Category: Law & Justice

Categories
Civil Rights Law & Justice Legal Title IX Uncategorized

Court Rules University of Colorado-Boulder May Have Violated Student’s Due Process Rights

The University of Colorado-Boulder’s (CU) refusal to allow “live adversarial questioning” in a sexual misconduct proceeding may violate an expelled student’s due process rights, a federal judge ruled last week.

Colorado District Court previously denied summary judgment to CU Boulder on multiple due process grounds: (1) Propriety of single-investigator model, (2) lack of hearing, (3) lack of cross-examination, and (4) withholding information.

The taxpayer-funded university will have to explain to U.S. District Judge William Martinez at a December bench trial why it didn’t give Girolamo Messeri, an Italian student, “a hearing before a neutral arbitrator” in his Title IX case.

On single-investigator model and right to hearing, the court notes: Requiring a hearing before a neutral arbitrator would also reduce the risk of error….providing a fresh perspective on any credibility determinations and decrease the likelihood that a party would be erroneously found responsible. It continues, “A reasonable fact-finder could thus find that the University’s failure to provide (student) a hearing before a neutral arbitrator violated his procedural due process.

Judge Martinez stated CU violated the student’s due process by not allowing cross-examination of his accuser and witnesses.

In his decision, the judge gave a remarkably blunt conclusion on cross-examination: The Supreme Court has stated that “cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.”

He continued: This is a classic ‘he said, she said’ case that turns almost entirely on witness credibility. Without live adversarial questioning, Plaintiff cannot probe the witnesses’ stories to test their memories or potential ulterior motives, or to observe the witnesses’ demeanor. Plaintiff has a substantial interest in avoiding expulsion and continuing his education. The university’s interest in limiting procedural safeguards relating to student’s hearing rights are less evident. Although the University correctly points out that it has an interest in avoiding ‘converting its classrooms to courtrooms’ to referee cross-examination amongst students and their representatives, this interest truly pales in comparison to the risk of error which may result in the wrongful expulsion of a student.

The judge was also stunned by the University’s excuse for hiding the identity of a key witness. CU-Boulder simply claimed that constitutional due process does not promise accused students “every piece of evidence they desire,” and it cited an irrelevant appeals court decision from a case where opposing witnesses openly testified. Martinez disagreed with the University. Since the witness known as “W1” didn’t testify in front of Messeri, he was “effectively deprived of an opportunity to discover any inconsistencies…that were not plainly evident” in the evidence summary given to Messeri. The judge concluded: “Disclosure of key witnesses’ names provides a minimal burden on the University. The probative value of the information and risk of erroneous deprivation, however, is potentially substantial.”

The next step in the litigation is a trial preparation conference scheduled for Nov. 13. The December bench trial will not include the student’s gender-bias claim, which was previously rejected by Martinez.

The university expelled Messeri in December 2016 after finding that he forced a female who was not a student at CU to perform oral sex on him in September. She did not notify CU Boulder administrators of her allegations, but rather reported Messeri to campus police, who interviewed “Jane Doe” three times over six weeks and Messeri once. While Messeri was charged with sexual assault, the Boulder District Attorney’s Office dismissed the case because “it did not believe it could get a guilty verdict at trial.”

Messeri is seeking both damages and erasure of his expulsion from his transcript.

Categories
Civil Rights Department of Justice Due Process Law & Justice Legal Sexual Assault Title IX

Amy Coney Barrett Could Change Campus Sexual Assault Rules Forever

Amy Coney Barrett, President Donald Trump’s Supreme Court nominee, could have a huge impact on how campus sexual assault cases are handled if appointed to the nation’s highest court.

Experts told Newsweek how Barrett’s appointment could affect Title IX after she wrote an appellate decision last year that made it easier for students accused of committing campus sexual assaults to challenge their university’s handling of the cases.

Title IX is the landmark civil rights law passed as part of the Education Amendments of 1972, aimed at protecting students from discrimination based on sex in education programs or activities that receive federal financial assistance.

A spokesperson for the University of Notre Dame, where Barrett is on the faculty, directed inquiries to the White House.

In a statement, a White House spokesperson said: “In Doe v. Purdue, Judge Barrett understood the importance of fair procedures for campus sexual misconduct proceedings and that Title IX protects both men and women from sex discrimination in such proceedings. In addition, Judge Barrett’s approach has been favorably cited by the Third, Sixth, and Eighth circuits.”

