Trump Tried To Ban Teaching About Racism. Judge Says Eat Sh*t.
With all of the absolutely batshit insane nonsense going on right now, it can be easy to lose sight of all of the other messes Trump created. Between stupid coup attempts, a Christmas Day suicide bomber in downtown Nashville, and the president's Twitter account, there's just a lot of shit to keep track of. So you may have almost missed this nice little present we got last week.
Just in time for Christmas, Northern District of California Judge Beth Labson Freeman gave us a shiny, beautiful gift — a nationwide injunction stopping Donald Trump's diversity training ban.
In The Diversity Center of Santa Cruz v. Trump, Judge Labson Freeman found that the organizations challenging Trump's bigoted fuckery had shown that they were likely to win their First and Fifth Amendment claims and were entitled to a preliminary injunction blocking the insane, racist policy.
Suck it, Nazis.
Here's the deal
Back in September, Trump signed Executive Order 13950, which prohibited the military, federal agencies, and federal contractors and grantees from conducting what he called "divisive, un-American propaganda training sessions." And no, he wasn't talking about his legal team's press conferences. He was talking about the concept that racism in America exists.
The scope of the order was discussed at the hearing.
"They say intersectionality can't be taught, but that is what our clients do," Douglas Hallward-Driemeier, attorney for the plaintiffs, told Labson Freeman during a recent hearing. "They teach the intersections of race, gender and sexual orientation in order to show the systemic biases against the marginalized communities they serve."
In the wake of the order, Trump's Office of Management and Budget (OMB) Director Russell Vought issued a memo directing agencies to look for terms like "critical race theory," "white privilege," "intersectionality," "systemic racism," "positionality," "racial humility," and "unconscious bias" to see if trainings "teach, advocate, or promote the divisive concepts specified" in the order.
As expected, the order has already ended most diversity training in some federal agencies. And private businesses and universities who contract with or receive grants from the federal government canceled or suspended various diversity training programs.
No. Just no.
For now, the order can't be enforced against any federal contractors or grantees — nationwide. Yay!
The plaintiffs include a number of different organizations that work with and advocate for LGBTQ+ people and people who are living with or vulnerable to HIV, and an organization that trains people on the Prison Rape Elimination Act. All of the organizations conduct trainings — for their employees and for clients — that may or may not go afoul of Trump's executive order. They want to continue to train people on concepts like discrimination and implicit bias, but fear they will lose funding and their federal contracts.
The plaintiffs alleged that the order illegally restricts their free speech, in violation of the First Amendment. Because OBVIOUSLY IT DOES, THAT WAS THE ENTIRE POINT. Judge Labson Freeman agreed, finding the organizations are likely to win their case and temporarily stopping the government from enforcing the EO.
It's insane that this is even up for debate in 2020, but here we are. Thankfully, the judge found that conditioning federal grants and contracts on complying with the order "clearly would constitute a content-based restriction on protected speech." Content-based and viewpoint-based restrictions on speech are almost always unconstitutional; the government doesn't get to dictate what people and organizations say.
"Requiring federal grantees to certify that they will not use grant funds to promote concepts the Government considers 'divisive,' even where the grant program is wholly unrelated to such concepts, is a violation of the grantee's free speech rights.
But that's not all! Judge Freeman also found that the plaintiffs were likely to win their due process claims. When the government makes something illegal, it has to be clear about what, exactly it's making illegal — especially when the restriction in question limits free speech or expression. If a law is too vague or ambiguous, people can't reasonably determine what conduct or speech is actually illegal. Judge Freeman found that the order was so unclear that it did not give fair notice of what, exactly, is prohibited.
The organizations challenging the order conduct training on unconscious bias and implicit bias that are critical to their work — and they really can't tell if their trainings run afoul of the EO or not. And the government's attempts to clarify Trump's ramblings have only made things even more confusing. For example, the Labor Department's FAQ section about EO 13950 says that implicit bias training is prohibited if it "teaches or implies" that a person, by virtue of his or her race, sex, and/or national origin, is racist, sexist, oppressive, or biased, whether consciously or unconsciously — but such training is allowed if it is to "inform or foster discussion, about pre-conceptions, opinions, or stereotypes" that people have. Just figure out what counts as "teaching or implying" and what counts as "informing"! nbd!
Good! But ...
Unfortunately, the executive order remains in place for federal agencies.
Judge Labson Freeman held that the federal contractors and grantees challenging the order didn't have standing to get an injunction on behalf of federal agencies. Noting that "the Government has a legitimate interest in controlling the scope of diversity training in the federal workforce and can limit the expenditure of federal funds[,]" the court limited its order to federal contractors and grantees. The NAACP, National Urban League, and National Fair Housing Alliance have also sued over the order in federal court in DC, but that case will likely be similarly limited.
And things at federal agencies have already gotten even worse since Trump signed this bullshit order. Last week, DOJ whistleblowers sent a letter to the House, Senate, Office of Special Counsel, and Office of the Inspector General, saying the Trump diversity directives "cannot and must not stand."
The whistleblowers say that Trump's anti-diversity directives "are already having their intended effect: they compel the prohibition or significant chilling of diversity-related speech across the entire federal workforce." This is abundantly clear at the Justice Department, which has already had to cancel events about the "gender leadership gap" at the Department and the issue of implicit bias in law enforcement.
With a little luck, this particular chapter in our national nightmare is almost over — Joe Biden is comin' to town and all of this litigation will hopefully soon be moot.
The incoming Biden administration is widely expected to rescind this horseshit. Biden and Harris campaigned on racial equity and coming to terms with systemic and institutional racism. It's very hard to imagine the incoming Democratic administration — with a Black woman who champions diversity as veep — will allow this to stand.
Just another reason January 20 can't get here soon enough.
Here's the order:
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