Diversity Officers in Higher Education (“NADOHE”), the American
1 For purposes of Plaintiffs’ motion for a preliminary injunction, the Court does not
assume the complaint’s allegations are true, but rather must decide whether Plaintiffs
have established a likelihood of success on the merits. See Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008).
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Association of University Professors, and the United Academics of Maryland-University
of Maryland, College Park. ECF No. 26 ¶¶ 8–10. The other two Plaintiffs are nonprofit
trade associations comprised of contractors in the construction business: the National
Association of Minority Contractors and the National Association of Minority
Contractors, DMV Chapter. Id. ¶¶ 11–12.
Plaintiffs primarily challenge the March 26, 2026, Executive Order entitled
“Addressing DEI Discrimination by Federal Contractors.” Exec. Order No. 14,398. The
Contractors Order (§ 3) directs “executive departments and agencies” to ensure that
agreements with contractors and subcontractors include certain language related to
diversity, equity and inclusion (“DEI”) within 30 days, “to the extent permitted by law.”
The Order provides model contractual language that must be included in government
contracts:
In connection with the performance of work under this
contract, 	[the 	contractor/appropriate 	party 	(contractor)]
agrees as follows:
1. 	The 	contractor 	will 	not 	engage 	in 	any 	racially
discriminatory 	DEI 	activities, 	as 	defined 	in
section 2 of the Executive Order of March 26, 2026
(Addressing DEI Discrimination by Federal Contractors);
2. 	The contractor will furnish all information and reports,
including 	providing 	access 	to 	books, 	records, 	and
accounts, as required by the contracting agency pursuant
to the Executive Order of March 26, 2026 (Addressing DEI
Discrimination by Federal Contractors), for purposes of
ascertaining compliance with this clause;
3. 	In the event of the contractor’s or a subcontractor’s
noncompliance with this clause, this contract may be
canceled, terminated, or suspended in whole or in part,
and the contractor or subcontractor may be declared
ineligible for further Government contracts.
Id. (emphasis added).
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The Contractors Order, in turn, defines “racially discriminatory DEI activities” as
follows:
For the purposes of this order, “racially discriminatory
DEI activities” means disparate treatment based on
race or ethnicity in the recruitment, employment (e.g.,
hiring, promotions), contracting (e.g., vendor agreements),
program participation, or allocation or deployment of an
entity’s resources.
Contractors Order § 2(a) (emphasis added). Thus, the specific contractual prohibition
imposed by the Contractors Order is a prohibition against engaging in “disparate
treatment based on race or ethnicity” in recruitment, employment, contracting, program
participation, or allocation or deployment of resources.
The Contractors Order specifies penalties that may be levied against
noncompliant contractors. Id. § 4. Among these penalties, the Contractors Order directs
the Attorney General to “consider whether to bring actions under the False Claims Act
against any contractors or subcontractors that violate” the provisions of the required
contractual language. Id. § 4(d)(i).
Plaintiffs also challenge the FAR Council’s implementation of the Contractors
Order. The FAR Council consists of the Administrator for Federal Procurement Policy,
the Administrator of General Services, the Secretary of Defense, and the Administrator
of National Aeronautics and Space. 41 U.S.C. § 1302(b). It exists to coordinate and
maintain procurement policy and regulations across the federal government. Id.
§§ 1302(a), 1303. On April 17, 2026, the FAR Council issued guidance concerning the
Contractors Order that provided model contractual language and dates for
implementation. ECF No. 26 ¶¶ 119–20; see also Memorandum on Agency
Implementation of Executive Order 14398, Addressing DEI Discrimination by Federal
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Contractors, Federal Acquisition Regulation Council (Apr. 17, 2026),
https://perma.cc/YH8M-SHZ4 (hereinafter, the “Memo” or the “FAR Memo”). The FAR
Memo states that “agencies must . . . [m]odify existing contracts” to comply with the
Contractors Order “by July 24, 2026.” FAR Memo at 2. The government later stipulated
to delay initiating any False Claims Act enforcement actions related to the FAR Memo or
Contractors Order until August 7, 2026. ECF No. 29-1. The FAR Memo also includes
model contract language that is identical to the language provided in Section 3 of the
Contractors Order (quoted in relevant part above). FAR Memo at 5–9; see also ECF No.