Barrett’s decision in Purdue University case

Last year, Barrett wrote an influential unanimous three-judge panel decision in the case of John Doe v. Purdue University for the U.S. Court of Appeals for the Seventh Circuit—a case involving students, identified only as Jane and John Doe, at the university in West Lafayette, Indiana.

Jane alleged her boyfriend had sexually assaulted her on two occasions in November 2015. John later filed a federal lawsuit against the university, arguing it had used constitutionally flawed procedures to determine his guilt. He also claimed the school had violated Title IX when it expelled him and took away his Navy ROTC scholarship.

In her decision, Barrett concluded Purdue’s process had been unfair and that the university may have discriminated against John based on his sex.

According to a summary of the case in the ruling, based on John’s account, Jane and John had been students in Purdue’s Navy ROTC program when they started dating in the fall of 2015. They had consensual sex between 15 and 20 times between October and December that year.

In December, Jane attempted suicide in front of John and they stopped dating after he later reported the attempt to the university. A few months later, during the university’s Sexual Assault Awareness Month, Jane accused John of sexually assaulting her on two occasions.

She alleged that she had been sleeping with John in his room in November 2015 when she woke to him groping her over her clothes without her consent. She said she had told him it was not okay.

Jane also alleged that John then confessed he had digitally penetrated her while the two were sleeping in Jane’s room earlier that month. John denied all of Jane’s allegations.

She never filed a formal complaint or testified about the alleged assaults, but the university pursued the case on her behalf, according to Barrett’s decision.

“The case against him boiled down to a ‘he said/she said’—Purdue had to decide whether to believe John or Jane,” Barrett wrote.

Barrett criticized Katherine Sermersheim, the university’s dean of students and Title IX co-ordinator, who allegedly sided with Jane without speaking to her. “It is plausible that Sermersheim and her advisors chose to believe Jane because she is a woman and to disbelieve John because he is a man,” Barrett wrote.

She added: “Sermersheim’s explanation for her decision (offered only after her supervisor required her to give a reason) was a cursory statement that she found Jane credible and John not credible.

“Her basis for believing Jane is perplexing, given that she never talked to Jane. Indeed, Jane did not even submit a statement in her own words.”

Barrett also cited the university’s alleged mistakes in the handling of the case, saying John was not allowed to view the investigators’ report and had been handed a redacted version only moments before his disciplinary hearing.

According to Barrett’s ruling, John learned that it falsely claimed he had confessed to Jane’s allegations and did not mention that John had reported Jane’s suicide attempt to the university.

“Two members of the panel candidly stated that they had not read the investigative report,” Barrett wrote. “The one who apparently had read it asked John accusatory questions that assumed his guilt. Because John had not seen the evidence, he could not address it. He reiterated his innocence and told the panel about some of the friendly texts that Jane had sent him after the alleged assaults.”

Jane did not appear before the disciplinary panel or submit a written statement, the decision said. Instead, a written summary of her allegations was submitted by the Center for Advocacy, Response, and Education (CARE), a campus group dedicated to supporting victims of sexual violence.

The group posted an article from The Washington Post titled “Alcohol isn’t the cause of campus sexual assault. Men are” on Facebook the same month John was disciplined, Barrett wrote in the ruling.

The university’s disciplinary panel also did not allow John to present witnesses, Barrett wrote, which included a male roommate who was reportedly in the room at the time of the alleged assault and disputed Jane’s account.

Barrett concluded the university’s process “fell short of what even a high school must provide to a student facing a days-long suspension.”

“John received notice of Jane’s allegations and denied them, but Purdue did not disclose its evidence to John. And withholding the evidence on which it relied in adjudicating his guilt was itself sufficient to render the process fundamentally unfair,” she wrote.

“It is particularly concerning that Sermersheim and the committee concluded that Jane was the more credible witness—in fact, that she was credible at all—without ever speaking to her in person.”

Barrett also said that John’s claims of sex discrimination were bolstered by the pressure put on schools and university by the Obama administration to tackle sexual assault and harassment on campus.

Because the Department of Education’s Office of Civil Rights had opened two investigations into Purdue in 2016, the pressure on the university to demonstrate compliance “was far from abstract,” Barrett wrote. “That pressure may have been particularly acute for Sermersheim, who, as a Title IX coordinator, bore some responsibility for Purdue’s compliance.”

