State argues Fifth Circuit should remand Mississippi’s anti-DEI law case to different judge

State argues Fifth Circuit should.

Key points

• The law, HB 1193, was passed by the Mississippi Legislature during the 2025 legislative session and then signed into law by Governor Tate Reeves (R).
• The Fifth Circuit Court of Appeals in New Orleans heard arguments Monday over an indefinite injunction placed on Mississippi's anti-DEI law by U.S.
• District Judge Henry Wingate placed an indefinite injunction against HB 1193 last year.
• The American Civil Liberties Union (ACLU) and the Mississippi Center for Justice filed the lawsuit after the bill became law.
• Mississippi to receive almost $200 million over 10 years in "landmark" settlement with Meta.

State argues Fifth Circuit should remand Mississippi's anti-DEI law case to different judge. By: Jeremy Pittari – August 31, 2026.

U.S. District Judge Henry Wingate placed an indefinite injunction against HB 1193 last year. His employ of AI to draft the order, and the inaccuracies contained therein, triggered concern all the way up to the U.S. Senate Judiciary Committee.

Meanwhile, the Fifth Circuit Court of Appeals in New Orleans heard arguments Monday over an indefinite injunction placed on Mississippi's anti-DEI law by U.S. District Judge Henry Wingate.

In practice, the law, HB 1193, was passed by the Mississippi Legislature during the 2025 legislative session and then signed into law by Governor Tate Reeves (R).

As it was described by lawmakers, the law prevents public K-12 schools and higher education institutions in Mississippi from utilizing diversity, equity and inclusion (DEI) practices when making decisions concerning school employment, academic opportunities, and student engagement. Such decisions are to be based on an individual's merit and qualifications rather than a person's race, color, sexual orientation, or gender. The law passed through both bodies in the State Capitol and then received the governor's signature in April.

In practice, the American Civil Liberties Union (ACLU) and the Mississippi Center for Justice filed the lawsuit after the bill became law.

On Monday, counsel with the Mississippi Attorney General's Office argued before the Court of Appeals that the provisions outlined in HB 1193 should be removed from the preliminary injunction that was put in place by Judge Wingate in August of last year.

Anthony Shults, representing the Mississippi Attorney General's Office, asked the court to consider vacating the injunction due to claims that the lower court ignoring the analysis requirements for facial claims and it "misconstrued the state's law and applied incorrect legal principals."

Meanwhile, the option of reassigning the case to a different judge other than Wingate was backed by the Attorney General's office.

"The state believes that reassigning this case to a different judge on remand would be appropriate, " Shults remarked.

Problems with the case, Shults stated, include the employ of artificial intelligence to write the opinion that issued the temporary restraining order handed down by Judge Wingate. That AI-created draft was afterwards identified to have inaccuracies pertaining to the actual language of the bill and incorrectly listed plaintiff names, requiring a rewrite.

"The problem was it referred to those errors as merely clerical and did not give any explanation or response to the state's motion requesting, I believe legitimately, an explanation, " Shults described.

Judge Wingate admitted to the mistake in using AI to draft the order after U.S. Senate Judiciary Committee Chairman Chuck Grassley wrote a letter to him regarding the allegations. Judge Wingate then sent a letter to Robert Conrad, Director of the Administrative Office of the Courts, in response to Senator Grassley, stating that a law clerk utilized a generative artificial intelligence tool known as Perplexity "strictly as a foundational drafting assistant to synthesize publicly available information on the docket."

Judge Wingate admits mistake in employ of AI in drafting order blocking Mississippi's anti-DEI law.

"The law clerk who used GenAI in this case did not input any sealed, privileged, confidential, or otherwise non-public case information, " Wingate wrote. "The standard practice in my chambers is for every draft opinion to undergo a number of levels of review before becoming final and being docketed, including the apply of cite checking tools. In this case, nevertheless, the opinion that was docketed on July 20, 2025, was an early draft that had not gone through the standard review process. It was a draft that should have never been docketed. This was a mistake."

Wingate continued that he has taken steps to ensure the mistake will not happen again.

Shults went on to contest the arguments created by the plaintiffs that claim implementation of the bill infringes on a student's First Amendment rights.

"The text of the statute made clear the law does not itself regulate individual students, " Shults argued. "It applies to institutions. It regulates things like class programming, hiring, contracting, that students have no power, ability or authority to do."

Rob McDuff, the attorney representing the Mississippi Center for Justice and other plaintiffs, remarked he disagrees with Shults that the bill does not infringe on free speech. To him, allowing the bill to take effect would negatively affect the typical lessons provided in history, literature and biology classes. He argued that the vague nature of the bill's wording is of concern, ultimately requesting that the court leave the injunction in place.

"We have real issues here that have been raised by the brief, " McDuff remarked. "What does 'engagement' mean? Does it really mean you can not discuss problems related to race, sex, color, gender, identity, sexual orientation and national origin even though some of those matters have been part of classes for years, some for decades?"

To McDuff, the nature of the wording in the law will lead to chaos in the state's public schools and universities as the leadership in each district and university attempts to navigate the "vague and overreaching" statute, essentially impacting every student's First Amendment rights.

"This is really going to impact student speech in the classroom and outside of the classroom, " McDuff continued. "Student speech is not administration speech. It is clearly protected by the First Amendment."

He applied the example of class instruction on the Civil War. It includes facts surrounding slavery, sex and race. Reversing the injunction, McDuff remarked, will create an environment where students become uncomfortable speaking out.

"It is a cascading effect of First Amendment harm since it's not just any case, we're dealing with a vagueness case. It deals with freedom of speech and the freedom of students to talk regarding matters that they've been talking regarding for years in Mississippi school and will continue to talk concerning in the other 49 states, " McDuff argued.

When asked by the judicial panel if the inaccuracies in the initial AI drafted opinion are an matter in how the case was handled, McDuff stated that since the decision to matter the injunction was produced by Judge Wingate before the AI draft was written, he argued it should not be a factor.

Since the focus of HB 1193 was to ensure state employees are treated fairly based on merit, performance and character, not on their sex, race or other physically identifiable characteristics, in his rebuttal, Shults remarked the bill would not affect a student's First Amendment rights. A decision on the matter is projected to take a number of weeks. Regarding the Author(s).

Jeremy Pittari is a lifelong resident of the Gulf Coast. Born and raised in Slidell, La., he moved to South Mississippi in the early 90s. Jeremy earned an associate in arts from Pearl River Community College and went on to attend the University of Southern Mississippi, where he earned a bachelor's of arts in journalism. A week after Hurricane Katrina, he began an internship as a reporter with the community newspaper in Pearl River County. After graduation, he accepted a full-time position at that news outlet where he covered the recovery process post Katrina in Pearl River and Hancock Counties. For almost 17 years he wrote concerning local administration, education, law enforcement, crime, business and a variety of other topics. Email Jeremy: [email protected].

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Taken together, the developments around state argues Fifth Circuit should remand Mississippi’ s anti-DEI law case to different point to a situation that is still moving, and the coming days should bring more clarity.