26 ¶ 121.
Plaintiffs contend that they and their members are being harmed by the
Contractors Order and FAR Memo. Along with their motion for a preliminary
injunction, Plaintiffs have included numerous member declarations attesting to
concerns regarding lost work or canceled contracts related to the new required
contractual language and/or its chilling effect. See, e.g., ECF No. 28-3 ¶ 31 (declaration
of NADOHE’s president and CEO attesting that she has “had conversations with many
of NADOHE’s individual members who, because of the Contractors Order, are changing
or considering changing their own expression, or they fear they will risk facing adverse
employment consequences or endanger their institutions’ federal contracts” and is
aware of “multiple NADOHE members who fear that using words like ‘diversity’ or
‘equity’ will be considered ‘racially discriminatory DEI activities.”).
Plaintiffs’ amended complaint asserts seven counts. In Counts I and II, Plaintiffs
claim that the Contractors Order violates the First Amendment on its face because it is
overbroad, discriminates on the basis of content, and imposes unconstitutional
conditions. ECF No. 26 ¶¶ 189–226. Count III asserts an ultra vires claim challenging
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the False Claims Act enforcement provision of the Contractors Order on the ground that
“[n]o source of law authorizes” the President to direct such enforcement activities
(though Plaintiffs do not separately rely on Count III as a basis for the preliminary relief
sought in the pending motion). Id. ¶¶ 227–35. In Count IV, Plaintiffs allege that the
Contractors Order violates the Due Process Clause of the Fifth Amendment because it is
too vague. Id. ¶¶ 236–44. In Counts V, VI, and VII, Plaintiffs argue that the FAR Memo
violates the Administrative Procedure Act (“APA”) because it is arbitrary and capricious,
unconstitutional, and did not comport with required procedures. Id. ¶¶ 245–75.
Plaintiffs request that the Court preliminarily enjoin the Contractors Order as
unconstitutional and stay or enjoin the FAR Memo under the APA. ECF No. 28-1 at 39.2
That motion is fully briefed. ECF Nos. 32, 35. The Court held a hearing on August 5,
2026.
II. 	STANDARD OF REVIEW
A preliminary injunction is a form of equitable relief intended to prevent
irreparable harm while a lawsuit remains pending. League of Women Voters of N.C. v.
North Carolina, 769 F.3d 224, 236 (4th Cir. 2014). To obtain a preliminary injunction,
plaintiffs must establish that: (1) they are likely to succeed on the merits; (2) they are
likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of
equities tips in their favor; and (4) an injunction is in the public interest. See Winter,
555 U.S. at 20; League of Women Voters of N.C., 769 F.3d at 236; Am. Fed’n of State,
Cnty. & Mun. Emps. v. Soc. Sec. Admin., 172 F.4th 361, 366 (4th Cir. 2026) (en banc).
2 Citations to docket filings refer to the page numbers generated by CM/ECF, which may
differ from the pagination used by the parties.
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The third and fourth factors merge when, as here, the government is the opposing party.
See Nken v. Holder, 556 U.S. 418, 435 (2009). The same factors govern a request to stay
agency action under 5 U.S.C. § 705. Casa de Md., Inc. v. Wolf, 486 F. Supp. 3d 928,
949–50 (D. Md. 2020). A plaintiff must satisfy all four requirements to obtain
preliminary relief. See Am. Fed’n of State, Cnty. & Mun. Emps., 172 F.4th at 366.
III. 	DISCUSSION
Plaintiffs have not shown a likelihood of success on the merits of their
constitutional claims against the Contractors Order for the same reasons as those the
Fourth Circuit articulated in NADOHE I. Defendants do not dispute Plaintiffs’ standing
to challenge the Contractors Order for purposes of this motion, and the Court
independently concludes that Plaintiffs have shown a substantial likelihood of
establishing standing. See n.3, infra. But on the First Amendment claim, the Order’s
operative phrase—“disparate treatment based on race or ethnicity”—has a settled
antidiscrimination-law meaning that materially narrows the provision’s reach, and
Plaintiffs have not shown that unconstitutional applications are substantially
disproportionate to the Order’s lawful sweep. Nor have Plaintiffs shown that the Order
is impermissibly vague in violation of the Fifth Amendment, because it provides
adequate notice of the proscribed conduct. Finally, whatever the ultimate merits of
Plaintiffs’ APA claims, Plaintiffs have not shown that they are suffering irreparable harm
attributable to the FAR Memo sufficient to warrant preliminary relief.
