By Wayne D. Garris Jr., J.D.
Executive Order 13950 prohibits federal contractors from using “divisive concepts” regarding race and gender in their workplace trainings.
A federal district court in California has granted a preliminary injunction to block the Trump Administration’s “Executive Order on Combating Race and Sex Stereotyping.” The EO, which prohibits federal contractors and subcontractors from providing diversity training covering “divisive topics” to their employees, interfered with the First Amendment rights of LGBT advocacy groups by prohibiting them from using their own funds to provide training on racism and sexism to their own employees. Further, the Executive Order’s distinction between “teaching” versus “informing” employees about unconscious bias was so vague as to violate the groups’ due process rights. The court granted a nationwide injunction enjoining enforcement of the executive order while the litigation is pending (Santa Cruz Lesbian and Gay Community Center v. Trump, December 22, 2020,)
Executive Order 13950. On September 22, 2020, President Trump signed Executive Order 13950, “Executive Order on Combating Race and Sex Stereotyping.” The EO prohibits the United States Uniformed Services, federal agencies, and federal contractors from promoting a list of “divisive concepts” in workplace trainings such as systemic racism, implicit bias, Critical Race Theory, and white privilege. The Executive Order also directs agency heads to identify grant programs for which grants may be conditioned on the recipient’s certification that it will not use federal funds to promote the “divisive concepts.”
Lawsuit. The plaintiffs are a group of non-profit organizations and consultants that serve the LGBT community and people living with the HIV virus. Much of the plaintiffs’ work involves providing advocacy and training to businesses, local governments, and health care providers, as well as their own employees, about racism, sexism, and anti-LGBT bias.
The plaintiffs filed suit against President Trump and several federal agencies and officials claiming that the EO requires them “to censor or cease the trainings that are fundamental to their missions on pain of losing federal funding in the form of contracts and grants, in violation of the Free Speech Clause of the First Amendment.” They also argue that the EO is so vague that it does not provide notice of what speech is subject to penalty, in violation of the Due Process Clause of the Fifth Amendment.
Shortly after filing the lawsuit, the plaintiffs moved for a nationwide preliminary injunction, asking the court to enjoin all defendants (except President Trump) from enforcing the Executive Order. The plaintiffs sought an injunction only with respect to sections of the Executive Order dealing with federal contractors and grantees, not the sections governing the Uniformed Services or federal employees.
Standing. The court explained that because the plaintiffs here are pre-enforcement plaintiffs, the first inquiry is whether the plaintiffs have shown a reasonable likelihood that the government will enforce the challenged law against them. If so, the second inquiry is whether the plaintiffs have established that they intend to violate the challenged law. The third inquiry is whether the challenged law is applicable to the plaintiffs, either by its terms or as interpreted by the government.
Likelihood of enforcement. With respect to the reasonable likelihood of enforcement, the plaintiffs established that a significant amount of their funding comes from federal contracts and grants. For some plaintiffs, as much as 80 percent of their funding is from federal programs. The EO explicitly stated that, except for exceptions not applicable to the plaintiffs, all federal contracts are subject to the EO’s restrictions.
The government demonstrated its intent to enforce the EO by setting up a telephone hotline to report “race and sex stereotyping and scapegoating.” Further, the government’s RFI for the EO requested information from employees of contractors and subcontractors regarding prohibited trainings. As for grantees, the EO directs agency heads to identify programs for which grants may be conditioned on diversity training restrictions. Additionally, the OMB Director issued a memorandum instructing agencies to “look at all Federal grant and cooperative agreement programs, not just those for the purposes of providing training.”
The court concluded that there was enough evidence of the plaintiffs’ reliance on federal funding and the government’s intent to enforce the EO to conclude that enforcement of the EO against the plaintiffs was likely.
Intent to violate. In Susan B. Anthony List v. Driehaus, the Supreme Court held that it was sufficient that a petitioners’ “intended future conduct is arguably proscribed by the statute they wish to challenge” for a finding of intent to violate. Here, the plaintiffs submitted declarations establishing that providing internal and external trainings on “divisive concepts” such as racism, sexism, implicit bias, and white privilege was integral to their missions. The court concluded that it was clear from the declarations that the plaintiffs’ trainings would likely violate the EO.
Injury in fact. All of the plaintiffs are federal contractors or federal grantees who were subject to enforcement of Sections 4 and 5 of the EO, and the EO specifically targets issues and concepts on which the plaintiff agencies focus. Thus, the plaintiffs satisfied the injury in fact requirement for standing.
Remaining standing requirements. The court found that the threatened injury arises from, and thus is traceable to, Sections 4 and 5 of the EO and that injunctive relief enjoining the government from enforcing the EO would redress the threatened injury. Thus, the plaintiffs had standing.
