Overview
On February 6, 2026, the Fourth Circuit vacated a preliminary injunction which had been in place for nearly a year and which enjoined enforcement of several provisions of two Executive Orders: "Ending Radical and Wasteful Government DEI Programs and Preferencing" (EO 14151) and "Ending Illegal Discrimination and Restoring Merit-Based Opportunity" (EO 14173). In National Association of Diversity Officers in Higher Education ("NADOHE") v. Trump, the Court considered facial challenges to provisions of the EOs which, in relevant part, ordered federal agencies to terminate grants inconsistent with the Administration's priorities (the "Termination Provision") and to include in all grants a "sign-off" for the recipient that they do not have any programs in place which violate federal anti-discrimination law (the "Certification Provision").
What You Need to Know
- The Court found that the plaintiffs were unlikely to prevail on the merits of a facial challenge to the two provisions.
- Rather, plaintiffs will have to challenge the provisions as-applied, in connection with specific actions taken.
- This victory for the Administration lifts a significant impediment to the advancement of its DEI-related agenda, and lends some further support to prior conclusions that recent wins against Administration actions, including those by the AFT and NAACP, should be interpreted with caution because other parts of the Administration's agenda remain in play.
What the Court Decided
In NADOHE,the plaintiffs, who also included the AAUP, argued that the Termination and Certification Provisions were facially unconstitutional. The District Court had agreed, and issued a nationwide injunction back in May 2025, enjoining the Administration from bringing enforcement or termination actions under the Provisions. The Administration appealed and moved to stay the preliminary injunction, which the Fourth Circuit granted. On February 6, the Fourth Circuit ruled in favor of the Administration with respect to both the Termination Provision and Certification Provision, vacating the injunction.1.
With respect to the Termination Provision, the Court concluded: "The President may determine his policy priorities" – including opposition to DEI – "and instruct his agents to make funding decisions based on them." They noted that "[w]hether that's sound policy or not isn't our call." Rather, "[w]e ask only whether the policy is unconstitutionally vague for funding recipients."
The Court concluded that the directive to terminate, in relevant part, "equity-related" grants or contracts and "all DEI or DEIA performance requirements" was not unconstitutionally vague in violation of the Fifth Amendment, citing the decades-old NEA v. Finley for the proposition that "when the Government is acting as patron rather than as sovereign, the consequences of imprecision are not constitutionally severe." Put another way, because recipients may choose to adjust their work in order to preserve eligibility for funds (to get the carrot), but were not being required to do so in order to follow the law (to avoid the stick), the concerns about vagueness which prompted the lower court to put the preliminary injunction in place held less weight.
In Finley, the Supreme Court had considered whether the "subjective criteria" of "artistic excellence and artistic merit" was unconstitutionally vague and determined that it was not. Here, the Fourth Circuit compared Finley's consideration of "Congress's guidance to an independent agency about its funding decisions" to the current issue, "the President's directive to his subordinates about how they should allocate federal funding based on the President's priorities," and concluded: "If the Supreme Court didn't find vagueness concerns in the former, we're hard-pressed to see how we could for the latter."
With respect to the Certification Provision, the Court found that the lower court had erred in concluding that the plaintiffs were likely to prevail on the merits of a facial challenge on First Amendment grounds. The Court concluded that requiring grant recipients to certify that they are compliant "in all respects with all applicable Federal anti-discrimination laws" and that they do not "operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws" was not, on its face, a First Amendment violation. Rather, the plain language "requires only that plaintiffs certify compliance with federal anti[-]discrimination laws, which the First Amendment doesn't confer a right to violate."
What's Next?
Barring a successful appeal to the U.S. Supreme Court, which is exceptionally unlikely, this ruling removes the impediment to the Administration's enforcement of the Certification Provision and permits funding terminations to continue apace.
This does not mean recipients (or would-be recipients) can never challenge the government's decision to terminate funds. But, they will have to do so in the posture of an as-applied challenge: "[I]f government actors have terminated grants or contracts 'without regard to their legality,' then plaintiffs can sue those actors for terminating those contracts") (internal citation omitted).
This also does not mean that recipients cannot challenge adverse actions based on certifications of compliance which the Administration believes to have been false based on a contested interpretation of anti-discrimination law. The Fourth Circuit acknowledged that evidence had been presented that the Administration was "targeting DEI-related activity beyond what's already prohibited by federal anti[-]discrimination laws." But, the Court determined that if recipients wish to challenge what they consider to be a "misinterpret[ation of] federal anti[-]discrimination law" – for example, by pursuing a legal theory expressed in the now-stricken February 14, 2025 Dear Colleague Letter to the extent that it may be inconsistent with the law – they "can challenge that interpretation in a specific enforcement action."
The Bottom Line
Institutions of higher education should prepare for ongoing instability in the award of grant and contract funding and continue to tread a right-fit approach in assessing DEI-related programs and activities in anticipation of executing certifications. For many, this will include discontinuing programs and activities which were likely noncompliant to begin with, as well as those which are counter to the Administration's known interpretations and not mission-critical, while continuing those which are mission-critical and, if challenged, take legal action as cued up by the Court.
For institutions which took a strict "dismantle" approach to DEI, this ruling is inconsequential. But, institutions which have, to date, held the line on DEI programs will have to reckon with diminished likelihood of success in challenging funding rescissions which may have been motivated by politicized priorities, but were not otherwise unlawful. They will also have to reckon with difficult decisions about assuming the risk of executing certifications which the Administration may, due to disagreements in legal interpretation, view as misrepresentative. These decisions are consequential, as the consequences are potentially grave, including the possibility of facing claims under the False Claims Act.
The Higher Education Group at Saul Ewing will keep a close eye on this issue and support colleges and universities as they continue to navigate DEI-related certifications and abrupt losses of funding. Please do not hesitate to contact the authors of this alert, or your regular Saul Ewing point(s) of contact, with any questions about the substance of this alert.
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1. Plaintiffs were found to lack standing to challenge another provision, which directed agencies to enforce anti-discrimination law against "illegal DEI" programs.
