“When the federal government tried to use its anti-DEI executive orders and funding restrictions to undermine the protections survivors need, when they told us to silence survivors and abandon our commitment to Black, Brown, immigrant and LBGTQIA+ survivors, we took action,” Freedom Network said in a statement.
Kennelly found organizations like Freedom Network are in a predicament because they risk losing current or future federal funding under the executive orders and regulations that do not explicitly define the meaning of diversity, equity and inclusion.
“The government has had multiple opportunities in this case and others to explain on what the [executive order] means when it refers to ‘illegal DEI’ and ‘programs promoting DEI,’” the judge wrote. “Rather than do so, the government acknowledged at oral argument that it has not defined how the scope of the federal civil rights and anti-discrimination laws has changed or what ‘illegal DEI’ means.
“Freedom Network and other grantees are thus put in a difficult and perhaps impossible position. Without any guidance on what programs may ‘promote DEI,’ Freedom Network must attempt to revise its programs to comply with the certification provisions, decline to make a certification and thus lose its grants (and not receive any grants in the future), or risk making a certification that the government will deem false, subjecting Freedom Network to liability under the False Claims Act.”
In addition to agreeing with Freedom Network that its rights are violated under the First Amendment, Kennelly found it demonstrated a likelihood of success on its separation of powers and spending clause claims.
“The court does not discount the president’s duty and authority to enforce the federal anti-discrimination and immigration laws,” he wrote. “But the power of the purse is not a tool for the executive branch to enforce the law absent authorization from Congress.”