From yesterday’s decision nat’l ass’n, diversity officer in higher education. v. TrumpChief Judge Albert Diaz, Judges Pamela Harris and Allison rush in agreement:
Pending before the court is a government complaint for a pending stay. This case concerns two executive orders. [14,151 & 14,173] This instructs executive agencies to terminate the “diversity, equity, and inclusion” (or “DEI”) program within the federal grants and contracting process. The plaintiffs (Mayor of Baltimore, Maryland, City Council and the three national associations) acted to prohibit the enforcement of government orders in advance, in order to challenge the constitutionality of the provisions of the three orders under the First and Fifth Amendments.
The district court found the provisions likely to be unconstitutional and issued a nationwide injunction prohibiting defendants from enforcing these provisions against both plaintiffs and “similarly circumstanced nonpartisans.” After the government appealed the injunction to the court, the district court entered an order that made it clear that the interim injunction would “apply to the defendant and would bind other federal administrative agencies, departments, and committees, as well as their heads, officers, agents and plots.” The government is currently seeking a stay in the district court’s interim injunction or to limit it to the names of the plaintiff and defendant.
After reviewing records, district court opinions and party briefings, I agree that the government meets the factors of the stay Nkenv. Holder (2009). Therefore, we acknowledge the government’s allegations for staying with the interim injunction. The Clerk will set up a prompt briefing schedule after consultation with the parties.
Supreme Court Justice Diaz also wrote another opinion:
For now, the government is pleased to meet the burden justifying the stay of the district court’s injunction pending appeal. So I will take part in Judge Harris’ separate opinions, recognizing the government’s allegations and explaining why. Like { [Judge Harris]I also reserve a judgment on how the administration will enforce these executive orders. Similarly, I reserve similarly a judgment regarding the extent to which the government relies on the provisions of the order in implementing order directions to federal contractors, grantees and private companies. Please refer, City & Cnty. San Francisco vs Trump (September 9, 2018) (The clause is ” [] The context “fail” overrides a clear and specific language, “making judicial review a meaningless exercise.”). }.
But I am forced to write individually to address the monsters in America: what appears to be (at least for some) diversity, equity and inclusion initiatives.
The executive order accuses the DEI (and the associated DEIAs are also accessible) policy of including “gender-based preferences based on risk, sleazy, and immoral race.” The order is about to terminate all “stock-based grants or contracts” that have clearly led to “enormous public waste and shameful discrimination.”
However, neither order defines DEI or its component terms. {As a result, what kind of programmes (formal or informal) are unknown was the administration seeking to eliminate them, and the district court’s hypothesis could not address the same. In this preliminary stage of the litigation, I do not believe that the outcome of the principle of ambiguity is conclusive, as the order aims to direct enforcement policies and actors. But I repeat the actions of that agency that are beyond the narrow scope set in this motion.
And despite Vitriol’s piling up in Dei, the honest people who work to promote diversity, equity and inclusion are worthy of praise rather than opprobrium. When this country embraces true diversity, it acknowledges and respects the social identity of its people. When it promotes true fairness, it opens up opportunities and ensures a level playing field for all. And when that policy is truly inclusive, it creates an environment and culture that is respected and appreciated by everyone. What more Americans are there?
Under the most fundamental doctrine of the First Amendment, there is open and principled debate about the DEI programme, and whether the corresponding value should guide admission, employment, scholarships, funding, or workplace and educational practices. And while all Americans should be free to consider ways to continue empowering historically underprivileged groups;[r]education[ing]”Individuals within these groups” to the assigned race [or sex-based] Identity. “
For almost 250 years, the north star of the country was “the self-evident truth that all men are created equal. Even when we were shortage, sometimes we rose up, made corrections, and advanced. But the country rubbed the shameful moments of the past, and in itself won’t benefit, because history may be static, but its effect remains.
From meeting rooms to courtrooms, operating rooms and classrooms, formerly marginalized Americans have thrived in long-standing closed spaces. And we’re better for that. But despite this success, or because of it, we owe ourselves to continue building up conversations that may help us achieve a “more perfect union.” …
Like most monsters in your closet, what’s hiding is mere shadows.
Judge Harris wrote another opinion as well:
I agree to an order that grants the government’s claim for a stay pending appeal. This is a difficult case that will benefit from more sustained attention than you can give it in your current posture. But for now, the government believes it has demonstrated sufficient success potential to ensure a stay until it hears its appeal and decides.
The executive orders challenged their faces, as the government explains, are clearly limited. Executive orders are not intended to establish the illegality of any effort to promote diversity, equity, or inclusion, and should not be understood as much. Instead, the so-called “certification” and “enforcement threat” provisions only apply to conduct that violates existing federal anti-discrimination laws.
Furthermore, the order will not allow grant termination based on the speech or activity of the grantee outside the scope of the funded activity. Rather, the “termination” clause indicates the termination of the grant. This is subject to applicable legal restrictions based solely on the nature of the activities in which the grant was funded. Based on this understanding, the government has shown the necessary possibility that the challenged provisions do not violate their faces, violating the first or fifth amendments.
However, I need to be careful with my vote to allow my stay. What the orders say to their faces and how they are enforced are two different things. Enforcement actions of agencies beyond the narrow scope of the order can raise concerns of serious first amendments and legitimate processes, for reasons cooperatively explained by the district court. However, I agree, as this case does not directly challenge such an action.
Finally, my vote should not be understood as an agreement with an attack on the order on efforts to promote diversity, equity and inclusion. In my view, like Judge Diaz, “The sincere people who work to promote diversity, equity and inclusion deserve praise rather than opprobrium,” I appreciate Judge Diaz’s consent and share his feelings.
And Judge Rush also wrote another opinion:
I agree to an order that grants the government’s claim for a stay pending appeal. Only the scope of the interim injunction should set a red flag: district courts claimed to be prohibited Unreal Because of taking opposing actions Non-Prison. But more than that, the judges on this panel unanimously agree that they must not only return to scope, but also remain in the entire material of the interim injunction. That’s because the government has done a “strong show” that it “is likely to succeed in merit”, and the district court has made the mistake by drawing conclusions otherwise. In other words, the government is likely to succeed in demonstrating that the challenged provisions of the executive order, which are instructions from the President to his officers, do not violate the first or fifth amendments.
Moreover, as Judge Harris correctly points out, this case does not challenge any particular agency lawsuit that enforces executive orders. However, in finding that the order itself was unconstitutional, the district courts relied on evidence of how various agencies were enforced or could implement the order of implementation. It highlights the serious questions about the maturity of this case and the plaintiff standing to bring it to an early issue. The doctrine standing with maturity is to “prevent the judicial process from being used to deprive the political sector of power,” and to “substantially continue” the “monitoring of administrative wisdom and soundness” by keeping the courts in “states,” and by denialing “personal rights” in actual disputes.
We must not lose sight of the boundaries of our constitutional role and the orders of judicial fairness. The individual judge’s view on whether a particular executive action is an appropriate policy is not irrelevant to fulfilling its obligation to award cases or disputes in accordance with the law, and it is an unacceptable consideration. The judge’s opinion that the Dei programme is “admired and not Opprobrium” should not play a role in determining this case at all.
Katherine Paddy, Mark R. Freeman, Daniel Tenney and Jack Starcher represent the government.