A. 	First Amendment
i. 	Overbreadth
The First Amendment prohibits the federal government from “abridging the
freedom of speech.” U.S. Const., amend. I. As Plaintiffs confirmed at the hearing, their
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First Amendment challenge is a facial one. ECF No. 44 at 10–11. A plaintiff bringing a
facial challenge “normally ‘must establish that no set of circumstances exists under
which the [law] would be valid.’” United States v. Hansen, 599 U.S. 762, 769 (2023)
(quoting United States v. Salerno, 481 U.S. 739, 745 (1987)) (emphasis added in
Hansen). But that requirement is somewhat relaxed when a plaintiff brings a First
Amendment overbreadth challenge. “[T]he overbreadth doctrine instructs courts ‘to
hold [government action] facially unconstitutional even though it has lawful
applications, and even at the behest of someone to whom the statute can be lawfully
applied.’” United States v. Arthur, 160 F.4th 597, 606 (4th Cir. 2025) (quoting Hansen,
599 U.S. at 769). The reason for this difference is the chilling effect that an overbroad
restriction may have on speech. See Hansen, 599 U.S. at 770 (“Overbroad laws ‘may
deter or “chill” constitutionally protected speech,’ and if would-be speakers remain
silent, society will lose their contributions to the ‘marketplace of ideas.’”) (quoting
Virginia v. Hicks, 539 U.S. 113, 119 (2003)). Accordingly, to succeed in an overbreadth
challenge and “justify facial invalidation,” a plaintiff must show that “a law’s
unconstitutional applications [are] realistic, not fanciful, and their number must be
substantially disproportionate to the statute’s lawful sweep.” Id.
A typical overbreadth analysis proceeds in three steps. The first step is to
“construe the challenged statute” to determine what activity it actually prohibits. United
States v. Williams, 553 U.S. 285, 293 (2008). The second step is to “determine whether,
so construed, the statute ‘[prohibits] a substantial amount of protected expressive
activity.’” United States v. Miselis, 972 F.3d 518, 531 (4th Cir. 2020) (quoting Williams,
553 U.S. at 297)). That is, a court asks whether the law’s unconstitutional applications
are “substantially disproportionate to the statute’s lawful sweep.” Hansen, 599 U.S. at
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770. “[A]t this step, the court must consider whether the proscribed speech falls within
one of the few categories of unprotected speech.” Arthur, 160 F.4th at 606. “Finally, if
the statute proves ‘impermissibly overbroad,’” a court “must assess whether ‘the
unconstitutional portion’ is ‘severable’ from the remainder; if so, only that portion ‘is to
be invalidated.’” Miselis, 972 F.3d at 531 (quoting New York v. Ferber, 458 U.S. 747,
769 n.24 (1982)).
Applying these standards, Plaintiffs have not demonstrated a likelihood of
success as to their overbreadth challenge because the Contractors Order does not
prohibit a “substantially disproportionate” amount of constitutionally protected speech.
See Hansen, 599 U.S. at 770.3
In NADOHE I, the Fourth Circuit held that the “Certification Provision” of one of
the challenged Orders in that case was not overbroad. 167 F.4th at 102–04. That
provision, as noted above, required agencies to include in “every contract or grant award
. . . [a] term requiring [the] counterparty or recipient to certify that it does not operate
any programs promoting DEI that violate any applicable Federal anti-discrimination
laws.” Id. at 94 (quoting Exec. Order No. 14,173). The Fourth Circuit held that this
requirement was not overbroad because it “requires only that plaintiffs certify
3 Defendants have not contested that Plaintiffs have standing to challenge the
Contractors Order, at least for the purposes of this motion. In any event, Plaintiffs have
shown a substantial likelihood of Article III standing at this stage. In NADOHE I, the
Fourth Circuit held that NADOHE and AAUP had organizational and associational
standing to challenge the earlier Certification Provision because the provision forced
them and their members to choose between altering their activities, risking
consequences under the certification, or forgoing federal funds or contracts. 167 F.4th at
97–100. Plaintiffs submit declarations here describing materially similar injuries arising
from a mandatory clause in covered federal contracts. See, e.g., ECF No. 28-3 ¶¶ 15, 22–
33.