The lawsuit remains unresolved and John still needs to prove he was discriminated on the basis of his sex to win his Title IX claim before a jury.

How Barrett’s decision could change campus sexual assault rules

Andrew Miltenberg, an attorney representing John, told Newsweek that Barrett’s ruling “set a standard by which [schools] have to hold themselves during an investigation.”

He added that it “not only recognized that there are procedural due process issues, which have to be preserved for someone accused, regardless of what they’re accused of but it also accepted the fact that it’s possible that, whether it’s an investigator, a hearing officer, or a campus culture, there can be bias within the system based on gender and based on a male being the accused.”

Miltenberg added: “We’re not at the point where a judge can decide whether we have enough evidence to win the case, that’s what the discovery process is for, but we are at a point for a judge to recognize that there is a basis for these allegations.”

According to The Washington Post, Purdue University filed a counterclaim in June asking the court to declare Doe’s misconduct violated university policy and that the university was acting within its rights when it suspended him.

Tim Doty, a spokesman for the university, said in a statement to Newsweek: “While Purdue believes in its process and decision-making, we recognize the appellate court was bound by legal procedure to accept each of John Doe’s allegations as true and did not have the benefit of a full evidentiary record when it decided the case.

“That evidentiary record is currently being developed in the district court, and the university looks forward to the opportunity to present its full defense of this matter at the appropriate time and in the appropriate venue.”

Ruth Bader Ginsburg’s views on Title IX

The late Justice Ruth Bader Ginsburg, who Barrett would be replacing if confirmed, has spoken about due process for those accused of sexual misconduct—and said she believed criticism of some college codes of conduct on the matter was valid.

“The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that,” Ginsburg told The Atlantic in 2018.

“Recognizing that these are complaints that should be heard. There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing.”

Asked about how to balance due process with the need for increased gender equality, Ginsburg replied: “It’s not one or the other. It’s both. We have a system of justice where people who are accused get due process, so it’s just applying to this field what we have applied generally.”

Brett Sokolow, a consultant who advises schools and universities on compliance with Title IX, says Barrett’s opinion in Purdue would make it easier for accused students to bring civil litigation against universities.

“If an erroneous outcome case makes it to the Supreme Court, Barrett as the author of Doe v. Purdue University, would be a likely vote in favor of the “plausible inference” standard,” he told Newsweek.

“Setting up the kind of circuit split the Supreme Court likes to referee, other circuits seem to follow a pleading standard that makes it harder for a respondent in a campus sexual assault case to prove the outcome of the campus case was infected with sex bias.

“Barrett’s lowering of that standard in Purdue, if adopted by the Supreme Court, would make it much easier for respondents to sue and move their cases forward through motions to dismiss and perhaps summary judgment. They still have to prove sex bias at trial, but Barrett’s opinion in Purdue greatly simplifies the ways that respondents can prove disparate treatment under Title IX.”

“Drastically rolls back protections for student survivors”

Sokolow noted that Barrett’s appointment to the Supreme Court could also significantly affect Title IX in other ways.

He said Kollaritsch v. Michigan State University Board of Trustees is likely headed to the Supreme Court. “This case is fundamental to the future of Title IX, and will decide whether post-harassment or assault is required for deliberate indifference liability under Title IX,” he explained.

“The key question is once sexual harassment and/or assault takes place, and a school is deliberately indifferent to it, does it have to lead to a second act of sexual harassment or assault for liability to result? Barrett would be a likely “yes” vote in a decision that would significantly narrow the Court’s previous precedent in Davis v. Monroe County.”

The Supreme Court’s ruling in that case held that schools may be liable under Title IX if their response to a known act of student-on-student sexual harassment was “deliberately indifferent.”

Emily Martin, the vice president of education and workplace justice at National Women’s Law Center, told Newsweek that it was “deeply troubling” that a school’s commitment to taking sexual misconduct seriously had been suggested by Barrett as evidence of bias against men in the Purdue case.

“It’s a deeply troubling prospect that an icon of gender equality like Justice Ginsburg could be replaced with a judge who is eager to use sex discrimination laws in order to attack efforts to forward gender equality,” she said.

“It is no surprise the same administration that is doing everything it can to silence student survivors would put forward a nominee who goes out of her way to endorse this backwards and harmful view of Title IX.”

