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Why Trump’s diversity training ban is unconstitutional

Stephen Menendian, assistant director, Othering & Belonging Institute at UC Berkeley | October 16, 2020

On September 22, 2020, the Trump administration issued an Executive Order entitled “Executive Order on Combating Race and Sex Stereotyping” (E.O. 13950, 85 FR 60683). This long and comprehensive measure is ostensibly aimed at curbing racist or sexist content in the provision of diversity, equity or inclusion trainings in the federal workforce, including those for federal agencies and branches of the military.

In practice, however, it will prove quite pernicious: chilling protected speech, undermining, not advancing, racial inclusion and mutual understanding, and ultimately hampering efforts to address systemic and structural racism.

Following the uprisings this past summer, there has been a growing awareness that the problems of racial inequality in the United States are more systemic and structural than simply a product of inter-personal discrimination or animus. In short, there is a broader appreciation of the reality of structural racism, and a growing debate about how to solve it.

Part of that awareness has been a byproduct of relentless political education and expert trainings, especially those given on so-called DEI subjects, “Diversity, Equity, and Inclusion.” These trainings help spread awareness of both the extent of racial disparities in our systems (educational system, health care system, criminal justice system), as well as in the individual institutions in which they are conducted, such as federal agencies, and helps those agencies figure out what to do about them, such as by removing barriers or changing policies that have racially disparate impacts.

For an institution like UC Berkeley or an organization like our Institute, such trainings are the lifeblood of education, advocacy, and well-designed policy reforms. We conduct workshops and presentations with local leaders, students, organizations and communities on a regular basis. This executive order primarily applies to the federal workforce, but that workforce includes more than 2.1 million people, and especially critical agencies like the Department of Justice. But the fine print suggests it could also apply to any entity that receives federal funds, which means it could theoretically extend to localities and public universities. The ultimate scope of this order is incredibly broad.

The Executive Order prohibits two broad ideas and then eight specific precepts. It prohibits what it calls “Race or sex stereotyping,” which it defines as “ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex.” It also prohibits “Race or sex scapegoating,” which it defines as “assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex. It similarly encompasses any claim that, consciously or unconsciously, and by virtue of his or her race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others.”

It then prohibits eight specific precepts as training topics, including the notion that “One race or sex is inherently superior to another race or sex,” and that “An individual’s moral character is necessarily determined by his or her race or sex.” This full list is repeated several times in the Executive Order, but is first listed out in Section 2.

The Executive Order grossly misrepresents the nature of Diversity, Equity and Inclusion training. As someone who has conducted or helped prepare countless such trainings, I have never made such claims or anything close to such claims. Most of my training materials include data, facts, figures, laws and policies, and recommendations for reform or policy change. In fact, saying that a person is inherently superior because of their race or sex is not only antithetical to the concept of equity, it is one of the definitions of racism. It would be absurd for an antiracist training to trade in such claims.

But the enforcement structure created by this Executive Order is not only harmful to the goal of racial equity, it is also unconstitutional. First, it requires every federal contractor to comply with its provisions and include the prohibitions as contract terms. Failing to do so is not only grounds for terminating such contracts, but for losing the privilege of contracting with the federal government again.

To enforce this, the order requires the creation of a reporting hotline that will make it easier for anonymous informants to prompt investigations into compliance claims. It also directs the head of every federal agency to have a political appointee made part of the enforcement process. The order directs the head of Office of Management and Budget (OMB) and the Office of Personnel Management (OPM) to both issue regulations enforcing the order, and review all training materials before and after the fact.

This last provision, which requires OPM to review “all training programs for agency employees relating to diversity or inclusion … before being used” infringes on First Amendment rights of speakers by potentially operating as a “prior restraint.” Punishing contractors after the fact should more than suffice to compel enforcement. But requiring advanced review is antithetical to core constitutional liberties.

More broadly, these requirements, and the extensive enforcement apparatus, have a chilling effect. Already it has led to absurd outcomes, such as service members walking out of a screening of the Spike Lee biopic “Malcolm X” for fear of violating the order. But more seriously, it has already led to trainers cancelling contracts or agencies more hesitant to take on such trainings. For example, the Department of Justice suspended all Diversity and Inclusion trainings and postponed implicit bias training for prosecutors that was to occur in September. In short, this Executive Order is not only chilling constitutionally protected speech, but it is undermining the goal of racial equity itself, by making it harder to discuss, let alone address, systemic racism.

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