Fifth Circuit Vacates Injunction Against Mississippi DEI Law, Orders a New Judge, and Sets the First Amendment Rules for the Next Round

Oct 23, 2026 · 7 min read · By Brandon J. Grable

Case: Jackson Federation of Teachers v. Fitch, No. 25-60496, 2026 U.S. App. LEXIS 32221 (5th Cir. Oct. 22, 2026) (published). Opinion by Judge Jerry E. Smith; Judge Haynes concurred only in the opinion's last paragraph. Panel: Judges Smith, Haynes, and Engelhardt. Appeal from the U.S. District Court for the Southern District of Mississippi, No. 3:25-CV-417. Read the opinion on the Fifth Circuit's website.

What happened

In April 2025, Mississippi enacted 2025 Miss. Laws ch. 491 (H.B. 1193), approved and effective Apr. 17, 2025, which the Fifth Circuit described as "a law designed to keep Mississippi public education funds from being spent on diversity, equity, and inclusion ('DEI') initiatives and similar controversial programs." Among other things, the law bars public schools and colleges from requiring diversity training, from punishing students for refusing to endorse DEI concepts, and from maintaining programs or courses that promote DEI. It also contains exceptions, including for scholarly research, creative work, and the activities of student groups.

In June 2025, a group of "teachers, professors, students, parents, and activist organizations" sued state officials. They brought a "pre-enforcement facial challenge," meaning they asked the court to strike down the law as a whole before it was enforced against anyone. They claimed the law violates the First Amendment and is unconstitutionally vague.

The district judge entered a temporary restraining order (TRO) in July 2025. According to the Fifth Circuit, that original order named as plaintiffs "eleven individuals and organizations who had never been party to the case," named as defendants "two officials who were not actually sued," misquoted the statute, and referred to declarations from people who do not appear in the record. After the state pointed out the errors, the district judge replaced the order with a "seemingly corrected" version, as the Fifth Circuit put it, and described the mistakes as "clerical." According to the Fifth Circuit, the judge later acknowledged in a letter that "a law clerk had used AI to assist drafting an earlier version of the TRO that was docketed by mistake." At oral argument in the Fifth Circuit, it was discovered that even the seemingly corrected order cited a case, "Cousins v. School Bd. of City of Norfolk," that the court said "does not even exist; it is an apparent AI hallucination."

In August 2025, the district court granted a preliminary injunction, ruling that the law facially violated the First Amendment and was void for vagueness. The state appealed.

What the Fifth Circuit decided

The Fifth Circuit vacated the preliminary injunction, sent the case back, and directed the Chief Judge of the Southern District of Mississippi "to assign this case to a different district judge for all further proceedings." Its main rulings:

The case goes to a new judge. The court acknowledged that reassigning a case is an "extraordinary" and "rarely invoked" power, but it concluded that "[t]his case easily calls for reassignment." The court applied its reassignment tests, including whether the circumstances "might reasonably cause an objective observer to question the judge's impartiality," and concluded that "an objective observer might question the impartiality of the proceedings."

The district court applied the wrong legal standard for a facial challenge. Under the Supreme Court's decision in Moody v. NetChoice, a plaintiff bringing a facial First Amendment challenge must show that the law's "unconstitutional applications substantially outweigh its constitutional ones." The Fifth Circuit held that the district court did not perform that analysis. It also held that a preliminary injunction requires a likelihood of success, not just uncertainty: "A preliminary injunction cannot stand just because there is a possibility of success on the merits." And it said the injunction's scope was "impermissibly broad."

The law regulates schools and educators, not students. To guide the new judge, the court described what the law covers. It held that the law "regulates public schools and public colleges, including teachers, professors, and other educators," and that "it does not regulate students." It also read the law's exceptions to mean that it "would not apply to the activities of student organizations except when state funds are used."

Curriculum is treated as the government's own speech. Relying on its earlier decision in Chiras v. Miller, the court said that for "textbooks, curricula, classroom instruction, administrative activities, and other official activities of public institutions," a state has broad power to "promote policies and values of its own choosing." But the court also said that where "the personal (e.g., non-curricular) statements of teachers and professors in the classroom are implicated," the district court must apply the Supreme Court's Garcetti framework, as described in Kennedy v. Bremerton School District, and "balance the interests of the state in pursuing its public policies against the individual speech rights at issue."

Vagueness challenges face a high bar. The court explained that if there is a "foreseeable application of the law" in which there is "a clear core of meaning that a rational regulated party could understand," then "a void-for-vagueness challenge must fail."

The concurrence. Judge Haynes joined only the opinion's final paragraph, which vacates the injunction and orders reassignment. She wrote that "it is very important to make sure that teachers at school are in no way limited or forbidden from teaching the students not to discriminate as set out in Title VII, including race, color, religion, sex, gender, etc."

What the court did not decide. The Fifth Circuit did not decide whether H.B. 1193 is constitutional. It instructed the new district judge to apply the legal standards it described to each of the law's applications and then decide whether the unconstitutional applications substantially outweigh the lawful ones. Quoting the Supreme Court, the court noted that a facial challenge is "hard to win."

Why it matters

Facial challenges are hard; specific facts matter. This opinion shows how demanding a facial First Amendment challenge is in the Fifth Circuit. A plaintiff must map out the law's full reach and show that its unconstitutional uses substantially outweigh its lawful ones. Teachers, professors, or students who believe a law has actually been used to punish their speech may have different arguments in a challenge based on what happened to them.

Educators' personal speech still gets a balancing test. The court treated curriculum and official instruction as the state's own speech. At the same time, it recognized that educators' personal, non-curricular statements are analyzed under the Garcetti and Kennedy framework, which weighs the state's interests against the individual's speech rights.

There is a disagreement with another circuit. The Fifth Circuit expressly declined to follow the Eleventh Circuit's 2026 decision in Pernell v. Florida Board of Governors, which the Fifth Circuit described as holding "that Kennedy's applicability ends with high school." The opinion notes that a petition for certiorari has been filed in Pernell, so the Supreme Court may be asked to weigh in.

Every citation must be checked. The Fifth Circuit's opinion is a reminder that court papers, whether written by lawyers or judges, must rest on real cases and an accurate record.

What this means in Texas

This is a published Fifth Circuit opinion, so it is binding precedent in federal courts in Texas, Louisiana, and Mississippi, including the federal courts in San Antonio. Its instructions on how the First Amendment applies to curriculum, to educators' personal speech in the classroom, and to facial and vagueness challenges will likely be cited in future cases involving Texas public schools and universities.

The case is not over. It returns to a new district judge, and the parties may seek further review. If you are a teacher, professor, or student and believe a public school or university has punished you for your speech, talking with a lawyer can help you understand your rights and the deadlines that may apply.

Attorney advertising. This post is for general information only. It is not legal advice and does not create an attorney-client relationship. Past results do not guarantee a similar outcome in any future matter. Every case depends on its own facts.

Attorney responsible for content: Brandon J. Grable, Grable PLLC, San Antonio, Texas.

Topics: First Amendment