CLIENT ALERT: EXECUTIVE ORDER ON COMBATING RACE AND SEX STEREOTYPING LIMITS CERTAIN TYPES OF DIVERSITY TRAINING

By: Debbie Osgood and Linh T. Nguyen

On September 22, 2020, President Trump signed an Executive Order on Combating Race and Sex Stereotyping (“EO”) to combat, in the Trump Administration’s view, “offensive and anti-American race and sex stereotyping and scapegoating” in certain diversity trainings hosted by executive departments and agencies, the Uniformed Services, Federal contractors, and Federal grant recipients. The EO states that it “shall be the policy of the United States not to promote race or sex stereotyping or scapegoating in the Federal workforce or in the Uniformed Services, and not to allow grant funds to be used for these purposes. In addition, Federal contractors will not be permitted to inculcate such views in their employees.”

The EO expands upon the Trump Administration’s instruction to Federal agencies earlier this month to identify and stop funding for training programs on critical race theory or that suggest “the United States is an inherently racist or evil country” or that “any race or ethnicity is inherently racist or evil.”  The Administration’s approach has already garnered public criticism that it wildly mischaracterizes critical race theory in diversity training and that such training can, in fact, improve decision-making in the workplace and the effectiveness of federal programs.

We’ve summarized below the race and sex theories that the Trump Administration now prohibits in diversity training, as well as other notable aspects of the Executive Order.

• The EO prohibits the use of federal funds towards “divisive concepts” that promote race or sex stereotyping or scapegoating. “Divisive concepts” are generally prevalent in trainings that focus on implicit bias and systematic racism, and according to the Trump Administration, specifically include ideas that: (1) one race or sex is superior to another; (2) the United States is fundamentally racist or sexist; (3) an individual, by virtue of their race or sex, is inherently racist, sexist, or oppressive; (4) an individual should be discriminated against because of race or sex; (5) members of one race or sex cannot and should not attempt to treat members of another race or sex with respect; (6) an individual’s moral character is determined by their race or sex; (7) an individual, by virtue of their race or sex, bears responsibility for past actions by a member of their race or sex; (8) an individual should feel discomfort, guilt, or any other form of psychological distress due to their race or sex; or (9) meritocracy was created by a particular race to oppress other races.
• Similarly, the EO states that the term, “race or sex scapegoating,” refers to viewpoints that ascribe certain traits and other characteristics to an individual because of his or her race or sex, assign blame or fault to members of a certain race or sex, or that suggest members of a certain race or sex are inclined to oppress others.  
• Relevant to higher education, the EO requires the Secretary of Education and other agency heads to identify within 60 days grant programs that can require, as a condition of the grant, certification that the recipient will not use funds to “promote divisive concepts.” The EO does not direct agencies, at this point, to require this new certification. The EO provides as a general provision that none of the directives in the EO should be construed as limiting academic freedom at higher educational institutions, so long as the divisive concepts are discussed “in an objective manner and without endorsement.”  
• For Federal contractors, contracts entered into 60 days after issuance of the EO must prohibit workplace diversity training that may instill “divisive concepts” of race or sex stereotyping. These provisions are to be incorporated into all contractor and subcontractor agreements. Contractors will also be required to send and post notices about the EO to labor unions with whom they hold a collective bargaining agreement. Noncompliance with the EO can result in cancellation, termination, or suspension of the contract, and in some instances debarment of the contractor.

HMBR will monitor and alert clients of new information related to this EO, including grant programs the Secretary of Education identifies in her report to OMB, due by November 21, 2020. HMBR is available to provide specific advice on how this development may affect your campus policies and procedures. Should you like assistance, please contact HMBR’s Higher Education Group at 312-946-1800.