The abbreviation “EO” often stands for “executive order.” But when used in connection with President Donald Trump’s Executive Order on Combating Race and Sex Stereotyping, which perversely protects racism and sexism, EO could just as easily mean “extremely Orwellian.”
The timing of this order, just weeks before the November election, has led observers to conclude that the order “is a thinly veiled part of the president’s overall strategy to stoke racial division in an already fractured country for his own political purposes.” But as dangerous as that sounds, this article explains how the EO and related actions of the government are bigger and far worse—and why nonprofits need to pay attention.
We start with the chaos that is already occurring. The immediate—and predictable—result of a series of White House directives is that federal agencies have started canceling trainings, including the US Environmental Protection Agency, National Park Service (on disability access to parks and sexual harassment), and Veterans Administration.
The US Department of Justice (DOJ) blocked a September 29 training session on implicit bias in the criminal justice system that was to be conducted by a judge who has provided the training for years. Initially, DOJ assured the judge his training could proceed “as long as he promised not to use such words as ‘white privilege’ and ‘critical race theory.’” But when the EO was issued, DOJ told him his “bias-training class for federal prosecutors now needed ‘additional approval.’” The judge called DOJ’s action “chilling” and said, “That’s what authoritarian dictators do. ‘We will write the history. We will tell you what the truth is. Your job is to believe what we tell you.’ That’s where we’re headed, and it’s horrifying.”
Beware—this EO activates Orwell’s Big Brother.
Shifting Civil Rights Law into Reverse
Since the beginning of September, the White House has unleashed a barrage of orders and instructions designed to disrupt the views of mainstream America that being informed about racial and gender diversity, equity, and inclusion is essential to the healing and well-being of the country and important for high-performing organizations.
Beginning on September 4, the director of the White House Office of Management & Budget (OMB) ordered that all “Federal agencies cease and desist from using taxpayer dollars to fund any training on ‘critical race theory’ and ‘white privilege,’” which the directive labeled as “divisive, un-American propaganda” (M-20-34, the “First Memo”).
This new policy has been credited to someone who had appeared days earlier on Tucker Carlson’s Fox News program and “boldly declared a one-man war on critical race theory” and “urged President Trump to take action against the trend and end what he described as ‘White privilege’ indoctrination within federal agencies.” A few days later, “Mr. Trump signed an executive order doing just that.” The director of OMB later thanked the proponent via tweet for identifying trainings at EPA and the departments of State and Veterans Affairs that were then cancelled.
Trump declared on September 17 he will “create a commission to promote ‘patriotic education’ and announced the creation of a grant to develop a ‘pro-American curriculum,’” NPR reported. NPR described the developments as a reaction “against recent moves to tell a more evenhanded version of the nation’s history, including its early foundational reliance on slave labor and the longtime disenfranchisement of and systemic racism against racial minorities.”
The barrage continued on September 22 when Trump signed his Executive Order on Combating Race and Sex Stereotyping (EO). It prohibits federal departments and agencies, the military, federal contractors, and to some extent federal grant recipients from providing training on race or sex diversity, equity, or inclusion involving 11 “divisive concepts.” These banned concepts include anything that might make someone “feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex” [Sec. 2(a)(8)].
This EO expresses concern about workplace diversity trainings that suggest “men and members of certain races, as well as our most venerable institutions, are inherently sexist and racist” [Sec. 1]. To illustrate what it prohibits, the EO decries a museum graphic stating, “Facing your whiteness is hard and can result in feelings of guilt, sadness, confusion, defensiveness, or fear.”
Most recently, the OMB Director threw the full weight of the federal government behind this ban with a September 28 memorandum (M-20-37, the “Second Memo”) to all executive departments and agencies suggesting that while some federal agency trainings promote diversity and inclusiveness, a smaller pool of training does neither.
How to tell the difference? First, the Second Memo mandates a review of specific training curriculum materials (for what, exactly, is unclear). Next, it requires bureaucrats to conduct “a broader keyword search of agency financial data and procurements for terms including, but not limited to: ‘critical race theory,’ ‘white privilege,’ ‘intersectionality,’ ‘systemic racism,’ ‘positionality,’ ‘racial humility,’ and ‘unconscious bias.’”