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compliance with federal antidiscrimination laws, which the First Amendment doesn’t
confer a right to violate,” especially because “existing federal law already demands such
compliance, and plaintiffs have not challenged existing law as viewpoint-discriminatory
or as over or underinclusive.” Id. at 103–04.
The Contractors Order here is not overbroad for the same reasons. The model
contractual language in the Contractors Order does not require compliance with federal
antidiscrimination laws expressly, but it does so impliedly—and with sufficient clarity to
render implausible Plaintiffs’ facial overbreadth challenge. It requires contractors to
refrain from engaging in “racially discriminatory DEI activities.” Contractors Order § 3.
If that were the full contours of the contractual prohibition, that may very well have run
afoul of the First Amendment, because “racially discriminatory DEI activities” is far
from self-explanatory. What one person considers “DEI activities” may bear little
resemblance to another person’s notion. Indeed, an ample swath of the types of speech
that Plaintiffs are concerned would be deterred by the Contractors Order likely would
constitute constitutionally protected speech. See, e.g., ECF No. 28-1 (stating that
Plaintiffs wish to engage in “courses or . . . research efforts on topics relating to race,
ethnicity, diversity, equity, or inclusion” and “[p]ublishing materials relating to
improving diversity, inclusion, and equity,” among other activities).
But Plaintiffs’ facial overbreadth challenge runs aground on the rest of the
sentence: “The contractor will not engage in any racially discriminatory DEI activities,
as defined in section 2 of the Executive Order of March 26, 2026.” Contractors
Order § 3 (emphasis added). And that provision states that “‘racially discriminatory DEI
activities’ means disparate treatment based on race or ethnicity in the
recruitment, employment (e.g., hiring, promotions), contracting (e.g., vendor
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agreements), program participation, or allocation or deployment of an entity’s
resources.” Contractors Order § 2(a) (emphasis added).
“Disparate treatment” is a common legal term essentially synonymous with
unlawful intentional discrimination. “Disparate-treatment cases present the most easily
understood type of discrimination, and occur where an employer has treated a
particular person less favorably than others because of a protected trait.” Ricci v.
DeStefano, 557 U.S. 557, 577 (2009) (cleaned up, citations omitted)). “A disparate-
treatment plaintiff must establish ‘that the defendant had a discriminatory intent or
motive’ for taking a job-related [or other] action.” Id. (quoting Watson v. Fort Worth
Bank & Tr., 487 U.S. 977, 986 (1988)); see also E.E.O.C. v. Abercrombie & Fitch Stores,
Inc., 575 U.S. 768, 771 (2015) (“Title VII of the Civil Rights Act of 1964 . . . prohibits two
categories of employment practices. . . . These two proscriptions [are] often referred to
as the ‘disparate treatment’ (or ‘intentional discrimination’) provision and the ‘disparate
impact’ provision.”). As with the Executive Orders at issue in NADOHE I, then, the
Contractors Order only prohibits contractors from engaging in conduct that is already
prohibited by federal law: intentional discrimination on the basis of race or ethnicity.
Accordingly, the Contractors Order will not silence a substantially disproportionate
amount of protected speech and thus is not unconstitutionally overbroad.
Plaintiffs contend that the Contractors Order differs significantly from the Order
at issue in NADOHE I by not explicitly invoking federal antidiscrimination law. They
note that the term “disparate treatment,” while it may have a well-known legal
definition, is not defined in the Contractors Order itself and therefore must be
understood through the plain meaning of the words “disparate” and “treatment”—
which, according to Plaintiffs, “suggest treating things differently.” ECF No. 35 at 11; see
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also ECF No. 28-1 at 20–23. Under this definition, Plaintiffs argue, the Contractors
Order “sweeps in an extraordinary amount of protected speech and association” because
it “purports to reach nearly all speech and association that touches race or ethnicity and
results in disparate ‘allocation or deployment of an entity’s resources’—including
‘recruitment,’ ‘contracting,’ and other protected programs—if such expression relates to
federal contract work.” ECF No. 28-1 at 21. Plaintiffs provide several examples of
expression or associative conduct that they argue a lay person might consider to
constitute “disparate treatment,” such as recruitment “designed to ensure that qualified
non-white applicants have an opportunity to apply,” “trainings and . . . other efforts” to
address racism in workplace environments, and/or scientific study of diseases that have
“disparate negative health outcomes for particular races.” Id. at 22–23.
