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Trump Workplace Diversity Training Order Halted Nationwide (3)

Dec. 23, 2020, 5:18 PM; Updated: Dec. 23, 2020, 10:10 PM

A federal judge blocked President Donald Trump’s ban on “divisive” workplace diversity training conducted by federal contractors, nonprofits, and other recipients of federal funding, while leaving in place the prohibition on U.S. agencies and the military educating personnel on issues like “White privilege.”

The executive order’s restrictions on contractors and grants likely violate the U.S. Constitution’s free speech and due process protections, said U.S. District Judge Beth Labson Freeman in San Jose. She issued a preliminary injunction halting enforcement of those parts of the diversity training order nationwide.

Although the Biden administration is likely to rescind the executive order, it has led to hundreds of events, training programs, research projects, and other diversity-related activities being delayed or canceled. Trump signed the order in September, after a summer of protests across the country over police brutality and structural racism in the U.S.

Santa Cruz Lesbian and Gay Community Center, Los Angeles LGBT Center, AIDS Foundation of Chicago, and other groups filed a lawsuit in November against the order in the U.S. District Court for the Northern District of California. They originally challenged the entire order, but later narrowed their focus to just the provisions affecting federal contractors and grants.

“Judge Freeman saw this ban for what it is: An effort to quash the truth and sweep under the rug an honest and long overdue reckoning with structural racism and sexism in our society,” Avatara Smith-Carrington, a Lambda Legal attorney representing the groups, said in a press release.

The U.S. Justice Department, which is defending the executive order, declined to comment, spokeswoman Mollie Timmons said.

The executive order is also being challenged by a pair of civil rights groups represented by the NAACP Legal Defense and Education Fund.

‘Breaking Down Barriers’

The groups argued the order requires them to censor or stop trainings fundamental to their mission of “breaking down barriers” faced by the LGBT community and people living with the human immunodeficiency virus—many of whom are woman and people of color—when trying to access health care.

A failure to comply with the order could result in the groups losing federal grants or contracts, they said. Trump’s order directs executive agencies to identify grant programs where grantees, as a condition of receiving federal money, could be required to certify that they won’t use federal funds to promote “divisive” concepts.

The order also is “so vague” that it doesn’t give notice of what speech is prohibited, they said.

A special test applies when federal contractors assert free speech claims against the government, Freeman said in her Tuesday decision. The groups satisfied that standard, as the order’s prohibition on “workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating” restricts the groups’ training of their own employees regardless of whether a federal contract has anything to do with diversity training or “divisive concepts,” she said.

The groups’ interests in delivering diversity training—which addresses matters of public concern, such as racism and discrimination—outweighs the government’s interests in training its employees, Freeman said. The judge also blasted the Trump administration’s argument that groups want to perform training that will further stereotyping and scapegoating.

“The Court agrees with Plaintiffs that the Government’s argument is a gross mischaracterization of the speech Plaintiffs want to express and an insult to their work of addressing discrimination and injustice towards historically underserved communities,” Freeman said. “That this Government dislikes this speech is irrelevant to the analysis but permeates their briefing.”

Additionally, the executive order likely unlawfully conditions federal grants on a grantee’s promise to abide by a content-based restriction on protected speech, she said.

The terms used in the order don’t adequately notify the groups of what it prohibits, Freeman added.

Lambda Legal Defense and Education Fund Inc. and Ropes & Gray LLP represent the groups. The Justice Department represents the defendants.

The case is Santa Cruz Lesbian & Gay Cmty. Ctr. v. Trump, N.D. Cal., No. 20-cv-7741, 12/22/20.

(Updated to add the Justice Department declining to comment.)

To contact the reporters on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com; Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Peggy Aulino at maulino@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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