On August 18, 2011, President Obama issued an Executive Order entitled “Establishing a Coordinated Government-wide Initiative to Promote Diversity and Inclusion in the Federal Workforce”. The Order directed agencies to emphasize diversity and inclusion throughout the federal workforce.
The implementation of the memo may or may not have been what President Obama intended but has taken on a life of its own in any event.
Memo and EO to Cease Divisive Propaganda Effort
Some nine years after the Obama Executive Order was issued, the Director of the Office of Management and Budget issued a memo to federal agencies on training for the federal workforce on diversity and inclusion. The memo was issued after President Trump sent out a tweet that “critical race theory” is a “sickness that cannot be allowed to continue.”
On September 22nd, the President signed Executive Order 13950, entitled “Executive Order on Combating Race and Sex Stereotyping.” The purpose of the Executive Order was “to promote economy and efficiency in Federal contracting, to promote unity in the Federal workforce, and to combat offensive and anti-American race and sex stereotyping….”
Court Decision Overturns Order
As usually happens, litigation followed. And, a trend that has been on-going for several years, a district court judge anywhere in the country can see fit to issue a nationwide injunction. That has now happened with regard to this Executive Order from President Trump.
The US District Court for the Northern District of California issued a preliminary injunction on December 22, 2020, prohibiting the Department of Labor from implementing or enforcing portions of President Trump’s Executive Order 13950 “in any manner against any recipient of federal funding by way of contract [or] subcontract….” The preliminary injunction took effect immediately. The District Court Judge concluded, “Plaintiffs have demonstrated a likelihood of success in proving violations of their constitutional rights.”
As a result, the Department of Labor’s Office of Federal Contract Compliance Programs has ceased “any alleged non-compliance with Executive Order 13950….”
The decision specifically references federal government contracts. Presumably, this will not only restrict issuing or enforcing contracts issued by the federal government but will also be used as a way to continue the training that was prohibited within federal agencies.
Many in the federal community anticipate that President-elect Biden will rescind the Executive Order after taking office later this month.