Fifth Circuit Orders DEI Case Reassigned Over AI-Hallucinated Facts

Fifth Circuit Orders DEI Case Reassigned Over AI-Hallucinated Facts

The Fifth Circuit vacated a preliminary injunction against Mississippi's anti-DEI law on October 22, 2026 and directed the Southern District of Mississippi to hand the case to a different judge, after finding that the orders below were, in the panel's words, "based on falsehoods and fabrications" and that even the corrected restraining order still cited a case the court says does not exist.

Information last verified on October 24, 2026.

Status: Preliminary injunction VACATED and the matter REMANDED in Jackson Federation of Teachers v. Fitch, No. 25-60496 (5th Cir. Oct. 22, 2026) (published). The panel directed the Chief Judge of the Southern District of Mississippi to assign the case to a different district judge for all further proceedings (opinion at 27). The underlying 42 U.S.C. Section 1983 suit, USDC No. 3:25-CV-417, continues before that new judge. The panel did not decide whether H.B. 1193 is constitutional; it vacated the injunction and set out the law for the district court to apply on remand. We could not confirm whether any petition for rehearing has been filed, because the Fifth Circuit's docket is available only through PACER. No revised or amended version of the opinion appeared on the court's opinions server as of October 24, 2026.

Jurisdiction scope: This article addresses one published decision of the U.S. Court of Appeals for the Fifth Circuit, which sits over Mississippi, Louisiana and Texas, and one Mississippi statute. It does not address judicial-discipline procedure, court rules on the use of AI in filings, or the merits of H.B. 1193. For the broader picture of how US legislatures are regulating this technology, see our survey of state and federal AI legislation.

What Happened

Mississippi enacted House Bill 1193 in the 2025 regular session. Both chambers adopted the conference report on April 1 and April 2, 2025, the Governor approved the bill on April 17, 2025, and Section 11 made it effective on passage. The Act bars public K-12 schools and public postsecondary institutions from maintaining diversity, equity and inclusion offices, requiring diversity training, or maintaining programs that endorse the divisive concepts defined in Section 2(e), with exceptions in Section 5 for scholarly research, creative work, registered student organizations and accreditation compliance. In June 2025 a group of teachers, professors, students, parents and organizations filed a pre-enforcement facial challenge under 42 U.S.C. Section 1983. Judge Henry Wingate entered a temporary restraining order on July 20, 2025 and granted a preliminary injunction on August 18, 2025. The state defendants appealed on September 16, 2025.

On October 22, 2026 the Fifth Circuit vacated. Judge Jerry E. Smith wrote the published opinion; Judge Engelhardt was the third member of the panel and filed nothing separately; Judge Haynes wrote a short concurrence. The opinion says the proceedings below "were a botch job, to say the least" (at 3) and that the district judge "carelessly exercised his Article III power by issuing sloppy edicts based on falsehoods and fabrications" (at 4).

What the opinion says was fabricated

The opinion catalogues the contents of the TRO actually issued on July 20, 2025. It named as plaintiffs eleven individuals and organizations "who had never been party to the case" and as defendants two officials "who were not actually sued," one of whom the opinion notes is a defendant in the case in another capacity (at 6 and 6 n.4). It claimed, "without evidence," that three post-secondary institutions had already cancelled DEI initiatives. It misquoted H.B. 1193 as applying to "race or sex stereotyping," "race or sex scapegoating," "critical race theory," and "institutional bias," "despite none of these terms' appearing in the act's text." And it referenced "purported declarations of four individuals who do not appear in the record at all and may not even exist" (at 6-7).

We read the enrolled text of H.B. 1193 on the Mississippi Legislature's bill-status server and confirmed independently that none of those four phrases appears anywhere in the Act.

Two days after the TRO issued, the defendants moved to clarify or correct it. The court removed the original order from the docket the same day and replaced it with a corrected version backdated to July 20, then denied the request to restore the original as a superseded order on the view that the inaccuracies were "clerical" (at 5, 7). The panel observed that it was "grateful" and "indeed, lucky" that the defendants had filed a copy of the original as an exhibit, "given that Judge Wingate kept it from public view" (at 7 n.7).

