Key Points

  • The Fifth Circuit vacated Judge Henry Wingate's preliminary injunction against Mississippi's H.B. 1193, a 2025 law restricting DEI programs in public schools and colleges.
  • The panel held the injunction rested on incorrect legal principles: it misapplied Moody v. NetChoice's facial-challenge framework, substituted uncertainty in the law for a likelihood of success, and misread Trump v. CASA on the scope of relief.
  • The court ordered the case reassigned to a different district judge, citing the original TRO's fabricated parties, quotations and declarations and the corrected TRO's citation to a nonexistent Fourth Circuit case.
  • Judge Smith's opinion instructed the new judge that the law does not reach students, that Chiras v. Miller governs curricula and instruction, and that Kennedy v. Bremerton's balancing test governs teachers' personal speech.
  • Judge Haynes concurred only in the final paragraph ordering vacatur and reassignment, stressing that teachers must not be barred from teaching students not to discriminate.

A federal appeals court on Oct. 22 vacated an injunction that had barred Mississippi from enforcing its law against diversity, equity and inclusion programs in public schools and colleges, and it took the case from a trial judge whose orders named invented parties, misquoted the statute and cited a court decision that does not exist.

The U.S. Court of Appeals for the Fifth Circuit held that Judge Henry Wingate of the Southern District of Mississippi applied the wrong legal standards when he enjoined House Bill 1193 in August 2025. Judge Jerry E. Smith wrote the opinion for a panel that included Judges Haynes and Engelhardt. Judge Haynes concurred only in the opinion's final paragraph, which vacates the injunction and directs the reassignment.

The ruling sends the challenge to a different district judge, who must reconsider it under the panel's instructions on the law's reach and the First Amendment rules that govern it.

Mississippi enacted H.B. 1193 in April 2025. The law bars public schools and colleges from mandating DEI programs and diversity training, from punishing students for their views on DEI, and from promoting DEI through course materials. Teachers, professors, students, parents and advocacy groups sued in June 2025 in a pre-enforcement facial challenge. They argued the law violates the First Amendment and is unconstitutionally vague.

"The proceedings in the district court were a botch job, to say the least," Judge Smith wrote. The temporary restraining order, or TRO, that Judge Wingate entered on July 20, 2025, named as plaintiffs 11 individuals and organizations who had never been parties to the case. It named two officials as defendants who had not been sued. It also misquoted the law as covering "critical race theory" and other terms absent from its text, and it referenced declarations from four people who appear nowhere in the record.

After the state defendants flagged the errors, Judge Wingate replaced the TRO with a seemingly corrected version, backdated it to July 20 and called the mistakes "clerical." After Sen. Chuck Grassley accused the court of using artificial intelligence, Judge Wingate wrote that a law clerk had used AI to help draft an earlier version docketed by mistake. His letter said the errors did not relate to "core legal reasoning or the ultimate judgment on the merits." The panel wrote that "It is not clear to this court how so many mistaken facts could not at least marginally 'affect' 'core legal reasoning.'"

At oral argument in the Fifth Circuit, it was discovered that even the replacement TRO cited "Cousins v. School Bd. of City of Norfolk," described as a 1974 Fourth Circuit decision. "That case does not even exist; it is an apparent AI hallucination," Judge Smith wrote. The preliminary injunction incorporated that TRO by reference.

"This district judge carelessly exercised his Article III power by issuing sloppy edicts based on falsehoods and fabrications," Judge Smith wrote. He added that "The district court—or perhaps, being charitable, its AI agent—ignored and manipulated governing law, apparently to satisfy a policy agenda."

The panel identified several legal errors. The first concerned Moody v. NetChoice, a 2024 Supreme Court decision requiring a facial First Amendment challenger to show that a law's "unconstitutional applications substantially outweigh its constitutional ones." Judge Wingate twice described that framework as "supposedly" required. Judge Smith wrote that this "calls into question whether he even tried in good faith to follow the law."

The second error concerned the standard for preliminary relief. Judge Wingate wrote that the court "should pause when faced with an unsettled area with such dire possible consequences." "That gets the entire law of injunctive relief completely backwards," Judge Smith wrote, because the plaintiffs had to show that they were likely to succeed on the merits.

The third concerned the injunction's statewide scope. Judge Wingate cited Trump v. CASA, the Supreme Court's 2025 decision limiting relief to what is "necessary to provide complete relief to each plaintiff," for the view that injunctions "should be all-or-nothing renditions." "That is almost exactly the opposite of what CASA says," Judge Smith wrote.

Reassignment, the opinion acknowledged, is an "extraordinary" and "rarely invoked" power. The panel held that both of the Fifth Circuit's tests for it were met. Given the AI errors and legal mistakes, Judge Smith wrote, "it would be an understandable—though obviously unjust—temptation for the judge to want to find a way to prove that, even with correct law and fact, his initial view should prevail."

The opinion then set out the law for remand. It held that H.B. 1193 regulates public schools, colleges and their educators and "does not apply to students." Under the circuit's 2005 decision in Chiras v. Miller, it said, a state may regulate textbooks, curricula and instruction to "promote policies and values of its own choosing." Teachers' personal, noncurricular statements in class call for a balancing test drawn from Kennedy v. Bremerton School District. On vagueness, a challenge "must fail" if the law has a clear core of meaning that a regulated party could understand.

Judge Haynes, in a three-sentence concurrence, called for "a more full look at the House Bill 1193 in play" on remand. Judge Haynes 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."

The court directed the Chief Judge of the Southern District of Mississippi to assign the case to a different district judge for all further proceedings. That judge must apply the panel's framework to each application of the law and decide whether the ratio of unlawful to lawful applications is so "lopsided" that the law's unconstitutional reach substantially outweighs its lawful reach.