The Second Memo then goes even further into the unknown: “Searching for these key words without additional review does not satisfy the review requirements of the EO,” so more review is necessary. What to look for to determine what is allowable (and presumably “American”) versus what is to be deemed “anti-American” and therefore forbidden, however, remains vague and ambiguous.
Read together, these actions add up to an unlabeled—or more accurately, a deceptively labeled—package to protect the feelings of white men: if a race or gender equity training causes someone to “feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex,” then it shall not be done. And when read with the outsized enforcement scheme (see below), it’s clear that the EO is not about “Combating Race and Sex Stereotyping,” as it claims. Rather, the EO subverts that stated objective “by defining divisive concepts in a way that turns mechanisms intended to protect into weapons of divisiveness and exclusion.” Ostensibly a policy to advance equal and fair treatment, the EO provides the reverse.
What the EO Covers
The EO generally applies to five groups: the federal workforce, the US uniformed services, government contractors, grantees, and a potential wildcard of all employers in the country. Some nonprofits could fall into one or more of the last three categories.
For contractors, the EO dictates that “every Government contract” signed after November 21, 2020 (60 days after the EO’s issuance) shall contain four specific provisions, including that the “contractor shall not use any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating, including” any of 11 so-called “divisive concepts” [Sec. 4(a)(1), emphases added]. New contracts must also require government contractors to include the training restrictions in “every subcontract or purchase order,” and contractors must enforce those provisions, “including sanctions for noncompliance,” thereby pulling contractors into the enforcement morass.
Grantees have more time. November 21 is the deadline for federal agencies to report to OMB all grant “programs for which the agency may, as a condition of receiving such a grant, require the recipient to certify that it will not use Federal funds to promote the concepts” [Sec. 5, emphases added]. Presumably, federal agencies will insert the restrictions into future grants after the master list is assembled.
Note that grantees “promoting the concepts”—in any context, whether for their own employees, government employees, or third parties—is broader than contractors doing “workforce training” for their own employees. Another difference is that the ban for grantees is on using federal funds to “promote the concepts” (whatever that means), so grantees presumably could use private funds for equity training [Sec. 4(a)(4)].
Finally, it appears there may be a forthcoming attempt to extend this notion of “protect the feelings of white men above all else” to cover all employers. Normally, the Equal Employment Opportunity Commission enforces Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination based on race, color, religion, sex and national origin. But the EO contains a disturbing directive that Attorney General William Barr “should continue to assess the extent to which workplace training that teaches the divisive concepts set forth in section 2(a) of this order may contribute to a hostile work environment and give rise to potential liability” [Sec. 8, emphasis added].
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The word “continue” suggests Barr has been working on it already. This would be a significant expansion that could reach all employers—including nonprofits—aimed at severely limiting the training they provide to their own employees on a broad range of racial and gender diversity, equity, and inclusion matters. This lurks as the coup de grace, the weaponizing of the DOJ to attempt to flip longstanding nondiscrimination laws created to protect people of color upside down and inside out so they protect the feelings of white men.
Big Brother is Watching
The stunning breadth and severity of enforcement tools in the EO foreshadow a grander design. It begins by setting a low and amorphous bar for a possible violation: anything that could make any individual “feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex.” That standard is too vague to give people notice of what is prohibited, and it gives the government arbitrary power to enforce against anyone it wants to intimidate, silence, and punish.
Next, it requires centralized pre-publication review, combined with the threat of adverse job consequences if any training is approved that is later deemed to contain banned content. Plus, it threatens contractors with loss of existing contracts, as well as possible debarment from future contracts, if a prohibited concept is uttered.
The policy also seeks to create an army of informants to search for and report any perceived violations via a complaint hotline that has been activated already. And that is not even all of the EO’s enforcement power to control thoughts about the need for and ways to achieve racial and gender equity. In short, Big Brother has arrived and is watching you.
Any notion of fairness is belied by the exuberance and speed with which bureaucrats appear to be working to operationalize the EO. According to a US Department of Labor (DOL) news release on September 28, the EO’s “specific requirements for Federal contractors apply only to those with Federal contracts entered into 60 days after the date of the order, or Nov. 21, 2020.”