The opinion then records that U.S. Senator Chuck Grassley accused the district court of using artificial intelligence to prepare the TRO, and that the judge then admitted the errors. The opinion describes that admission two ways. At page 5 it says that after the accusations made national headlines, "Judge Wingate admitted to having used AI to prepare the TRO and blamed the errors on his law clerk's employment of AI in drafting it." At page 7 it says he "admitted the errors, claiming that a law clerk had used AI to assist drafting an earlier version of the TRO that was docketed by mistake." The page-7 passage says this came fifteen days after the accusation, although the opinion's own footnotes date Senator Grassley's letter October 6, 2025 and Judge Wingate's responding letter October 2, 2025 (at 7 nn.8-9); we give the dates as the opinion gives them. His letter said the errors were clerical because they related not to "core legal reasoning or the ultimate judgment on the merits" but to a "failure to confirm the accuracy of certain information." The panel answered in a footnote that it is "not clear to this court how so many mistaken facts could not at least marginally 'affect' 'core legal reasoning' or support for the judgment on the merits" (at 8 n.10).

The citation discovered at oral argument

The preliminary injunction order "generally incorporates by reference its discussion and analysis in its TRO" (at 8 n.14), so the corrected TRO travelled with it to the Fifth Circuit. At oral argument in the Fifth Circuit it was discovered that the corrected document still cited "Cousins v. School Bd. of City of Norfolk, 503 F.2d 422, 426-27 (4th Cir. 1974)."

"That case does not even exist; it is an apparent AI hallucination." Jackson Federation of Teachers v. Fitch, No. 25-60496, at 8 n.13 (5th Cir. Oct. 22, 2026)

The same footnote adds that the volume and page cited, 503 F.2d 422, fall in the middle of United States v. Anderson, 503 F.2d 420 (6th Cir. 1974), and that the pinpoint pages 426 to 427 fall inside Avis Rent A Car System, Inc. v. United States, 503 F.2d 423 (2d Cir. 1974).

We checked that reporter page independently, and here is exactly how. Volume 503 of the Federal Reporter, Second Series, as digitized from the published volume by the Harvard Law School Library's Caselaw Access Project, contains 252 decisions, fourteen of them from the Fourth Circuit. None of the fourteen is captioned Cousins, and the Fourth Circuit decisions bracketing the disputed page begin at 503 F.2d 333 (Paturzo v. Home Life Insurance) and 503 F.2d 472 (Patler v. Slayton). The volume does contain a real Cousins: Cousins v. City Council of the City of Chicago, 503 F.2d 912, a Seventh Circuit decision of September 9, 1974 about the Chicago city council, not a Fourth Circuit school-board case at page 422. Page 422 sits inside United States v. Anderson, 503 F.2d 420, decided by the Sixth Circuit on September 24, 1974, and pages 426 to 427 sit inside Avis Rent A Car System, Inc. v. United States, 503 F.2d 423, decided by the Second Circuit the same day. That matches the footnote exactly. The limit of the check is worth stating plainly: it establishes that no Fourth Circuit decision by that name occupies the cited pages, not that no decision of that name exists anywhere in the reports. CourtListener's citation lookup and Justia's reporter pages were both unreachable during this session, so we report the non-existence of the case as the Fifth Circuit's finding, attributed to the Fifth Circuit, rather than as our own conclusion.

The legal errors the panel identified

Separately from the fabricated material, the panel faulted the substance of the orders. It wrote that the corrected TRO's merits analysis "failed to cite a binding authority from after the year 2000" (at 8) and that the preliminary injunction referenced Moody v. NetChoice "only to circumvent it," twice calling the Moody framework "supposedly" required (at 9, 11). It said the district court's reasoning that an injunction "should issue when a key consideration is yet undetermined" "gets the entire law of injunctive relief completely backwards" (at 11-12). And it said the order's reading of Trump v. CASA to mean that injunctions "should be all-or-nothing renditions" was "almost exactly the opposite of what CASA says" (at 12).

What the Law Actually Says

Two separate bodies of law are in play here, and the opinion keeps them apart. The first governs when an appellate court may undo a preliminary injunction and, far more rarely, move a case away from the judge who issued it. The second is the constitutional law the new judge has been told to apply.

Vacating an injunction, and the extraordinary remedy of reassignment

A preliminary injunction is reviewed for abuse of discretion, with questions of law reviewed de novo and factual determinations for clear error, under Atchafalaya Basinkeeper v. United States Army Corps of Engineers, 894 F.3d 692, 696 (5th Cir. 2018). A district court that grants an injunction on incorrect legal principles, the panel noted, "[b]y definition" abuses its discretion, quoting Little v. Llano County, 138 F.4th 834, 842 n.7 (5th Cir.) (en banc), cert. denied, 146 S. Ct. 886 (2025) (at 6).

The movant carries the burden, and the showing required is likelihood of success, not a possibility of it. The panel cited Planned Parenthood v. Kauffman, 981 F.3d 347, 353 (5th Cir. 2020) (en banc), for the proposition that injunctive relief is an extraordinary remedy with a high bar, and said that "[t]he law forbids district courts from 'pausing' if the outcome is totally uncertain" (at 12).

