NAACP Lays Down First Challenge to Executive Order 13950 Prohibiting Inclusion of “Divisive” Concepts in Workplace Training Programs

The first legal challenge to Executive Order 13950 (the “Order”) has been made. On October 29, 2020, the NAACP, representing the National Urban League, and the National Fair Housing Alliance, filed a civil rights class action lawsuit in the United States District Court for the District of Columbia (Case No. 1:20-cv-03121), requesting injunctive and declaratory relief against the President of the United States, the U.S. Secretary of Labor and the U.S. Department of Labor. Specifically, the lawsuit seeks for the Court to strike down the Order, declaring it unlawful and invalid, arguing it violates inter alia the First Amendment protection of free speech and the Fifth Amendment equal protection clause.

The lawsuit is in response to an Order, entitled “Combating Race and Sex Stereotyping,” issued on September 22, 2020, prohibiting federal government contractors (“Contractors”), as well as federal agencies and the military, from using a workplace training program that “inculcates in [their] employees any form of race or sex stereotyping or any form of race or sex scapegoating.” As we indicated in our Act Now Advisory, Executive Order Prohibits Inclusion of “Divisive” Concepts in Workplace Training, the Order prohibits those Contractors entering into new contracts, beginning November 21, 2020, from incorporating certain “divisive” concepts, set forth in the Order, such as systemic racism, white privilege, male privilege, and the idea that the United States is a racist country, into diversity and awareness training programs. The Order also directs all federal agencies to review their respective grant programs and identify programs which may require recipients to certify that federal funds will not be used to promote the concepts prohibited by the Order.

The NAACP stated, in support of the lawsuit,

Despite the urgent need to address and remedy systemic discrimination and counter the harms stemming from implicit biases, EO 13950 unconstitutionally forces Plaintiffs to choose between censoring speech on these important issues or forfeiting any opportunity to enter into a federal contract for the provision of goods or services or to receive federal funds as a grant recipient. The infringement of Plaintiffs’ private speech on these matters of public concern and public welfare is deeply troubling… This censorship of Plaintiffs’ speech by the federal government is anathema to a free democracy.

The NAACP argues that (i) Plaintiffs have been and will be irreparably harmed by the President’s ultra vires Order issued in violation of the First Amendment and have no adequate remedy at law; (ii) the Order is unconstitutionally vague in violation of the Fifth Amendment’s Due Process Clause; and (iii) the stated justifications and policy rationales for the Order are pre-textual and meant to obfuscate its impermissible discriminatory purpose. For relief, the NAACP requests that the Court order a declaration that the Order is unlawful and invalid, and issue a permanent injunction enjoining the President of the United States, the U.S. Secretary of Labor, and the U.S. Department of Labor from implementing or enforcing any part of the Order.

While the NAACP seeks immediate relief, federal government contractors will need to take a wait-and-see approach as the litigation plays out, with many variables at play, including potential appeals to the United State Supreme Court, and the outcome of the presidential election.