Martin’s was referring to changes to the Department of Education’s Title IX rules by Secretary Betsy DeVos that give a number of protections to those accused of sexual assault on college campuses, which came into effect in August.

They new guidelines narrow the definition of what can be deemed sexual harassment and require in-person cross-examinations between alleged perpetrators and their accusers.

Know Your IX, a political advocacy group, said the move “drastically rolls back protections for student survivors and makes it easier for schools to sweep sexual harassment under the rug.”

K.C. Johnson, a history professor at Brooklyn College and the City University of New York Graduate Center described Barrett’s decision in the Purdue case as the “single most consequential ruling in the area.” He told the Post that it had set a fair, simplified standard that has since been adopted by other circuit courts covering 22 states as well as the federal district court in Washington, D.C.

But Alexandra Brodsky, a staff attorney at Public Justice, a nonprofit legal advocacy organization, told Newsweek: “If Judge Barrett’s approach in Doe v. Purdue were to become the law of the land, though, schools and civil rights agencies would be in a terrible bind:

“By her logic, any efforts to enforce the rights of survivors and other marginalized people are evidence of bias against men and other dominant groups. That is wrong as a matter of law and reality. Students of all genders—men included—benefit when schools respect victims’ rights under Title IX.”

In a recent blog post, Brodsky wrote that Barrett’s opinion in John Doe v. Purdue University was “troubling” because the ruling “turned a sex discrimination statute on its head, using a law meant to prevent and address sexual assault to promote impunity for that very same behavior.”

She said while Barrett’s decision on due process in the case may “may well have been right,” the ruling on the Title IX claim is not only wrong, but “disturbing.”

“Even by Doe’s own account, there was no evidence the school had suspended him because of his sex, as required to state a claim under Title IX,” according to Brodsky.

One of the most disturbing aspects of Barrett’s decision is that “it treats the Department of Education’s efforts to enforce survivors’ Title IX rights as evidence of anti-male bias,” she said.

“Yet Judge Barrett relied on evidence that the school was trying to do right by survivors as evidence that it discriminated against men specifically. That will discourage schools from meaningfully addressing sexual violence, since doing so may—according to Purdue’s funhouse mirror vision of Title IX—justify a suspended student’s suit.”

She said, by Purdue’s logic, any attempt to combat discrimination “will instead serve to protect people who discriminate from consequences for their actions—consequences that may be necessary to root out injustice.”

This article has been updated with a statement from a White House spokesperson.

https://www.newsweek.com/amy-coney-barrett-appointment-campus-sex-assault-1534575

Categories
Campus Due Process Law & Justice Legal Title IX

Sex, Due Process and Amy Coney Barrett

Three other appellate courts followed her 2019 Title IX opinion—a mark of her quality as a jurist.

By KC Johnson
Sept. 30, 2020 7:15 pm ET

 

Amy Coney Barrett’s Supreme Court nomination likely will bring renewed attention to the issue of Title IX litigation filed by students accused of sexual misconduct on campus. As a judge on the Seventh U.S. Circuit Court of Appeals, Ms. Barrett wrote a 2019 decision that revolutionized how courts consider Title IX claims from accused students. Lawsuits in this area have multiplied since 2011 guidance from the Obama administration, which pressed universities to adopt biased procedures to favor accusers, hoping that doing so would increase reporting of campus allegations. Several other courts of appeals embraced Judge Barrett’s standard, which now applies to claims in 22 states. Beyond its importance to Title IX law, the opinion speaks to Judge Barrett’s quality as a jurist.

The case involved a relationship between two Purdue University students that ended after the male student reported his girlfriend’s suicide attempt to school officials. Four months later, the female student claimed that before they broke up, her boyfriend had sexually assaulted her as she slept. She had a campus victims’ rights group write her statement and then declined to appear at the Title IX hearing. A three-member university panel nonetheless found her claims credible, despite never hearing directly from her.

The panelists based their decision on an investigative report that the accused student said university officials refused to let him see. Their decision cost the accused student his ROTC scholarship and a potential career in the Navy. His case eventually came before a panel of Judges Barrett, Diane Sykes and Amy St. Eve in September 2018. Judge Barrett wrote its unanimous 30-page ruling nine months later.

