In previous blogs, we wrote about Executive Order 13950, Combating Race and Sex Stereotyping, and the NAACP’s lawsuit to enjoin implementation of Executive Order 13950. Since then, other groups have filed suit also seeking to enjoin implementation and enforcement of the Executive Order. On December 22, 2020, the U.S. District Court for the Northern District of California issued an Order granting in part a motion for a nationwide preliminary injunction in Santa Cruz Lesbian and Gay Community Center, et al. v. Trump, No. 5:20-cv-07741-BLF (N.D. Cal. Dec. 22, 2020).

Executive Order 13950

Executive Order 13950 directed federal agencies, effective November 21, 2020, to include a clause in their contracts that prohibits government contractors, during contract performance, from conducting any workplace training that “inculcates” (i.e., instills through persistent instruction) in their employees any form of race or sex stereotyping or any form of race or sex scapegoating. Certain contracts exempt from Executive Order 11246 do not fall under the EO. The Executive Order defines race or sex stereotyping as 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. It defines race or sex scapegoating as assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex.

Lawsuits to Enjoin Implementation of EO

After Executive Order 13950 was issued, a number of groups filed suits seeking to enjoin its implementation on constitutional grounds. On December 22, 2020, the district court issued an Order enjoining implementation with regard to government contractors and grant recipients. The Plaintiffs did not ultimately seek to enjoin the sections of the Executive Order dealing with the training of the military and federal workers.

In their lawsuit, the Plaintiffs argued that Executive Order 13950 violated the First Amendment Free Speech Clause because it “impermissibly chills the exercise of the Plaintiffs’ constitutionally protected speech, based on the content and viewpoint of their speech.” The Plaintiffs also argued that the Executive Order violates the Plaintiffs’ rights under the Fifth Amendment Due Process Clause and is void for vagueness because it “infringes on Plaintiffs’ constitutionally protected right to free speech and provides inadequate notice of the conduct it purports to prohibit.” Since this was a preliminary injunction motion, the Plaintiffs had the burden of proving, among other things, that they were likely to prevail on the merits.

District Court Conclusion

The district court concluded that the Plaintiffs were likely to prevail on their free speech argument. The court noted that the restricted speech, which addresses issues of racism and discrimination, goes to matters of public concern. With regard to the effect of the Executive Order on government contractors, the court stated, “Section 4 of the Executive Order restricts a federal contractor’s ability to use its own funds, to train its own employees, on matters that potentially have nothing to do with the federal contract.”

The district court also concluded that the Plaintiffs were likely to prevail on their due process argument. The court found that the sections of the Executive Order applicable to government contractors and grant recipients were so vague that it was impossible for the Plaintiffs to determine what conduct was prohibited. It also found that the Department of Labor’s FAQs exacerbated the ambiguity with its discussion of training that teaches or implies (which is impermissible) and training that informs (which is permissible). The court stated, “[T]he Government’s own interpretation of the reach of the Executive Order provides even more uncertainty about the scope of prohibited conduct.”

The district court issued a preliminary injunction prohibiting the Federal Government from enforcing the Executive Order for government contractors and grant recipients. It remains to be seen, however, what the ultimate outcome of the case will be and whether President-elect Biden will rescind the Executive Order. We will issue additional updates accordingly.