Reassignment is a different and much narrower power. It rests on the courts of appeals' supervisory authority and on 28 U.S.C. Section 2106, which lets an appellate court "require such further proceedings to be had as may be just under the circumstances." The panel described it as "extraordinary" and "rarely invoked," so rarely that the circuit has not settled which of two tests governs (at 13). It applied both. The first, from Willey v. Harris County District Attorney, 27 F.4th 1125, 1137 (5th Cir. 2022), quoting In re DaimlerChrysler Corp., 294 F.3d 697, 700-01 (5th Cir. 2002), asks whether the original judge would reasonably be expected to have "substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous," whether reassignment is advisable "to preserve the appearance of justice," and whether any "waste and duplication" caused by reassignment would "disproportionately outweigh" "any gain in preserving the appearance of fairness." The second asks whether the circumstances "might reasonably cause an objective observer to question the judge's impartiality."

Applying the first test, the panel reasoned that excising the hallucinated material without explaining why the order still stood "may already evince a 'substantial difficulty' in setting aside views based on 'findings determined to be erroneous'"; that "the public esteem for the judiciary would be diminished" by returning the case to the same judge; and that the waste of the tainted proceedings was "already on the balance sheet" (at 14-15). It found the second test satisfied for the same reasons. This is a remedy about the appearance and integrity of the proceedings. The opinion imposes no sanction and says nothing about judicial discipline, which runs through a separate statutory channel.

The First Amendment and vagueness standards for remand

Part III of the opinion is an instruction set, not a ruling on the merits. It begins where Moody v. NetChoice, LLC, 603 U.S. 707 (2024), says a facial analysis must begin.

Moody holds that facial challenges are "hard to win" and that, in the First Amendment setting, a plaintiff must show that a law's "unconstitutional applications substantially outweigh its constitutional ones" (603 U.S. at 723-24). The Supreme Court set out two steps: first "assess the state [law's] scope," asking what activities, by what actors, the law reaches; then decide which applications violate the First Amendment, which means a court must "explore the laws' full range of applications," both "the constitutionally impermissible and permissible," and "compare the two sets" (id. at 724-26). The Fifth Circuit frames step two as asking whether "the ratio of unlawful-to-lawful applications" is so "lopsided" as substantially to outweigh the lawful reach of the law, citing Students Engaged in Advancing Texas ex rel. Fernandez v. Paxton, 177 F.4th 665, 672 n.19 (5th Cir. 2026) (at 10-11).

On step one, the panel read the Act. It held that H.B. 1193 regulates public schools and public colleges, including teachers, professors and other educators, under Sections 1 and 2(f) and (g), and that "the Act does not apply to students" (at 16, 21). It grouped the prohibitions in Section 3 into five categories and walked through the Section 5 exceptions, including scholarly research and creative work, the activities of registered student organizations where state funds are not used, and compliance with accreditation standards (at 17-20).

On step two, the panel named the governing rules rather than applying them. The instructions are not neutral in effect. The panel wrote that H.B. 1193 "primarily regulates the curricula and public speech of official organs of the state" and that "most of its sweep rests squarely within the heartland of the state government's plenary police power" (at 22), that Chiras "applies and rightly protects Mississippi's constitutionally preserved plenary power" (at 24), that the plaintiffs "vastly overstate the plainly legitimate sweep" of the Act and are "wrong to claim" that Section 3(b) would bar teaching civil rights history, Dr. King, the Klan, the Fourteenth Amendment, Juneteenth or Of Mice and Men (at 20 nn.30-31), and that "[t]he plaintiffs have a high burden to show that this policy is unlawful" (at 26). It still stopped short of deciding the constitutional question, which it left to the new judge. For textbooks, curricula, classroom instruction and other official activities of public institutions, it said states possess broad power "free from [the First Amendment's] viewpoint-neutrality requirement" to "promote policies and values of its own choosing," quoting Chiras v. Miller, 432 F.3d 606, 611, 613 (5th Cir. 2005), and it cited Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 833 (1995), for the proposition that when a university determines the content of the education it provides, "it is the University speaking" (at 21-23). Where personal, non-curricular speech by teachers and professors is implicated, it directed the district court to apply the Garcetti framework as set out in Kennedy v. Bremerton School District, 597 U.S. 507, 527-28 (2022): decide whether the employee is speaking pursuant to official duties, and if not, balance the state's interests against the individual speech interest (at 22-24).