The opinion was noteworthy for three reasons. First, it devised a new standard—both simpler and fairer—for courts to evaluate Title IX claims filed by accused students. The previous standard, offered by the Second Circuit in 1994, required accused students to jump through doctrinal hoops to raise a plausible claim. Courts would first establish whether a wrongful finding of guilt might have occurred, then search for sex discrimination elsewhere in the process, rather than evaluating the college’s adjudication as a whole.

Judge Barrett’s opinion dispensed with all this. Instead, she returned to the text of the statute, and instructed courts to ask a simple question: “do the alleged facts, if true, raise a plausible inference that the university discriminated against [the accused student] ‘on the basis of sex’?” The Purdue panel answered that question in the affirmative, citing the combination of the student’s likely innocence, the university’s procedural irregularities, and possible sex bias by the organization that drafted the accuser’s statement.

Second, the quality of the opinion has given it an outsize impact. In the past four months, three other appeals courts have adopted the Purdue test for Title IX lawsuits in states under their jurisdiction. Citing the Purdue opinion, Judge Raymond Kethledge of the Sixth Circuit argued in a June decision that an Oberlin College accused student’s “strongest evidence is perhaps the merits of the decision itself in his case,” since in a Title IX case where a school finds a seemingly innocent student guilty, “the merits of the decision itself, as a matter of common sense, can support an inference of sex bias.”

In September, the Eighth Circuit, also using the Purdue standard, issued a similar ruling in a case involving a University of Arkansas student whose guilty finding the court described as “unexplained” based on the record. And the Third Circuit explained that Judge Barrett’s proposed “straightforward pleading standard . . . hews most closely to the text of Title IX.” Given that Supreme Court opinions must not only decide the case before them but also provide clear guidance for lower courts, it’s significant that other appeals courts are adopting the Purdue opinion’s reasoning.

Judge Barrett devised a standard that protects likely innocent students, giving priority to the text of the statute itself to produce a simpler test for courts to follow. It is an impressive accomplishment.

Finally, the Purdue opinion rebuts criticism of Judge Barrett as a jurist focused on outcomes and blinded by ideology. The accused student also alleged that Purdue violated his constitutional rights, including by denying him the chance to cross-examine his accuser. Such claims are common in Title IX litigation; after the Obama administration “strongly” discouraged cross-examinations, most universities barred them.

The Purdue case provided an almost perfect fact pattern for a judge eager to impose a cross-examination requirement. Yet Judge Barrett’s opinion held that because Purdue’s conduct might have violated the student’s rights on more clearly defined questions—insufficient notice of the evidence against him, and possibly a “sham” hearing—the court didn’t need to address the cross-examination issue. Judge Barrett exercised judicial restraint.

As Nancy Gertner, a Harvard law professor and a former federal judge, recently observed, “Judges of all stripes around the country have been concerned with fairness in these proceedings.” It’s unlikely that Judge Barrett’s nomination will rise or fall on her decision to join scores of her colleagues in issuing a ruling favorable to a student accused of sexual misconduct. But to the extent that concerns such as intellectual quality or judicial temperament still play a role in the confirmation process, Judge Barrett’s Purdue opinion should serve her well.

Mr. Johnson is a co-author of “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities.”

https://www.wsj.com/articles/sex-due-process-and-amy-coney-barrett-11601507741

Categories
Executive Order Law & Justice Race Sex Stereotyping

Executive Order on Combating Race and Sex Stereotyping

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Property and Administrative Services Act, 40 U.S.C. 101 et seq., and in order 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 and scapegoating, it is hereby ordered as follows:

Section 1. Purpose. From the battlefield of Gettysburg to the bus boycott in Montgomery and the Selma-to-Montgomery marches, heroic Americans have valiantly risked their lives to ensure that their children would grow up in a Nation living out its creed, expressed in the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal.” It was this belief in the inherent equality of every individual that inspired the Founding generation to risk their lives, their fortunes, and their sacred honor to establish a new Nation, unique among the countries of the world. President Abraham Lincoln understood that this belief is “the electric cord” that “links the hearts of patriotic and liberty-loving” people, no matter their race or country of origin. It is the belief that inspired the heroic black soldiers of the 54th Massachusetts Infantry Regiment to defend that same Union at great cost in the Civil War. And it is what inspired Dr. Martin Luther King, Jr., to dream that his children would one day “not be judged by the color of their skin but by the content of their character.”

Thanks to the courage and sacrifice of our forebears, America has made significant progress toward realization of our national creed, particularly in the 57 years since Dr. King shared his dream with the country.

