As reported yesterday by my Red State colleague, Nick Arama, on Tuesday, President Trump unveiled an Executive Order directed at the advocacy by left-wing interest groups of dogmatic pseudo-political science and revisionist history that generically falls into a classification of studies referred to as “critical race theory.”
The Executive Order defines what it refers to as “Divisive Concepts” the subject matter under review as follows:
(a) “Divisive concepts” means 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.
Working from that definition, the Executive Order goes on to do some breathtaking things:
- Anyone contracting with the federal government must certify that it does not use any workplace training materials that advocate such “divisive concepts.” Non-compliance can result in the cancellation of the federal contract.
- The heads of all government agencies that issue grant funds must contact all grant fund recipients and obtain a certification that the recipient will not use any federal funds to advocate the teaching of “divisive concepts.”
- The head of each agency of the Executive Branch shall take steps to ensure that the agency employees while on duty status, or any contracts hired by the agency to provide training, workshops, forums, or similar programming to agency employees do not teach or advocate the “divisive concepts.”
- If any contractor is found to have violated the prohibition by teaching or advocating the “divisive concepts,” the agency that contracted for such training shall evaluate whether to pursue debarment of that contractor.
- The Attorney General should determine the extent to which workplace training that teaches the “divisive concepts” may contribute to a “hostile work environment” and give rise to potential liability under Title VII of the Civil Rights Act of 1964 prohibiting workplace discrimination.
The timing of the announcement was pretty cagey. Two weeks ago, the White House put out a directive to all federal agencies to stop any training that was taking place on subjects generally within the scope of “critical race theory.” But the formal EO issued today clearly goes much farther, and the Democrat/media/race huckster outcry is certainly going to be muffled by the issue of a nominee to replace Justice Ginsburg on the Supreme Court.
This will certainly trigger many legal challenges right away, but it might be difficult to get preliminary injunctive relief as to either contractors or grant recipients until after some form of adverse action is taken by a government agency. As it stands, there is no irreparable injury to anyone until there is a violation of the EO established, and a contract or grant is canceled as a result. And even then, because contracts and grants involve only monetary losses, there is an argument that can be made that any injury to the recipient is compensable in monetary damages and injunctive relief is not warranted.
There is a provision later in the EO that exempts from the prohibition the teaching of “divisive concepts” as part of a larger course of instruction by an academic institution. So the “teaching” of “critical race theory” at universities will probably not be impacted. But, any University President will be playing with fire to the extent the University receives substantial federal grant funding and has an active “critical race theory” advocacy program as part of either its academic program or employee workplace education program.
The risk to K-12 school districts and local governments is significant because federal grant monies from the Department of Education and other federal agencies go out to them as well.
It’s possible — and maybe even likely that the intention here is more “prophylactic” than “remedial”. The Administration will certainly put a stop to the teaching of “Divisive Concepts” to the federal workforce and military. Whether the Administration really intends to take the EO a step further with aggressive enforcement against private parties such as contractors and grant recipients remains to be seen. But any voluntary compliance with the restrictions is movement in the right direction to staunch the flow of this pernicious form of racial “victimology.”
It will also likely put a dent in the burgeoning cottage industry of race hucksters who promote and live off nonsense like the NYT “1619 Project.” Corporate America has already been co-opted to fund much of this advocacy — at least to the extent that George Soros doesn’t fund it — but those same corporations that also do business with the government and have instruction for their employees on “divisive concepts” are going to need to pause to consider how they avoid running afoul of the EO.
I think I’m seeing some business opportunities here.