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October 22, 2020

President's Executive Order on Diversity Training: Impact on Colleges and Universities

On September 22, 2020, President Trump issued Executive Order 13950 with respect to diversity training provided to government employees, employees of government contractors, subcontractors, and suppliers as well as recipients of federal grants. The order prohibits workplace training that “inculcates in [the] employees” any form of race or sex stereotyping or any form of race or sex scapegoating.

The order requires that all government contracts contain a provision requiring the contractor to agree to comply with the provisions of the order. Any contractor or subcontractor found to have violated the order may have its contract cancelled or be debarred from contracting with the federal government. The order requires the Office of Federal Contract Compliance Programs (OFCCP) to set up a hotline to accept complaints about federal contractors violating the order.

The order and rulemaking flowing from the order have enormous potential implications for higher education. In addition to implications for instructional and research contracts and grants, the order applies to campus law enforcement, to Title VII and Title IX training, and in student conduct training and proceedings. Two recent publications provide context for the scope of the order and the potential for further expansion of its application.

On September 28, the Office of Management and Budget issued an OMB Memo outlining steps federal awarding agencies must take to implement the order. The memo delves into “allowable cost(s)” for training and education of employees of contractors and subcontractors without language limiting the application of the order to those employees being trained for work related to federal government contracts and subcontracts. The memo stresses that commencing or continuing prohibited training “will result in consequences.”

The OMB memo goes beyond the order’s application to future contracts by requiring that existing contracts be reviewed to ensure consistency with the order.

Agencies are beginning to fulfill the mandate to monitor compliance at the agency level. On October 7, the US Department of Labor through OFCCP issued guidance for federal contractors on the enforcement of Executive Order 13950. The guidance echoes the memo by allowing OFCCP to immediately investigate claims of sex and race stereotyping. This is accomplished by citing the Johnson-era Executive Order 11246, which broadly prohibits discrimination in employment by government contractors and subcontractors.

In another sign OFCCP intends to apply the order immediately, the link for reporting claims of sex and race stereotyping is live on the OFCCP website.

Additional rulemaking is anticipated. Hotline activity and resulting investigations are expected.

If you have any questions regarding the content of this alert, please contact Michael Murphy, partner, at mjmurphy@barclaydamon.com, or another member of the Higher Education Team.

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