Today, however, many people are pushing a different vision of America that is grounded in hierarchies based on collective social and political identities rather than in the inherent and equal dignity of every person as an individual. This ideology is rooted in the pernicious and false belief that America is an irredeemably racist and sexist country; that some people, simply on account of their race or sex, are oppressors; and that racial and sexual identities are more important than our common status as human beings and Americans.

This destructive ideology is grounded in misrepresentations of our country’s history and its role in the world. Although presented as new and revolutionary, they resurrect the discredited notions of the nineteenth century’s apologists for slavery who, like President Lincoln’s rival Stephen A. Douglas, maintained that our government “was made on the white basis” “by white men, for the benefit of white men.” Our Founding documents rejected these racialized views of America, which were soundly defeated on the blood-stained battlefields of the Civil War. Yet they are now being repackaged and sold as cutting-edge insights. They are designed to divide us and to prevent us from uniting as one people in pursuit of one common destiny for our great country.

Unfortunately, this malign ideology is now migrating from the fringes of American society and threatens to infect core institutions of our country. Instructors and materials teaching that men and members of certain races, as well as our most venerable institutions, are inherently sexist and racist are appearing in workplace diversity trainings across the country, even in components of the Federal Government and among Federal contractors. For example, the Department of the Treasury recently held a seminar that promoted arguments that “virtually all White people, regardless of how ‘woke’ they are, contribute to racism,” and that instructed small group leaders to encourage employees to avoid “narratives” that Americans should “be more color-blind” or “let people’s skills and personalities be what differentiates them.”

Training materials from Argonne National Laboratories, a Federal entity, stated that racism “is interwoven into every fabric of America” and described statements like “color blindness” and the “meritocracy” as “actions of bias.”

Materials from Sandia National Laboratories, also a Federal entity, for non-minority males stated that an emphasis on “rationality over emotionality” was a characteristic of “white male[s],” and asked those present to “acknowledge” their “privilege” to each other.

A Smithsonian Institution museum graphic recently claimed that concepts like “[o]bjective, rational linear thinking,” “[h]ard work” being “the key to success,” the “nuclear family,” and belief in a single god are not values that unite Americans of all races but are instead “aspects and assumptions of whiteness.” The museum also stated that “[f]acing your whiteness is hard and can result in feelings of guilt, sadness, confusion, defensiveness, or fear.”

All of this is contrary to the fundamental premises underpinning our Republic: that all individuals are created equal and should be allowed an equal opportunity under the law to pursue happiness and prosper based on individual merit.

Executive departments and agencies (agencies), our Uniformed Services, Federal contractors, and Federal grant recipients should, of course, continue to foster environments devoid of hostility grounded in race, sex, and other federally protected characteristics. Training employees to create an inclusive workplace is appropriate and beneficial. The Federal Government is, and must always be, committed to the fair and equal treatment of all individuals before the law.

But training like that discussed above perpetuates racial stereotypes and division and can use subtle coercive pressure to ensure conformity of viewpoint. Such ideas may be fashionable in the academy, but they have no place in programs and activities supported by Federal taxpayer dollars. Research also suggests that blame-focused diversity training reinforces biases and decreases opportunities for minorities.

Our Federal civil service system is based on merit principles. These principles, codified at 5 U.S.C. 2301, call for all employees to “receive fair and equitable treatment in all aspects of personnel management without regard to” race or sex “and with proper regard for their . . . constitutional rights.” Instructing Federal employees that treating individuals on the basis of individual merit is racist or sexist directly undermines our Merit System Principles and impairs the efficiency of the Federal service. Similarly, our Uniformed Services should not teach our heroic men and women in uniform the lie that the country for which they are willing to die is fundamentally racist. Such teachings could directly threaten the cohesion and effectiveness of our Uniformed Services.

Such activities also promote division and inefficiency when carried out by Federal contractors. The Federal Government has long prohibited Federal contractors from engaging in race or sex discrimination and required contractors to take affirmative action to ensure that such discrimination does not occur. The participation of contractors’ employees in training that promotes race or sex stereotyping or scapegoating similarly undermines efficiency in Federal contracting. Such requirements promote divisiveness in the workplace and distract from the pursuit of excellence and collaborative achievements in public administration.

