Is the Federal Ban on Diversity Training Constitutional?

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Janelle Thompson, Associate Member, University of Cincinnati Law Review

I. Introduction

When browsing companies’ websites, it is common to see phrases such as “our commitment to diversity” or “diversity and inclusion” highlighted as a main focus of the page. While some companies take their commitment to upholding diversity and inclusion more seriously than others, many acknowledge that diversity is an essential part to a successful and healthy workforce.[1] An entire industry has emerged to provide training on complex topics such as diversity, cultural competency, and microaggressions. Diversity training can come with substantial claims, including addressing the “elephant in the room: poor cross-cultural communication, resentment, and competition for advancement opportunities.”[2]

Other approaches to diversity curriculum address race, gender, and sexuality using an intersectional approach. Critical Race Theory (“CRT”) was initially created to examine the relationship between race and the law, but has since evolved to consider other marginalized identities and perspectives.[3] Started in the 1980s by pioneers in racial justice, CRT tries to “lifts the racial gaze of America” while grappling with the laws and systems that grew out of a country founded in white supremacy.[4]

Not all professionals are fans of diversity and inclusion efforts.  Diversity training, and specifically conversations about race and gender, have become rife with political controversy. The conflict has even reached the White House, resulting in the Executive Order Combating Race and Sex Stereotyping.[5]

This blog focuses on the recent Executive Order (“E.O. 13950”) that bans certain types of diversity training and the lawsuit filed in response. Part II of this blog provides background on the theories underlying E.O. 13950. Part III details the ongoing National Urban League lawsuit alleging that the E.O. 13950 violates First Amendment principles. Part IV concludes with a discussion of the potential implications of the E.O.

II. Executive Order 13950

The Trump Administration has taken a strong stance against diversity training that paints America as an inherently sexist or racist country.[6] E.O. 13950 declares that concepts such as CRT are rooted in misrepresentations of America’s history and its role in the world.[7] The executive order further criticizes CRT by railing against any ideology that some people, based on their race or sex, are oppressors and that racial and sexual identities are more important than “our common status as human beings and Americans”. [8]

The executive order does more than denounce a subset of diversity training. It applies to both the federal government and federal contractors, banning training that uses “divisive language or ideas.”[9] In particular, training curriculum is reviewed for words such as critical race theory, white privilege, intersectionality, systemic racism, positionality, racial humility, and unconscious bias.[10] Federal employees who violate the executive order could face disciplinary measures, and federal contractors are required to represent that they will not use the prohibited materials to train their employees.[11] Federal contractors who are found in violation of the E.O. face severe consequences, including loss of federal funding or government contracts.[12]

III. National Urban League v. Trump: Is the Ban a Constitutional Violation?

The recent executive order has sparked concern from federal contractors and grant recipients nervous to lose their government funding and connections.[13] The apprehensiveness around the executive order has culminated into several lawsuits, including a proposed civil rights class action filed on behalf of the National Urban League and the National Fair Housing Alliance.[14] Describing the executive order as “an exercise of authoritarian thought and speech-control”, the plaintiffs filed the suit against Donald Trump in his official presidential capacity and Eugene Scalia in his official capacity as United States Secretary of Labor. The plaintiffs brought the class action for injunctive and declaratory relief, asking for a declaration that E.O. 13950 is unlawful and invalid and a permanent injunction enjoining government enforcement of the executive order.[15]

The plaintiffs claimed that the executive order  prohibits them from discussing and promoting concepts like systemic race and sex discrimination and implicit bias in violation of their First Amendment protections of free speech, equal protection, and due process rights.[16] The plaintiffs relied on the principle that all Americans are “empowered to engage freely in an exchange of ideas, truth-telling, and difficult conversations about history”, and asserted the protection extended to entities that engage with the federal government in any capacity.[17]

The plaintiffs assert several constitutional flaws in E.O. 13950 that they claim will erode core democratic principles. First, the plaintiffs allege that this censorship on free speech will be to the detriment of marginalized groups because efforts to counteract systematic discrimination and workplace bias will be prohibited.[18] Second, the plaintiffs point to a broad chilling effect from uncertainty regarding what speech is prohibited. Due to the impreciseness of the terms described in the executive order , employers and employees may be overly cautious in diversity training for fear of being reported, having funding removed, or being disciplined.[19] Third, the E.O. introduces inconsistency because whether the executive order  is violated depends on the subjective viewpoint of the person who may be offended.[20]

IV. Conclusion

The plaintiff’s claim in National Urban League v. Trump that the E.O. 13950 impedes on free speech in violation of the First Amendment is the most convincing argument.  The President’s decision to ban training that contains “divisive” rhetoric is based on his office’s subjective meaning of the term. Allowing the executive order to stand sends a dangerous message that an office can ban speech that it finds unappealing and “Unamerican”. Members of an executive office should not have the power to ban speech simply because it offends them. Any law that has the effect of chilling speech, especially on such an important and public topic like diversity, should be reviewed with a critical lens.

Differing viewpoints on race, diversity, and bias are unlikely to change anytime soon. Diversity training is likely to continue even if the language used must be substituted with other phrases. Whether the E.O. banning certain ideologies in diversity training is constitutional remains to be decided. If courts hold that the E.O. is unconstitutional, then an important precedent could be set against using Executive Orders to influence speech. Additionally, the incoming Presidential Administration could reverse the E.O. or refuse to enforce it. Either way, these conversations are integral parts of American social, political, and corporate culture, and every opinion deserves to be expressed. 

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[1] COMPLIANCE TRAINING GROUP, Diversity & Inclusion in the Workplace Training, , https://compliancetraininggroup.com/courses/workplace-diversity/ (last visited Nov. 20,2020).

[2] Id.

[3]Cady Lang, President Trump Has Attacked Critical Race Theory. Here’s What to Know About the Intellectual Movement, (Sept. 29, 2020), https://time.com/5891138/critical-race-theory-explained/.

[4] Id.

[5] Exec. Order No. 13,950, 85 Fed. Reg. 60,683 (Sept. 20, 2020).

[6] Id. at 1.

[7] Id.

[8] Id.

[9] Id. at 2.

[10] [OFF.] OF MGMT. & BUDGET, EXEC. [OFF.] OF THE PRESIDENT, Memorandum for the Heads of Executive Departments and Agencies (Sept. 28, 2020).

[11] Id. at 2.

[12] Id.

[13]Alexandra Olson, Trump’s diversity training order faces lawsuit,https://apnews.com/article/trump-diversity-training-lawsuit-naacp-4c426e9f14fcf0618eac5d457e0d2066 (Nov. 12, 2020).

[14]Complaint at 1, Nat’l Urban League v. Trump, No. 1:20-cv-03121 (D.C. Cir. Oct. 29, 2020).

[15] Id. at 59

[16] Id. at 2.

[17] Id. at 1.

[18] Id. at 37.

[19] Id. at 18.

[20] Id. at 56.