Federal Court Enjoins Executive Order Restricting Diversity Training
The dialogue surrounding racism in America found a broader, more engaged and eager-to-listen audience in 2020—for the most part. One notable exception was at the White House where President Trump issued Executive Order 13950 (EO) in September, prohibiting federal agencies, contractors and grant recipients from engaging in any "divisive" D&I training. "Divisive" can include white privilege, critical race theory, intersectionality, systemic racism and unconscious bias. Executive guidance deems training on such topics "un-American."
Two days before Christmas, that controversial decree suffered its first legal setback, in Santa Cruz Lesbian and Gay Cmty. Ctr., et al. v. Trump, No. 5:20-cv-07741-BLF (N.D. Cal. Dec. 23, 2020).
In Santa Cruz, the Court issued a preliminary injunction barring enforcement of the EO against federal contractors and grant recipients, nationwide. The Court concluded that Plaintiffs were likely to prove that the EO "impermissibly chills the exercise of constitutionally protected speech, based on content and viewpoint," in violation of the First Amendment.
As the Court explained,
"The government's interest is outweighed by the . . . impermissible reach of the Executive Order on Plaintiffs' freedom to deliver the diversity training they deem necessary to train their own employees and the service providers in the communities in which they work, using funds unrelated to the federal contract."
The Court also saw merit in the Due Process claims, characterizing the EO as "so murky [that] enforcement poses a danger of arbitrary and discriminatory application." Id. at *25 (quoting Hunt v. City of Los Angeles, 638 F.3d 702, 712 (9th Cir. 2011) (internal citations omitted).
Nonprofit and anti-discrimination organizations across the Nation immediately lauded the Santa Cruz decision, as did institutions of higher education that rely on federal grant money to fund critical research.
As Vice President and General Counsel of Stanford University Debra Zumwalt put it, "we are pleased that this decision recognizes the challenges the executive order poses for the efforts of universities to build equity and inclusion through meaningful training programs." The NAACP Legal Defense and Educational Fund said, "this decision is the first step toward ending [the EO's] destructive and anti-constitutional abuse of presidential authority."
Notably, while the injunction takes immediate effect, it is not permanent at this point; moreover, it applies only to federal contractors and grant recipients. That means federal agencies and employees remain subject to the EO. The good news is we can expect President-elect Biden ultimately to rescind the EO in its entirety, restoring free speech for millions in the pursuit of a safer and more inclusive and just America for all.
This Legal Alert does not establish an attorney-client relationship and is not intended to be a complete representation of applicable federal, state and local law. Nothing herein should be construed as legal advice. 2020 All Rights Reserved.