This argument is unpersuasive. Particularly in the context of a facial challenge,
the Court is not required to ignore the standard legal definition of “disparate treatment”
as Plaintiffs suggest. Legal terms of art are generally given their established legal
meaning. See McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 342 (1991) (“‘[S]eaman’
is a maritime term of art. In the absence of contrary indication, we assume that when a
statute uses such a term, Congress intended it to have its established meaning.”); United
States ex rel. Schutte v. SuperValu Inc., 598 U.S. 739, 751 (2023) (“In the absence of
statutory text to the contrary, we would assume that ‘Congress intends to incorporate
the well-settled meaning’ of . . . a common-law term.”) (quoting Universal Health
Servs., Inc. v. United States ex rel. Escobar, 579 U.S. 176, 187 (2016)). As outlined
above, “disparate treatment” has a settled, specific meaning under the law—
intentionally treating a person “less favorably than others because of” a protected trait,
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Ricci, 557 U.S. at 577 (quoting Watson, 487 U.S. at 985–86)—and the Contractors Order
must be interpreted in light of that settled meaning.
This interpretation is supported by the context that surrounds the phrase
“disparate treatment” in the Contractors Order. The Court “must . . . consider ‘the
specific context in which that language is used, and the broader context of the [Order] as
a whole.’” United States v. Spirito, 36 F.4th 191, 204 (4th Cir. 2022) (quoting Yi v. Fed.
Bureau of Prisons, 412 F.3d 526, 530 (4th Cir. 2005)). In other words, courts should not
interpret text “in a vacuum.” Tyler v. Cain, 533 U.S. 656, 662 (2001). Here, “disparate
treatment” defines the phrase “racially discriminatory DEI activities.” Contractors Order
§ 2. The inclusion of the term “racially discriminatory” confirms that “disparate
treatment” is to be interpreted based upon its established meaning in the context of
federal laws that prohibit discrimination on the basis of race.
The Order’s text does not reach the principal examples on which Plaintiffs rely.
Studying diseases that have “disparate negative health outcomes for particular races,”
ECF No. 28-1 at 22, does not, without something more, treat anyone less favorably than
others because of race or ethnicity. Such research is directed at the disease, and people
who do not have (and are not at risk of) the disease are not similarly situated to those
who do. Likewise, “[t]eaching courses or leading research efforts on topics relating to
race, ethnicity, diversity, equity, or inclusion” and “[p]ublishing materials relating to
improving diversity, inclusion, and equity,” id. at 34, are forms of expression about race.
They do not necessarily involve “disparate treatment based on race or ethnicity” in
“recruitment, employment . . . , contracting . . . , program participation, or allocation or
deployment of an entity’s resources.” Contractors Order § 2(a). If the government were
to bring or threaten a False Claims Act enforcement action against a contractor based on
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such speech or programs, that not only would be unauthorized by the Contractors
Order, but could very well violate the First Amendment and thereby give rise to an as-
applied challenge to such enforcement action.
Finally, the government’s representations in this litigation are consistent with the
Court’s reading of the text and context—though the Court’s conclusions rest on the text
and context, not on those representations. The government acknowledged that scientific
or medical studies of diseases that affect one race disproportionately would not be
barred by the model language in the Contractors Order. See ECF No. 44 at 22 (“Those
are not instances in which the physicians or the scientists . . . are trying to discriminate
based on . . . someone’s race or ethnicity. There may be a correlation between race and
ethnicity and medical condition, but it’s not intentional discrimination.”). The
government also confirmed that a contract “could not be terminated” on the basis of a
contractor merely “talking about historical examples of racial disparities . . . because
that would not be disparate treatment based on race or ethnicity.” Id. at 34–35. The
government confirmed these representations at the hearing. And as the government
conceded before the Fourth Circuit in NADOHE I, “there is ‘absolutely’ DEI activity that
falls comfortably within the confines of the law.” NADOHE I, 167 F.4th at 104 (Diaz,
C.J., concurring).