Therefore, it shall be the policy of the United States not to promote race or sex stereotyping or scapegoating in the Federal workforce or in the Uniformed Services, and not to allow grant funds to be used for these purposes. In addition, Federal contractors will not be permitted to inculcate such views in their employees.

Sec. 2. Definitions. For the purposes of this order, the phrase:

(a) “Divisive concepts” means the concepts that (1) one race or sex is inherently superior to another race or sex; (2) the United States is fundamentally racist or sexist; (3) an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously; (4) an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex; (5) members of one race or sex cannot and should not attempt to treat others without respect to race or sex; (6) an individual’s moral character is necessarily determined by his or her race or sex; (7) an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex; (8) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or (9) meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race. The term “divisive concepts” also includes any other form of race or sex stereotyping or any other form of race or sex scapegoating.

(b) “Race or sex stereotyping” means ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex.

(c) “Race or sex scapegoating” means assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex. It similarly encompasses any claim that, consciously or unconsciously, and by virtue of his or her race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others.

(d) “Senior political appointee” means an individual appointed by the President, or a non-career member of the Senior Executive Service (or agency-equivalent system).

Sec. 3. Requirements for the United States Uniformed Services. The United States Uniformed Services, including the United States Armed Forces, shall not teach, instruct, or train any member of the United States Uniformed Services, whether serving on active duty, serving on reserve duty, attending a military service academy, or attending courses conducted by a military department pursuant to a Reserve Officer Corps Training program, to believe any of the divisive concepts set forth in section 2(a) of this order. No member of the United States Uniformed Services shall face any penalty or discrimination on account of his or her refusal to support, believe, endorse, embrace, confess, act upon, or otherwise assent to these concepts.

Sec. 4. Requirements for Government Contractors. (a) Except in contracts exempted in the manner provided by section 204 of Executive Order 11246 of September 24, 1965 (Equal Employment Opportunity), as amended, all Government contracting agencies shall include in every Government contract hereafter entered into the following provisions:

“During the performance of this contract, the contractor agrees as follows:

1. The contractor shall not use any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating, including the concepts that (a) one race or sex is inherently superior to another race or sex; (b) an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously; (c) an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex; (d) members of one race or sex cannot and should not attempt to treat others without respect to race or sex; (e) an individual’s moral character is necessarily determined by his or her race or sex; (f) an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex; (g) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or (h) meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race. The term “race or sex stereotyping” means ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex, and the term “race or sex scapegoating” means assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex.

2. The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice, to be provided by the agency contracting officer, advising the labor union or workers’ representative of the contractor’s commitments under the Executive Order of September 22, 2020, entitled Combating Race and Sex Stereotyping, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.

3. In the event of the contractor’s noncompliance with the requirements of paragraphs (1), (2), and (4), or with any rules, regulations, or orders that may be promulgated in accordance with the Executive Order of September 22, 2020, this contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246, and such other sanctions may be imposed and remedies invoked as provided by any rules, regulations, or orders the Secretary of Labor has issued or adopted pursuant to Executive Order 11246, including subpart D of that order.

4. The contractor will include the provisions of paragraphs (1) through (4) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, that in the event the contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction, the contractor may request the United States to enter into such litigation to protect the interests of the United States.”

(b) The Department of Labor is directed, through the Office of Federal Contract Compliance Programs (OFCCP), to establish a hotline and investigate complaints received under both this order as well as Executive Order 11246 alleging that a Federal contractor is utilizing such training programs in violation of the contractor’s obligations under those orders. The Department shall take appropriate enforcement action and provide remedial relief, as appropriate.

(c) Within 30 days of the date of this order, the Director of OFCCP shall publish in the Federal Register a request for information seeking information from Federal contractors, Federal subcontractors, and employees of Federal contractors and subcontractors regarding the training, workshops, or similar programming provided to employees. The request for information should request copies of any training, workshop, or similar programing having to do with diversity and inclusion as well as information about the duration, frequency, and expense of such activities.

Sec. 5. Requirements for Federal Grants. The heads of all agencies shall review their respective grant programs and identify programs for which the agency may, as a condition of receiving such a grant, require the recipient to certify that it will not use Federal funds to promote the concepts that (a) one race or sex is inherently superior to another race or sex; (b) an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously; (c) an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex; (d) members of one race or sex cannot and should not attempt to treat others without respect to race or sex; (e) an individual’s moral character is necessarily determined by his or her race or sex; (f) an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex; (g) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or (h) meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race. Within 60 days of the date of this order, the heads of agencies shall each submit a report to the Director of the Office of Management and Budget (OMB) that lists all grant programs so identified.

