On September 22, 2020, President Trump issued a new executive order intended “to combat offensive and anti-American race and sex stereotyping.” The order aims to shape how diversity training is conducted not only within the government, but also by federal contractors and recipients of federal grants. It also sets the stage for its restrictions on diversity training to be incorporated more broadly into federal guidance on hostile work environments.

Summary of the Executive Order

The order is centered on its designation of certain principles as “divisive concepts.” This term is defined to include “the concepts that (1) one race or sex is inherently superior to another race or sex; (2) the United States is fundamentally racist or sexist; (3) an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously; (4) an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex; (5) members of one race or sex cannot and should not attempt to treat others without respect to race or sex; (6) an individual’s moral character is necessarily determined by his or her race or sex; (7) an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex; (8) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or (9) meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.” 

The order also covers what it refers to as race or sex “stereotyping” or “scapegoating,” defined to include assigning character traits, values, moral and ethical codes, privileges, status, fault, blame or bias, or deeming an individual to be inherently racist or sexist, on the basis of that person’s race or sex.

Within the government, the order mandates that the US uniformed services may not “teach, instruct, or train” any member to “believe” what the order calls “divisive concepts.” It also requires the heads of federal agencies to ensure that agencies and their employers and contractors do not teach the proscribed concepts.

The order also includes three provisions affecting organizations outside the government: 

• First, beginning 60 days from the effective date of the order, all new agreements with federal contractors must include provisions forbidding the contractor from using any workplace training that “inculcates in its employees” the “divisive concepts” defined above. Contractors are also required to include similar terms in any subcontracts and to provide notice of the executive order and related commitments to employees and to any labor unions with which they have collective bargaining agreements. Failure to comply with these provisions may result in cancellation or termination of the federal contract and in the contractor being declared ineligible for future contracts.
• Second, the order requires all agency heads to identify programs for which the agency may condition receipt of a federal grant on the certification that the grant recipient will not use federal funds to “promote” the concepts discussed above. Whereas the restrictions for contractors cover “workplace training,” the restrictions on grantees also cover use of funds for “promoting the concepts” that are prohibited by the order.
• Third, the order directs the attorney general to assess whether workplace training “that teaches the divisive concepts” may contribute to a hostile work environment and give rise to liability under Title VII of the Civil Rights Act of 1964. It further directs the attorney general to issue public guidance as appropriate.

The Department of Labor will play an important role in enforcement of the order. It will set up a hotline to receive complaints about violations of the order. It will also publish a request for information from federal contractors and grantees, as well as their employees, about the content of diversity training, workshops and other similar programs.

The executive order includes potentially important carve-outs and limitations to its scope. For example, nothing in the order “shall be construed to prohibit discussing, as part of a larger course of academic instruction, the divisive concepts … in an objective manner and without endorsement.” It is not clear, however, that diversity training or workshops would be considered “part of a larger course of academic instruction,” especially at an educational institution. The executive order also does not prevent contractors or grantees “from promoting racial, cultural, or ethnic diversity or inclusiveness, provided such efforts are consistent with the requirements of this order.” The order does not further delineate what forms of promotion of diversity or inclusiveness would or would not fall within the restrictions.

Implications for Universities

The order’s requirements for government contracts affect only new contracts entered into 60 days from the date of the order, and the grant-based restrictions will not take effect until agencies have had time to review affected programs and determine whether the restrictions should be made a condition of federal grants. 

Universities that enter into new federal contracts (or renew contracts) must be cognizant of the contents of workplace diversity training provided to university employees, including both faculty and staff. If workplace training from covered universities is deemed to be “divisive,” those universities may have their contracts terminated and may be deemed ineligible for future contracts. Universities should therefore consider reviewing and/or collecting information about the content of diversity and inclusion training for their employees so they are fully cognizant of their current practices. 

In addition, universities applying for federal grant money should carefully review conditions of such grants to determine whether they include any restrictions on the use of federal funds to promote concepts discussed in the order. Although the order’s provisions concerning contractors pertain only to training given to employees, the provisions concerning federal grants are not so limited. Rather, they prohibit the use of federal funds to promote the purportedly “divisive concepts” to any audience. For universities, this has the potential to include students in addition to faculty or staff, as well as research grants supported by federal funds. Moreover, the breadth of the “divisive concepts” identified in the order could affect research, education and training in a variety of subject areas—for instance, regarding effects of systemic racism on the criminal justice system. At the same time, the restriction for grantees appears to be limited to the use of federal funds for promoting the concepts discussed in the order, not all the activities of a university that receives federal funds, although it may be difficult in some circumstances to determine what is and is not covered by the use of federal funds. While the specifics of any grant conditions will not be clear until they are implemented by agencies in response to the order, universities should be aware of the possible breadth of the restrictions, lest they lose grant funding or become subject to other consequences specified by the granting agency.

The executive order does limit its scope with respect to academics. In particular, as noted, the order states that none of its provisions “shall be construed to prohibit discussing, as part of a larger course of academic instruction, the divisive concepts listed [above] in an objective manner and without endorsement.” This provides universities with at least some latitude to discuss the covered concepts with students even in programs that receive federal funding, so long as the discussion does not affirmatively urge the adoption of the concepts addressed by the order, although whether concepts are presented “in an objective manner” may undoubtedly be subject to conflicting interpretations.

The executive order presents an array of potentially complex legal issues. Several of the key terms and concepts are not precisely defined and may be so vague and ambiguous that universities may have difficulty determining whether they are in compliance with the order. In addition, although the government’s authority to prohibit race and sex discrimination by its contractors is well settled, several of the provisions may stray over the line into unconstitutional suppression of free expression, especially depending on how those provisions are implemented and enforced. With respect to restrictions on federal grant recipients, although the order provides only that federal funds not be used to promote the concepts it addresses, the scope of that restriction is potentially unclear as well.

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WilmerHale is assisting some of the nation’s top universities in their response to civil rights issues. We routinely counsel clients on compliance with Title VI, Title IX, the Clery Act, the Campus SaVE Act, the Americans with Disabilities Act and the Rehabilitation Act. Our lawyers have represented clients facing Department of Education investigations, congressional inquiries, law enforcement subpoenas, lawsuits and public scrutiny. We also conduct internal reviews of university responses to specific incidents, and recommend policy and practice changes when appropriate.