However, it may not be wise to rely on this explicit start date. DOL’s news release continues: “training programs prohibited by the new Executive Order may also violate a contractor’s obligations under the existing Executive Order 11246, which prohibits discrimination based on race, color, religion, sex, sexual orientation, gender identity, national origin….”
Thus, it appears that the administration is trying to bootstrap its anything-that-could-offend-a-white-male prohibition into Executive Order 11246, issued by President Lyndon Johnson in 1965 to ensure “equal opportunity for minorities in federal contractors’ recruitment, hiring, training and other employment practices.” In the name of nondiscrimination, the EO attempts to turn back the clock to before the Civil Rights Act.
Bottom-line: The overreaching EO deploys intimidation, informants, and enforcers to banish ideas and words. It could essentially shut down trainings on race equity, gender equity, unconscious bias, systemic racism, and almost any topic concerning race or gender diversity, equity, and inclusion.
Likely Legal Challenges
Numerous law firms have posted assessments similar to this news report: “Behind the scenes, individual companies and industry groups are supporting efforts to mount a legal challenge to the executive order, similar to industry opposition to the president’s Muslim travel ban.”
As with legal challenges to that travel ban and many other recent Executive Orders and decisions—including those regarding sanctuary cities, DACA [deferred action for childhood arrivals], federal employment, and the census citizenship question—multiple lawsuits likely will be filed in different places of the country. The parties most likely to challenge the EO in court include for-profit businesses, state attorneys general and local government groups, nonprofits, civil rights groups, health care providers, higher education, and others.
Expect the challengers to raise a litany of issues, including:
- The EO is unconstitutional, violating due process (vague and ambiguous, e.g., what does “inculcate” mean? what does “promote the concepts” mean?) and free speech (prior restraint and overly broad).
- The EO conflicts with existing civil rights laws, including Title VII.
- The EO violates various statutes and procedural requirements, including the Administrative Procedure Act, the Paperwork Reduction Act, the Federal Acquisition Regulation, and the OMB Uniform Guidance governing federal grants.
Several law firms predict that the ultimate fate of the EO may hinge on the results of the presidential election. Morrison & Forrester observes, “If Trump is reelected, the Trump administration will push forward with implementation of the EO and fight any legal challenges. If former Vice President Joe Biden is elected, however, the EO will likely be rescinded at some point, even if implemented briefly by a lame duck Trump administration.” Baker & McKenzie issued a similar assessment, as has Gibson Dunn and other firms.
Stopping the EO: Moving beyond Outrage to Action
How can nonprofits respond?
It is easy to get whipped up into furious outrage. It is reprehensible that the EO attempts to use the federal government to shield white nationalism and sexism, not to mention the Orwellian flair of invoking as purported justification the Declaration of Independence, Abraham Lincoln, and Dr. Martin Luther King. Yet with firm resolve to reverse these unjust policies, let’s take a deep breath to look at what we can control.
In terms of taking action, there are a few distinct actions available. Certainly, litigation is among these.
For nonprofits with government contracts, most can relax a tad about your immediate revenue stream, because the EO’s specified language about restrictions on “workplace trainings” of your own employees will be inserted into contracts entered after November 21 and will be enforceable only after that. But be on the alert for any proposed regulations, because you can file public comments. Also, look for advance notice from your contracting agency about proposed contract language they intend to use after November 21.
For nonprofits with government grants, agency heads have until November 21 to identify grant programs that may need to have the restrictions inserted into future grants after that time. But even then, you’ll still be able to use non-federal funds to deliver such training. Again, watch for any announcements from your granting agencies.
Whether you have government contracts or grants, you’re on the frontlines and may see proposed language first. If your nonprofit is part of a network, please send information you see to your state or national offices. Please share with the National Council on Nonprofits as well to aid with national tracking of trends.
For the entire nonprofit community, we’ve seen too many times how this trap plays out: laws and norms are broken, and the public is egged on to express outrage, generating yet another heated controversy that further divides our country.
We have a choice: we can fall for the trap yet again, or we can focus our resolve and (1) double-down on our commitment to advance racial and gender equity, (2) support organizations working to have the courts strike down the EO, and (3) express our firm opposition to the scheme by submitting formal comments in any rulemaking process. The EO must be stopped. And with our focused resolve and forceful opposition, it will be.