Federal Rules Target Speech in the Higher Education Sector

October 8, 2020 Advisory

The Trump Administration recently published rules restricting certain speech around diversity and inclusion, targeted in part at federal contractors and those receiving federal grants. Colleges and universities have long been on the forefront of pursuing racial and social justice.  Going forward, however, institutions will need to recognize how the new rules impact those efforts, including understanding what can and cannot be said when delivering workplace training. The new rules include (1) President Trump’s Executive Order 13950 titled “Combating Race and Sex Stereotyping,” and (2) the Department of Education’s new regulations and enforcement efforts to implement Executive Order 13864, which directly requires colleges and universities to adhere to free speech principles as they relate to the free practice of religion as a condition of receiving Department of Education grants.  

Executive Order 13950 Prohibits Divisive Concepts in Workplace Training 

On Sept. 22, 2020, President Trump issued Executive Order 13950 (EO 13950), which restricts federal contractors and federal grant recipients from promoting concepts defined in EO 13950 to be “divisive concepts” or “race or sex stereotyping” or “scapegoating.” 

What colleges and universities are covered? 

EO 13950 could impact institutions of higher education in a number of different ways:

  • If an institution enters a contract with the federal government or enters an agreement as a federal subcontractor, that institution will be required to agree not to use any workplace training that includes concepts defined by the order as “divisive.” 
  • If a college or university receives federal grant funds, the institution would be prohibited from using such funds to promote “divisive concepts” or “race-based or sex-based stereotyping” or “scapegoating” as those terms are defined by EO 13950.

Under EO 13950, institutions that are federal contractors have until Nov. 21, 2020, to revise their contracts to include language provided in the order which acknowledges their agreement to restrict the use of any workplace training that uses “divisive concepts” or “race-based or sex-based stereotyping” or “scapegoating.” Additionally, the language required to be added to the contracts acknowledges that the contractor will, as applicable, send their labor union representatives notices advising of their commitment to EO 13950.

How are key terms defined?

Under EO 13950, the term “stereotyping” is defined to mean the act of “ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex.”  The term “scapegoating,” as used in EO 13950, “means assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex.”

Meanwhile, the term “divisive concepts” is defined by EO 13950 to include the following notions:

  • one race or sex is inherently superior to another race or sex;
  • the United States is fundamentally racist or sexist;
  • 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; or
  • meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.

EO 13950 further notes that “[n]othing in this order shall be construed to prohibit discussing, as part of a larger course of academic instruction, the divisive concepts…in an objective manner and without endorsement.” Several topics that commonly appear in diversity and inclusion training materials are notably absent from the definition of “divisive concepts” in the Order, making it unclear whether, during enforcement, training on these topics will be permissible or will be chilled. These topics include common dialogue around:

  • the importance of cultivating self-awareness through self-reflection;
  • opportunities to provide examples of positive actions, e.g., allyship, that can make a workplace more inclusive;
  • opportunities to engage in recruiting efforts that are designed to increase the likelihood of producing more diverse applicant pools;
  • opportunities to create safe spaces and environments where employees of varied backgrounds can share and communicate their concerns; and
  • opportunities to provide examples of how to communicate with colleagues in culturally appropriate and respectful ways.

Furthermore, in guidance published on Oct. 7, 2020, the Department of Labor clarified that “unconscious bias” or “implicit bias” training “is not prohibited if it is designed to inform workers, or foster discussion, about pre-conceptions, opinions, or stereotypes that people—regardless of their race or sex—may have regarding people who are different, which could influence a worker’s conduct or speech and be perceived by others as offensive.”  

What next steps should colleges and universities consider taking? 

Although legal challenges to EO 13950 are expected, colleges and universities that may be covered by the new rules should consider taking the following steps to understand their potential exposure:

  • confirm the applicability of EO 13950 to the institution as a recipient of a federal grant or as a federal contractor;
  • review training materials to state any necessary disclaimers designed to avoid any inference that the institution is promoting “divisive concepts,” “stereotyping” or “scapegoating” as defined by EO 13950 and revise training materials as necessary;
  • review diversity and inclusion training materials to determine whether revisions should be made to language addressing the topics of implicit or unconscious bias—keeping in mind that the term “divisive concepts” is defined by EO 13950 to cover the notion that an individual may be “inherently racist, sexist, or oppressive, whether consciously or unconsciously” (emphasis added);
  • prepare to respond to OFCCP requests for information regarding diversity training and workshops. EO 13950 requires and authorizes such requests to be issued to federal contractors and those institutions receiving federal grants beginning Oct. 22, 2020. The requests will seek “copies of any training, workshop, or similar programming having to do with diversity and inclusion as well as information about the duration, frequency, and expense of such activities”; and
  • review subcontracting forms for federal projects and prepare to add new agreement terms required by EO 13950 by Nov.21, 2020.

What are the consequences of noncompliance?

Federal contractors failing to abide by these requirements may be subject to enforcement action by OFCCP, which has already established a hotline to receive and investigate complaints regarding the use of prohibited trainings. Violations of EO 13950 could result in contract cancellation, termination or suspension, in whole or part. Also, sanctions can include debarment from future federal contracts.

Department of Education Grants Conditioned on Adherence to Free Speech Principles 

The U.S. Department of Education has also recently published final rules, which take effect on Nov. 23, 2020, to implement Executive Order 13864 issued in 2019 by President Trump concerning respect for free speech principles in the higher education sector. These regulations address several topics, including the treatment of religious student groups. However, under the auspices of requiring adherence to First Amendment principles, the new rules place speech-related conditions on the receipt of federal funds by both public and private colleges and universities.

For public colleges and universities, as a material condition to the grant:

  • institutions must comply with the First Amendment; and
  • institutions must not deny religious student organizations any of the rights, benefits or privileges that other student groups enjoy.

For private colleges and universities, as a material condition of a grant from the Department of Education, institutions must adhere to their own stated policies regarding freedom of speech, including academic freedom.

Institutions controlled by a religious organization are eligible to claim an exemption to the application of Title IX and its implementing regulations to the extent inconsistent with the institutions’ religious tenets or practices.

The final rule also amends the definition of a “school or department of divinity” to mean an institution or a department of an institution whose program is solely to prepare students to become ministers of religion or to enter into some other religious vocation. This distinction was drawn to address concerns that had been raised about the prohibition to use development grant funds for activities or services that relate to “sectarian instruction” and “religious worship.” With the distinction, institutions whose program is solely to prepare students to become ministers of religion or to enter into some other religious vocation are not prohibited from using the grants for these purposes.

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