If the government were to enforce the Contractors Order consistent with a
broader interpretation—by, for example, bringing FCA actions or canceling contracts in
relation to DEI-related activity that does not constitute disparate treatment under
existing law—the targets of such enforcement could bring an as-applied challenge, as
noted above, and also point to the government’s numerous representations in this case
and in NADOHE I. See United States v. Craig, 142 F.4th 192, 198 (4th Cir. 2025)
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(“[T]he government, like any party, has a duty of candor to the court.”); NADOHE I, 167
F.4th at 100 (noting that facial challenges “are disfavored because they run contrary to
the fundamental principle of judicial restraint that courts should neither anticipate a
question of constitutional law in advance of the necessity of deciding it nor formulate a
rule of constitutional law broader than is required by the precise facts to which it is to be
applied.”) (quoting Edgar v. Haines, 2 F.4th 298, 313 (4th Cir. 2021)). In this facial
challenge, however, Plaintiffs have not established that the Order’s unconstitutional
applications, if any, are “substantially disproportionate to the [Order’s] lawful sweep.”
Hansen, 599 U.S. at 770. They have not established a likelihood of success as to their
overbreadth claim.
ii. 	Content Discrimination and Unconstitutional Conditions
Plaintiffs also contend that the Contractors Order impermissibly regulates speech
based upon its content and places an unconstitutional condition on the exercise of their
First Amendment rights.
Regarding content discrimination, the First Amendment bars the government
from “restrict[ing] expression because of its message, its ideas, its subject matter, or its
content.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015) (quoting Police Dep’t of Chi.
v. Mosley, 408 U.S. 92, 95 (1972)). “Content-based laws—those that target speech based
on its communicative content—are presumptively unconstitutional and may be justified
only if the government proves that they are narrowly tailored to serve compelling state
interests.” Id. Plaintiffs contend that strict scrutiny should apply here because the
Contractors Order “bans expression that celebrates particular ethnicities or recognizes
and/or addresses different experiences based on race.” ECF No. 28-1 at 24.
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Under the unconstitutional conditions doctrine, “the government may not deny a
benefit to a person because he exercises a constitutional right.” Regan v. Tax’n With
Representation of Wash., 461 U.S. 540, 545 (1983). Plaintiffs contend that the
Contractors Order “improperly imposes ‘a disproportionate burden calculated to drive . .
. from the marketplace’ any expressive activity that celebrates a particular racial or
ethnic group or attempts to address discrimination or differences in experience based
on race.” ECF No. 28-1 at 26 (quoting Nat’l Endowment for the Arts v. Finley, 524 U.S.
569, 587 (1998)).
Plaintiffs have not demonstrated a likelihood of success as to either of these
arguments, for largely the same reasons articulated above. “[P]laintiffs have no
protectable speech interest in operating, and ‘no constitutional right to operate[,] DEI
programs that violate federal antidiscrimination law.’” NADOHE I, 167 F.4th at 103–
04 (emphasis added, quoting Nat’l Urb. League v. Trump, 783 F. Supp. 3d 61, 102
(D.D.C. 2025)); see also Hishon v. King & Spalding, 467 U.S. 69, 78 (1984) (“There is
no constitutional right . . . to discriminate in the selection of who may attend a private
school or join a labor union.”). As explained above, the Order’s definition of “racially
discriminatory DEI activities” as “disparate treatment based on race or ethnicity” means
that any conduct prohibited by the Order is also prohibited by federal
antidiscrimination law. That is true even of discrimination by employers too small to be
covered by Title VII, because 42 U.S.C. § 1981 independently prohibits intentional
discrimination in making and enforcing contracts, including employment contracts,
regardless of the employer’s size. See 42 U.S.C. § 1981(a)–(b); id. § 2000e(b).