On vagueness, the panel said a law may be found facially void only where it "is so unclear" that people "must necessarily guess at its meaning and differ as to its application" "in all of its applications," quoting McClelland v. Katy Independent School District, 63 F.4th 996, 1013 (5th Cir. 2023). "[h]ypothetical interactions" and "speculative scenarios" will not carry a vagueness challenge where context lets an average observer grasp a "common-sense core of meaning," quoting La Union del Pueblo Entero v. Abbott, 167 F.4th 743, 758-59 (5th Cir. 2026). The opinion notes that terms such as "promote" and "support" have survived vagueness challenges before (at 24-26).

Analysis: Why This Matters

The following is analysis from the Recording Law Editorial Team.

The salient fact in this record is not that fabricated authority turned up in a federal case. It is where it turned up. The material the Fifth Circuit describes sat in orders issued by the court itself, including one that restrained enforcement of a state statute, and the fabricated citation survived a correction pass: the opinion says it was not discovered until oral argument in the court of appeals (at 3, 8 n.13).

The hedge in the opinion is doing real work, and it should not be flattened. The panel recorded an admission and put it two ways: at page 5 that the judge "admitted to having used AI to prepare the TRO and blamed the errors on his law clerk's employment of AI in drafting it", and at page 7 that he admitted the errors, claiming a law clerk had used AI in drafting an earlier version of the TRO that was docketed by mistake. When the panel turned to a different complaint, the handling of governing law, it wrote of "[t]he district court" and then added "or perhaps, being charitable, its AI agent" (at 4). Those are two different statements about two different things. The first is an admission the opinion reports; the second is a parenthetical the panel expressly offers as the charitable alternative. Reporting the second as a finding that AI wrote the legal analysis would be the same category of error the opinion is complaining about.

Docket hygiene turned out to be load-bearing. The original order was pulled from public view and replaced with a backdated version, and the panel's first reassignment factor leaned partly on the fact that the court "merely excised the AI-hallucinated 'facts'" without explaining why the order still stood (at 14). The original reached the appellate record only because the state defendants attached a copy to their July 28 motion, which the panel said it was "grateful" and "indeed, lucky" to have, "given that Judge Wingate kept it from public view" (at 7 n.7). A correction that removes the evidence of the error removes the material a reviewing court needs.

There is a structural point here about who checks what. Opposing counsel has every incentive to run down the authorities in the other side's brief, and an adversarial system relies on that. Nothing in this record describes a comparable check on the order itself: by the opinion's account the fabricated citation came through the judge's own correction of the TRO, a round of motion practice and full appellate briefing before it surfaced at argument (at 7, 8 and 8 n.13). The same pattern has now shown up in at least one state high court: as we reported, the Idaho Supreme Court found in September 2026 that only six of twenty-two quotations in one litigant's briefing were accurate and that two cited cases did not exist, in a defamation appeal where the court flagged apparent AI use without imposing a sanction.

The rule-making response is running on a separate and slower track. Proposals to handle AI-generated material under the Federal Rules of Evidence remain at the draft stage, as our explainer on draft Rule 901(c) and the stalled Rule 707 sets out, and those rules are about evidence offered by parties, not about how an order gets drafted. Mississippi's own enacted AI measures target election deepfakes, AI-generated child sexual abuse material and a statutory definition of the technology, as our survey of Mississippi's AI statutes and executive action sets out. None of those measures addresses how a court drafts its own orders.

Finally, the opinion is a reminder that Moody changed the mechanics of facial litigation and that the change has teeth. The panel's complaint was not that the district court weighed the Act's applications and got the balance wrong. It was that no comparison was performed at all, and that the framework was twice described as only "supposedly" required (at 9, 11). Part III then does what the Supreme Court did in Moody itself: it maps the statute and names the standards so the analysis on remand "proceeds on the right path" (Moody, 603 U.S. at 726).

What Happens Next

The case returns to the Southern District of Mississippi, where the Chief Judge has been directed to assign it to a different district judge for all further proceedings (at 27). The panel vacated the preliminary injunction. A court of appeals judgment takes effect when the mandate issues, which under Federal Rule of Appellate Procedure 41(b) is normally seven days after the time to petition for rehearing runs out, and we could not confirm whether the mandate has issued here because the docket is behind PACER. The panel did not rule on whether H.B. 1193 is constitutional, and the opinion is explicit that the new judge is to apply the law set out in Part III to each application within the Act's foreseeable scope and then decide whether "the ratio of unlawful-to-lawful applications" is "lopsided" enough to support facial invalidation (at 26-27).

Judge Haynes concurred in a single paragraph, writing that she concurs "in the last paragraph of the majority opinion," that it is "important on the remand to take a more full look at the House Bill 1193 in play," and 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" (at 28). Because her concurrence reaches only the disposition, the reasoning in Parts I through III is the opinion of the two remaining panel members. Two of three judges is still a panel majority, so Parts I through III are the opinion of the court and bind district courts in the circuit.