Sec. 6. Requirements for Agencies. (a) The fair and equal treatment of individuals is an inviolable principle that must be maintained in the Federal workplace. Agencies should continue all training that will foster a workplace that is respectful of all employees. Accordingly:

(i) The head of each agency shall use his or her authority under 5 U.S.C. 301, 302, and 4103 to ensure that the agency, agency employees while on duty status, and any contractors hired by the agency to provide training, workshops, forums, or similar programming (for purposes of this section, “training”) to agency employees do not teach, advocate, act upon, or promote in any training to agency employees any of the divisive concepts listed in section 2(a) of this order. Agencies may consult with the Office of Personnel Management (OPM), pursuant to 5 U.S.C. 4116, in carrying out this provision; and
(ii) Agency diversity and inclusion efforts shall, first and foremost, encourage agency employees not to judge each other by their color, race, ethnicity, sex, or any other characteristic protected by Federal law.

(b) The Director of OPM shall propose regulations providing that agency officials with supervisory authority over a supervisor or an employee with responsibility for promoting diversity and inclusion, if such supervisor or employee either authorizes or approves training that promotes the divisive concepts set forth in section 2(a) of this order, shall take appropriate steps to pursue a performance-based adverse action proceeding against such supervisor or employee under chapter 43 or 75 of title 5, United States Code.

(c) Each agency head shall:

(i) issue an order incorporating the requirements of this order into agency operations, including by making compliance with this order a provision in all agency contracts for diversity training;

(ii) request that the agency inspector general thoroughly review and assess by the end of the calendar year, and not less than annually thereafter, agency compliance with the requirements of this order in the form of a report submitted to OMB; and

(iii) assign at least one senior political appointee responsibility for ensuring compliance with the requirements of this order.

Sec. 7. OMB and OPM Review of Agency Training. (a) Consistent with OPM’s authority under 5 U.S.C. 4115-4118, all training programs for agency employees relating to diversity or inclusion shall, before being used, be reviewed by OPM for compliance with the requirements of section 6 of this order.

(b) If a contractor provides a training for agency employees relating to diversity or inclusion that teaches, advocates, or promotes the divisive concepts set forth in section 2(a) of this order, and such action is in violation of the applicable contract, the agency that contracted for such training shall evaluate whether to pursue debarment of that contractor, consistent with applicable law and regulations, and in consultation with the Interagency Suspension and Debarment Committee.

(c) Within 90 days of the date of this order, each agency shall report to OMB all spending in Fiscal Year 2020 on Federal employee training programs relating to diversity or inclusion, whether conducted internally or by contractors. Such report shall, in addition to providing aggregate totals, delineate awards to each individual contractor.

(d) The Directors of OMB and OPM may jointly issue guidance and directives pertaining to agency obligations under, and ensuring compliance with, this order.

Sec. 8. Title VII Guidance. The Attorney General should continue to assess the extent to which workplace training that teaches the divisive concepts set forth in section 2(a) of this order may contribute to a hostile work environment and give rise to potential liability under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. If appropriate, the Attorney General and the Equal Employment Opportunity Commission shall issue publicly available guidance to assist employers in better promoting diversity and inclusive workplaces consistent with Title VII.

Sec. 9. Effective Date. This order is effective immediately, except that the requirements of section 4 of this order shall apply to contracts entered into 60 days after the date of this order.

Sec. 10. General Provisions. (a) This order does not prevent agencies, the United States Uniformed Services, or contractors from promoting racial, cultural, or ethnic diversity or inclusiveness, provided such efforts are consistent with the requirements of this order.

(b) Nothing in this order shall be construed to prohibit discussing, as part of a larger course of academic instruction, the divisive concepts listed in section 2(a) of this order in an objective manner and without endorsement.

(c) If any provision of this order, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this order and the application of its provisions to any other persons or circumstances shall not be affected thereby.

(d) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department, agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(e) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(f) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

DONALD J. TRUMP

THE WHITE HOUSE,
September 22, 2020.

https://www.whitehouse.gov/presidential-actions/executive-order-combating-race-sex-stereotyping/