A federal court in San Jose, California, issued a preliminary injunction on December 22 against enforcement of two key provisions of President Donald Trump’s Executive Order 13950, which prohibits the Defense Department, civilian federal agencies, federal contractors and grant recipients from carrying out diversity and inclusion training programs that include concepts offensive to President Trump. District Judge Beth Labson Freeman found that the plaintiffs, a group of LGBT and AIDS organizations that provide such training to their staffs and to other organizations, had standing to challenge the portions of the Order that are applicable to their activities on 1st and 5th Amendment grounds and were sufficiently likely to be successful that they were entitled to a preliminary injunction while the case is pending. Santa Cruz Lesbian and Gay Community Center v. Trump, Case No. 20-cv-07741-BLF (N.D. Cal., San Jose Div., Dec. 22, 2020).
Trump signed his Executive Order on September 22, a few weeks after the federal Office of Management & Budget (OMB) had issued a similar memorandum to federal agencies on “Training in the Government,” warning against agencies conducting diversity training that includes concepts that Trump had disapproved in a prior internal executive branch directive. The memo described as “divisive, un-American propaganda training sessions” any activities that would relate to such subjects as “critical race theory,” “white privilege,” or any suggestion that the U.S. is “an inherently racist or evil country.” In short, the memo, and the subsequent Executive Order, paints a cartoonish and exaggerated picture of the kind of diversity training sessions that have become widespread through both the private and public sectors in recent years, responding to an expanding professional literature about unconscious bias and implicit racism and sexism.
The Executive Order targets diversity training in the armed forces (section 3), in civilian federal agencies (section 6), in organizations that have contracts with the federal government (section 4), and in organizations that receive grants from the federal government to carry out programs (section 5). The Order seeks to censor the content of such training programs, even if they are not specifically funded by the federal government or are not the subject matter of a federal contract or grant, as long as they are conducted by organizations that have federal contracts or receive federal grants. OMB issued a memorandum on September 28 detailing how the Order would be enforced.
Within weeks of Trump signing the Order, organizations theoretically affected by the ban started to cancel diversity programs, some of which were provided by some of the organizations that are among the plaintiffs in this lawsuit filed by Lambda Legal and cooperating attorneys from the law firm Ropes & Gray. Some individual consultants who provide diversity training services also reported cancellation of programs for which they were contracted.
The lead plaintiff is the Santa Cruz Lesbian and Gay Community Center, which also operates under the name “Diversity Center of Santa Cruz.” Other organizational plaintiffs include the Los Angeles LGBT Center, The AIDS Foundation of Chicago, the Bradbury-Sullivan LGBT Community Center in Lehigh Valley, Pennsylvania, the NO/AIDS Task Force in New Orleans, and SAGE (headquartered in New York). The government’s initial response to the lawsuit was to deny that the plaintiffs had “standing” to sue, or that any of their constitutional rights were threatened or violated. Among other things, the government argued that the 1st Amendment does not restrict it from deciding how federal money will be spent or the content of training offered to federal employees.
Turning to standing, it quickly became clear to the court and the parties that the plaintiffs, all private sector organizations, could most easily satisfy standing requirements to challenge sections 4 and 5, dealing with contractors and grant recipients, because all the organizational plaintiffs either have federal contracts or receive federal grants. Indeed, for some of them a majority of their funding comes from the federal government, and the court found that the possibility that the restrictions in the EO will be enforced against them are not merely hypothetical, given the enforcement directives of the OMB memo and the cancellation of programs that have already occurred because presenting organizations feared losing federal contracts or funding.
The court also found that despite some lack of clarity in the Order about what could or could not be included in training programs, because of the vague and convoluted language (which is typical of Trump Administration executive orders), it was very likely that the plaintiffs would be targeted for enforcement because of the content of their training programs.
“The September 28 Memorandum issued by the OMB Director specifically directs agencies to identify entities that promote the prohibited “divisive concepts” by doing keyword searches for the terms “critical race theory,” “white privilege,” “intersectionality,” “systemic racism,” “positionality,” “racial humility,” and “unconscious bias,” wrote Judge Freeman. “As Plaintiffs’ counsel commented at the hearing, these keyword searches may as well have been designed to target Plaintiffs.”
Having established standing concerning sections 4 and 5, the court turned to the four-part test for preliminary relief: likelihood of success on the merits, irreparable harm to plaintiffs if the injunction is not issued, balance of the equities as between the plaintiffs and the government, and the public interest. The court found that all four tests are satisfied.
The Supreme Court’s decisions on similar claims have engaged in difficult line-drawing between the degree to which the government can control the speech of contractors and grantees and the degree to which they retain freedom of speech with respect to issues of public concern. Opposing the motion, the government claimed that it was within its rights to impose these restrictions, but Judge Freeman found that the plaintiffs’ training programs were entitled to 1st Amendment protection, especially when it came to training they did of their own employees as part of their goal to provide appropriate non-discriminatory service to their clients. The Order seeks to control that, even when the federal contract has nothing to do directly with diversity training, likewise with grantees. Furthermore, the training directly involves matters of public interest and concern.
“Although 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,” wrote Judge Freeman, “that interest can be protected by narrowing the scope of this preliminary injunction. Thus, the Government’s interest is outweighed by the effect of the impermissible reach of the Executive Order on Plaintiff’s freedom to deliver the diversity training and advocacy they deem necessary to train their own employees and the service providers in the communities in which they work, using funds unrelated to the federal contract.”
Several major research universities submitted an amicus brief in support of plaintiffs, pointing out how the section 5 restrictions “appear to require universities that accept federal grants to curtail promotion of these concepts through teaching, training and discussion. The 8 Institutions of Higher Education argue persuasively that “scholars need to be able to give voice to, and indeed ‘endorse,’ opposing views in order for intellectual progress to occur. The Order inhibits this advancement – which is a core component of amici’s missions.”” The court saw in the OMB memorandum that the implementation directive was aimed at “actually imposing the condition on as many grant programs as possible,” presenting a clear threat to freedom of speech in the academic setting.
As to the Due Process claim, the language of the EO and the OMB memorandum, while specific in some respects, was vague in others, so that a contractor or grantee might have difficulty determining whether particular subjects in their diversity training programs were covered by the Order. The court found that an FAQ section in the OMB Memo made the ambiguity even worse. “In conclusion,” wrote Freeman, “the Court finds wholly unpersuasive the Government’s assertions that Sections 4 and 5 of the Executive Order are clear or that any ambiguities may be easily resolved,” so plaintiffs were likely to succeed in showing that those sections are void for vagueness in violation of the Due Process Clause of the 5th Amendment.
Furthermore, the chilling of 1st Amendment rights is generally deemed to be an “irreparable injury” by the federal courts, and the protection of 1st Amendment rights is generally deemed to be within the public interest, so the court concluded that the tests for preliminary injunctive relief had been satisfied, and that narrowing the scope of the injunction to Sections 4 and 5 was sufficient to meeting the Government’s objection. The court accepted the plaintiffs’ argument that only a nationwide injunction would suffice, given the geographical diversity of the co-plaintiffs and the scope of their training activities, which were certainly not confined to the northern California counties within the judicial district of the court. Similarly, Judge Freeman rejected the argument that injunctive relief should be limited to the plaintiff organizations and individuals, and noted that the plaintiffs had not asked for the injunction to run personally against the lead defendant, one Donald J. Trump, but rather against the government agencies that would enforce the Order.
If the Trump Administration follows its usual course, it will seek a stay of the injunction from the court while it appeals to the 9th Circuit. But perhaps, since the Trump Administration has only a month to go, it may not bother to seek immediate review.