Plaintiffs lack a protectable First Amendment interest in speech that is prohibited
by the Contractors Order because they lack an interest in speech that is prohibited by
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federal antidiscrimination law. And to the extent the Order does reach intentional
discrimination that federal antidiscrimination statutes do not, such as discrimination by
employers too small to be covered by Title VII, see ECF No. 44 at 42–43, Plaintiffs have
not shown that the First Amendment protects such discrimination. See Hishon, 467 U.S.
at 78. In other words, the Order does not impermissibly regulate the content of speech
or impose unconstitutional conditions because it mandates compliance with existing
laws (and those laws are not challenged here).
Accordingly, Plaintiffs have not established a likelihood of success as to their
content discrimination or unconstitutional conditions arguments.
B. 	Fifth Amendment
“The Fifth Amendment guarantees that “[n]o person shall . . . be deprived of life,
liberty, or property without due process of law.” NADOHE I, 167 F.4th at 101 (quoting
U.S. Const. amend. V). A regulatory enactment “is void for vagueness if its prohibitions
are not clearly defined.” Id. (quoting Grayned v. City of Rockford, 408 U.S. 104, 108
(1972)). “The vagueness inquiry asks whether a regulation ‘provide[s] a person of
ordinary intelligence fair notice of what is prohibited, or is so standardless that it
authorizes or encourages seriously discriminatory enforcement.’” Id. (quoting FCC v.
Fox Television Stations, Inc., 567 U.S. 239, 253 (2012)).
Plaintiffs’ vagueness claim focuses on the preface of the model contractual
language in the Order. The preface states that the contract language at issue applies
“[i]n connection with the performance of work under this contract.” Contractors Order
§ 2. Plaintiffs contend this is impermissibly vague, because it leaves open the question of
whether the language covers “only that portion of work that is directly funded by the
covered contract” or “any expression by a contractor or subcontractor[.]” ECF No. 28-1
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at 28. And if so, this would be problematic because under the First Amendment
although the government may “impose limits on the use of such funds to ensure they are
used in the manner Congress intends,” Agency for Int’l Dev. v. All. for Open Soc’y, 570
U.S. 205, 213 (2013) (quoting Rust v. Sullivan, 500 U.S. 173, 195 n.4 (1991)), it may not
“prohibit[] the recipient from engaging in the protected conduct outside the scope of the
federally funded program.” Id. at 217 (quoting Rust, 500 U.S. at 197).
The Contractors Order does not leave open the questions that Plaintiffs contend
it does. The model language directs that contractors agree to certain provisions “[i]n
connection with the performance of work under this contract.” Contractors
Order § 3 (emphasis added). The Contractors Order expressly applies only to work the
contractor is performing for the government pursuant to the contract in which the
model language appears. The meaning of the Executive Order is not impermissibly
vague. See Bruce & Tanya & Assocs., Inc. v. Bd. of Supervisors of Fairfax Cnty.,
Virginia, 355 F. Supp. 3d 386, 412 (E.D. Va. 2018) (“Although ‘we can never expect
mathematical certainty from our language,’ all that the Due Process Clause requires is
that reasonably intelligent people be able to understand ‘what the ordinance as a whole
prohibits.’”) (quoting Hill v. Colorado, 530 U.S. 703, 733 (2000)). To the extent
Plaintiffs’ members are concerned that the government will attempt to enforce the
provisions of the Contractors Order against them for conduct or speech outside the
contract, such enforcement action may well be unconstitutional retaliation, as counsel
for the government directly acknowledged. See ECF No. 44 at 32 (“[T]he government is
not allowed to bar . . . protected speech outside of the scope of the contract.”); see also
Bd. of Cnty. Comm’rs, Wabaunsee Cnty. v. Umbehr, 518 U.S. 668, 686 (1996) (“[W]e
recognize the right of independent government contractors not to be terminated for
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exercising their First Amendment rights.”). If the government does undertake such
action, the proper course for Plaintiffs and/or their members is to bring as-applied
challenges. See NADOHE I, 167 F.4th at 104 (“If the President, his subordinates, or
another grantor misinterprets federal antidiscrimination law, plaintiffs ‘can challenge
that interpretation in a specific enforcement action.’”) (quoting Nat’l Urb. League, 783
F. Supp. 3d at 103). The Contractors Order is not so vague on its face that it violates the
Fifth Amendment. See NADOHE I, 167 F.4th at 102 (“[I]f government actors have
terminated grants or contracts without regard to their legality, then plaintiffs can sue
those actors for terminating those contracts.”) (quotations omitted).