First Amendment. The court then turned to the plaintiffs’ likelihood of success on the merits of their First Amendment claim. The plaintiffs argued that the EO violated the First Amendment, “because it impermissibly chills the exercise of the Plaintiffs’ constitutionally protected speech, based on the content and viewpoint of their speech.” The plaintiffs also argued that the EO penalizes them for engaging in protected First Amendment activity by leveraging the federal funding that is necessary to their missions and work.
Pickering applies. The court explained that the Pickering balancing test applicable to federal employee speech applied to weigh the government’s interest as a contractor rather than an employer. Thus, the first step in the inquiry was whether the plaintiffs spoke as citizens on a matter of public concern. If so, the question becomes whether the relevant government entity had an adequate justification for treating the contractor differently from any other member of the general public.
Under section 4 of the EO, a federal contractor must agree not to “use any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating.” The court noted that this restriction on a plaintiff’s training of its own employees applied regardless of whether the federal contract had anything to do with diversity training or “divisive concepts” and is unrelated to the use of the federal funds. Further, issues of racism, sexism, and discrimination are matters of public concern.
Balancing the interests of the government against the plaintiffs’ free speech interests, the court found in favor of the plaintiffs. The federal government has a legitimate interest in controlling the types of training provided to the federal workforce, but the EO goes further and attempts to regulate the plaintiffs’ use of their own funds to train their own employees. Thus, the court held, the government’s interest was “outweighed by the effect of the impermissible reach of the Executive Order on Plaintiffs’ freedom to deliver the diversity training and advocacy that they deem necessary to train their own employees and service providers.”
Grantees. The plaintiffs conceded that the government has broad authority to regulate the use of federal grant funds; however they argued the it cannot condition grant funding on a speech restriction that is outside the confines of the grant program. The court agreed. Section 5 of the EO, which governs grants, directs agency heads to review all grant programs to determine which grants may be conditioned on the recipient’s certification that federal funds will not be used to promote concepts that the EO characterizes as “divisive.” The court held that this constitutes a content-based restriction on protected speech.
In addition, Section 5 goes beyond barring workplace training promoting the divisive concepts to banning any “promotion” of divisive concepts using federal funds. This ban on “promotion” of divisive concepts also interfered with free speech rights. Thus, the plaintiffs showed a likelihood of success on the merits.
Due process. Next, the plaintiffs argued that Sections 4 and 5 of the EO are so vague that it is impossible to determine what conduct is prohibited. The FAQs from the DOL highlight the lack of clarity, according to the plaintiffs. For example, the FAQs state that training is prohibited if it “teaches or implies” that an individual is biased by virtue of his race or sex, but training is not prohibited if it is “designed to inform” about stereotypes that people may have regarding people who are different. The court agreed noting that “[t]he line between teaching or implying (prohibited) and informing (not prohibited) ‘is so murky, enforcement of the ordinance poses a danger of arbitrary and discriminatory application.’”
Prior restraint? The government argued that any vagueness in the EO is acceptable because the EO charges OPM with determining whether a training violates the EO. The court rejected this argument. Section 7 of the EO provides that OPM must approve training programs for agency employees, but it says nothing about OPM approving a contractor’s internal training programs. Even if it did, the court noted, that would be a prior restraint that carries “a heavy presumption against constitutional validity.”
Irreparable harm. The court was persuaded by evidence that the restrictions have already had a chilling effect on the plaintiffs’ free speech rights. Several plaintiffs put forth evidence that they have lost income and opportunities after other entities concluded that working with plaintiffs would adversely affect their access to federal funds. Frustrating the plaintiffs’ ability to carry out their core mission is irreparable harm, the court explained.
Balance of equities. The government argued, and the plaintiffs and the court acknowledged, that it has the right to choose how it speaks to its own workforce and has an obligation to ensure proper expenditure of federal dollars. However, the court explained that it narrowed the scope of the preliminary injunction to exclude Section 3, Requirements for the United States Uniformed Services, and Section 6, Requirements for Agencies, and only focused on the provisions for contractors and grantees.
Further, as the court previously noted, the EO clearly bans plaintiffs from training their own employees on any “divisive concepts” and prohibits grantees from using federal funds to “promote” the “divisive concepts,” even in areas removed from workplace training, such as basic research. The court concluded that the plaintiffs’ interest in a narrowed injunction outweigh the government’s interests.
Injunctive relief. Finding the plaintiffs were entitled to a nationwide injunction, the court agreed that an injunction limited to the plaintiffs would not provide full relief. As the plaintiffs had demonstrated, other organizations that provide employment and funding to the plaintiffs would remain subject to the EO and would not work with the plaintiffs out of fear of losing their own federal contracts and grants. Furthermore, the plaintiffs are located throughout the country and serve widely dispersed populations. Thus, the nationwide injunction was granted.
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