One dated item is worth tracking from the opinion's own footnotes. At page 22 note 34 the panel disagrees with the Eleventh Circuit's decision in Pernell v. Florida Board of Governors of State University, 181 F.4th 1135 (11th Cir. 2026), which held that the Kennedy and Garcetti framework stops at high school, and records that a petition for certiorari in that case was filed on October 5, 2026 (No. 26-475). Whether the Supreme Court takes that question up would bear directly on the First Amendment instructions in this opinion.

We could not confirm whether any petition for rehearing or rehearing en banc has been filed in this case, because the Fifth Circuit's docket is behind PACER. As of October 24, 2026 the court's opinions server carried only the original October 22 opinion, with no revised or amended version.

This is general legal information, not legal advice. It covers one published Fifth Circuit decision and one Mississippi statute, and reflects primary sources verified on October 24, 2026. Laws change, this case is live and at an interlocutory stage, and nothing here is a prediction of how it will be resolved. Consult a lawyer licensed in your jurisdiction about your specific situation.

Related articles

• State and federal AI legislation, tracked
• Idaho Supreme Court flags AI-faked citations in a defamation appeal
• Draft evidence rules for AI-generated material
• US deepfake laws, state by state

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Last updated: 2026-10-24. This is a developing story; details verified as of 2026-10-24.

Frequently Asked Questions

Did the Fifth Circuit uphold Mississippi's anti-DEI law?

No. The panel vacated the preliminary injunction and remanded. It expressly did not decide whether H.B. 1193 is constitutional, and Part III of the opinion tells the new district judge which standards to apply and leaves the Moody comparison to that judge (at 16-27).

What exactly was fabricated in the district court's orders?

According to the opinion, the July 20, 2025 TRO named eleven individuals and organizations as plaintiffs who had never been parties, named two officials as defendants who were not actually sued in those capacities, asserted without evidence that three post-secondary institutions had cancelled DEI programming, misquoted H.B. 1193 using terms that do not appear in the Act, and referenced declarations of four individuals who, in the panel's words, do not appear in the record at all and may not even exist (at 6-7).

Did the judge use AI to write the order?

The opinion reports that after the accusation was made publicly, the judge admitted the errors and said a law clerk had used AI to assist in drafting an earlier version of the TRO that was docketed by mistake (at 5, 7). Separately, when describing the handling of governing law in the orders, the panel wrote of the district court 'or perhaps, being charitable, its AI agent' (at 4). That parenthetical is offered as a charitable alternative, not as a finding, and this article does not treat it as one.

Is Cousins v. School Bd. of City of Norfolk a real case?

The Fifth Circuit found that it is not, writing that the case 'does not even exist' and that it is 'an apparent AI hallucination' (at 8 n.13). We confirmed independently that the pages cited, 503 F.2d 422 and 426-27, are occupied by United States v. Anderson, 503 F.2d 420 (6th Cir. 1974) and Avis Rent A Car System, Inc. v. United States, 503 F.2d 423 (2d Cir. 1974), and that none of the fourteen Fourth Circuit decisions in that volume is captioned Cousins. We report the non-existence of the case as the court's finding.

How unusual is it for an appeals court to order a case reassigned to a new judge?

The Fifth Circuit described reassignment on remand as an 'extraordinary' and 'rarely invoked' power, exercised so sparingly that the circuit has not settled which of two tests governs it (at 13). It rests on the court's supervisory authority and on 28 U.S.C. Section 2106. Here the panel applied both tests and found both satisfied (at 13-15).

Can Mississippi enforce H.B. 1193 now?

The panel vacated the preliminary injunction that barred enforcement on October 22, 2026 and ordered no substitute relief. Vacatur takes effect when the Fifth Circuit's mandate issues (Fed. R. App. P. 41), and we could not confirm whether it has. The litigation continues before a new district judge, so the posture can change, and this article does not report on the timing of the mandate or on any later district court order. Anyone whose situation turns on the answer should check the current docket and consult a lawyer licensed in Mississippi.

What standard will the new district judge apply to the First Amendment claim?

Per the opinion, the two-step Moody analysis. For curricula, textbooks and classroom instruction the panel pointed to Chiras v. Miller, 432 F.3d 606 (5th Cir. 2005) and the government-speech line of cases; for personal, non-curricular speech by educators it pointed to the Garcetti framework as applied in Kennedy v. Bremerton School District, 597 U.S. 507, 527-28 (2022) (at 21-24).