C. 	APA
Plaintiffs contend that the FAR Memo is arbitrary and capricious because it fails
to provide a reasoned explanation, fails to take into account the reliance interests of
government contractors, and fails to consider important aspects of the issue,
particularly the impact and cost of implementing the model contract language. ECF No.
28-1 at 32–34. Defendants contend that Plaintiffs lack Article III standing to challenge
the FAR Memo because the Contractors Order imposes identical requirements of federal
agencies and that the FAR Memo is not a final agency action subject to review under the
APA. ECF No. 32 at 34–36.
At the outset, Plaintiffs have shown, for purposes of their motion, that they likely
have standing to challenge the FAR Memo. Defendants contend that Plaintiffs’ alleged
injury from the FAR Memo is not redressable (thereby defeating Plaintiffs’ standing to
challenge it) because “even if this Court stays . . . the [Memo], Defendant agencies still
remain bound by the Order’s instruction to include the Certification in Government
contracts.” ECF No. 32 (citing Contractors Order § 3). Defendants are correct as to the
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overlapping effect of the Memo and the Order. But that does not defeat Plaintiffs’
standing to separately challenge the Memo based on their alleged First Amendment and
monetary injuries stemming from both the Order and the Memo. See ECF No. 26
¶¶ 133–62, 176–88; see also NADOHE I, 167 F.4th at 98–100 (finding that plaintiffs
there had Article III standing to challenge similar Executive Order provisions).
Nonetheless, in light of the Court’s conclusions above regarding the Contractors
Order, Plaintiffs have not shown a likelihood of success on the merits that would justify
a stay or injunction of the FAR Memo. Plaintiffs contend that the FAR Memo “imposes
obligations that have legal consequences for Plaintiffs but that appear nowhere in the
Order.” ECF No. 35 at 21. Plaintiffs contend that these new obligations include requiring
agencies to update certain of their existing FAR class deviations by April 27, 2026, and
to “modify existing contracts . . . by July 24, 2026.” Id. at 21–22 (quoting FAR Memo at
2).4 Plaintiffs further contend that these dates are nowhere to be found in the
Contractors Order. ECF No. 35 at 21. But the dates in the FAR Memo, April 27 and July
24, stem directly from the Contractors Order. The Order directs agencies to “ensure that
contracts . . . include the following clause” “within 30 days of the date of this order” (i.e.,
April 27, 2026) and directs each agency head to “review the agency’s implementation” of
the Order and “report . . . regarding its compliance” by “[w]ithin 120 days of the date of
this order” (i.e., July 24, 2026).
Because the requirements imposed by the FAR Memo are substantially identical
to the requirements imposed by the Order, and because this Court declines to
4 A FAR “deviation” is, among other things, an agency’s use of a policy, procedure, or
contract clause that is inconsistent with the FAR, and a “class deviation” is one that
“affect[s] more than one contract action.” 48 C.F.R. §§ 1.401(a), 1.404.
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preliminarily enjoin the Order, Plaintiffs have not shown a likelihood of success on the
merits of their claim that the FAR Memo is unconstitutional. Nor have they shown that
they are likely to suffer irreparable harm absent a stay or injunction of the FAR Memo,
because the harms they identify flow from the contract clause that the Order
independently requires. See Winter, 555 U.S. at 22. Plaintiffs point to other respects in
which the FAR Memo elaborates on how agencies are to implement the Order, see ECF
No. 35 at 21–22, but they have not shown that any of those provisions, as distinct from
the contract clause itself, is likely to cause them irreparable harm. The Court therefore
need not, and does not, decide the parties’ remaining disputes regarding the FAR
Memo, including whether it is final agency action and whether Plaintiffs are likely to
succeed on the merits of their other APA claims. See ECF No. 32 at 34–41; ECF No. 28-1
at 29–33; ECF No. 35 at 18–25.
IV. 	CONCLUSION
For the reasons articulated above, the Court will deny Plaintiffs’ motion for a
preliminary injunction and stay (ECF No. 28). A separate order follows.
Date: October 14, 2026 /s/
Adam B. Abelson
United States District Judge
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