Trump Executive Order Barring Race and Sex “Stereotyping and Scapegoating” Poses Special Challenges for Universities and Colleges

On September 22, President Trump issued an “Executive Order on Combating Race and Sex Stereotyping” barring federal agencies, contractors, and the military from conducting training or other programming that “inculcates in its employees any form of race or sex stereotyping,” or “race or sex scapegoating.” This EO created enormous uncertainty—and threatened penalties and loss of funding—for agency personnel and contractors, as discussed in our September 23 alert. But the EO also caused additional concern for, and may pose a serious funding threat to, institutions of higher education. That is because, in addition to being federal contractors, many universities and colleges receive federal grants, and federal grantees are separately addressed by the EO. As federal grantees, educational institutions must now assess whether planned programming—including but not limited to diversity, anti-harassment and bias training—may be viewed by the federal government as in violation of the EO, and thus grounds to withdraw all federal funding.

The EO begins with sweeping language, invoking Lincoln before characterizing “materials teaching that men and members of certain races, as well as our most venerable institutions, are inherently sexist and racist” as representing a “malign ideology” that is “infecting” American society. After expounding on that theme, the EO asserts that “it shall be the policy of the United States not to promote race or sex stereotyping or scapegoating in the Federal workforce or in the Uniformed Services, and not to allow grant funds to be used for these purposes.” To achieve its goal in regard to federal grantees, the EO directs agency heads to “review their respective grant programs and identify programs for which the agency may, as a condition of receiving such a grant, require the recipient to certify that it will not use Federal funds to promote” certain “concepts.” Those eight “concepts” are:

• one race or sex is inherently superior to another race or sex;
• an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
• an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;
• members of one race or sex cannot and should not attempt to treat others without respect to race or sex;
• an individual’s moral character is necessarily determined by his or her race or sex;
• 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;
• any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; and
• meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race. 

While the EO purports to carve out “academic instruction” as a forum for discussing these concepts if carried out in an “objective manner and without endorsement,” it raises serious concerns regarding faculty members’ free speech and academic freedom rights.  All the more so, as campuses grapple with responding to a nationwide reckoning of racial injustice issues. Further, interpreting these eight “concepts” will be challenging, as much of the determination of what constitutes race or sex stereotyping will be subjective. Institutions of higher education must begin the difficult task of assessing whether they are likely to be targeted pursuant to grants, and if so, whether their federally-funded programming might be viewed as reflecting the forbidden “concepts.” Institutions then will have to assess how—and indeed whether—to alter their programming to obviate the risk of losing funding, on which many depend. While the EO appears to speak to future grants rather than existing, directing agencies to require recipients to certify “as a condition of receiving funds” that they “will not” use those funds to promote the forbidden “concepts,” it is not clear how that mandate will be implemented in practice; i.e., if it will be indeed limited to entirely new grants and future funding.

In the short term, institutions may simply choose to wait to see how agencies move to implement the EO—and for the outcome of the election. If Biden wins, the EO may be rescinded before it can be meaningfully implemented. While the EO directs agency heads to identify grant programs potentially subject to the EO by November 21, it will obviously take additional time for the government to then reach out to grantees to demand compliance. But if Trump wins reelection, universities and colleges will be faced with difficult decisions—unless the EO or agency actions taken thereunder are successfully challenged in the courts.