18 state AGs call to end Trump's crackdown on diversity training

NOTE: This article first appeared on FCW.com.

A coalition of 18 state attorneys general and the attorney general for the District of Columbia have called on President Donald Trump to withdrawal his September executive order banning "divisive concepts" in diversity training unless guidance on the order is updated to permit implicit bias and unconscious bias trainings.

The group cited a concern that the language in the executive order could effectively ban implicit bias training for federal grant recipients and contractors. They laid out their concerns in a letter led by Connecticut Attorney General William Tong and sent to the President on Friday, Oct. 30. It was publicly released Monday, Nov. 2.

"Implicit bias trainings are a vital component of advancing the goals of diversity, equity and inclusion," they wrote. "Any attempt to deny that all of us have unconscious biases is contrary to science and common sense."

The officials assert that they will continue workplace training on implicit bias, racism and sexism, and that they encourage federal contractors and grantees in their jurisdictions to also continue employee education on implicit bias, racism and sexism.

The request from these state-level officials is the latest in an ongoing backlash that includes a lawsuit from civil rights groups, complaints from business groups and confusion from federal contractors over how to implement the order. Many have pointed to a chilling effect on diversity and inclusion training as federal agencies, federal contractors and federal grant recipients seek to comply with the order and accompanying memos.

The signers contend that although the stated goal of the executive order is to ensure the fair and equal treatment of all individuals by preventing race and sex stereotyping or scapegoating, "the order has the opposite effect."

They point to confusion over whether memos and guidance on the executive order from the Office of Management and Budget (OMB) and the Department of Labor banned implicit bias training.

An OMB memo flagged terms including "unconscious bias" and "critical race theory" as problematic under the executive order. Labor Department guidance states that "unconscious or implicit bias training is prohibited to the extent it teaches or implies that an individual, by virtue of his or her race, sex, and/or national origin, is racist, sexist, oppressive, or biased, whether consciously or unconsciously."

Given the broad language in the executive order and the potential penalties concerning federal grants or contracts, there is already a chilling effect on training in their jurisdictions, they write.

The attorneys general also highlighted ambiguity around whether the reach of the order includes state officials or agencies, which are often recipients of federal contracts and grants.

Section 5 of the executive order calls for federal agency heads to identify grant programs where they can require recipients to certify that they won't promote the concepts banned by the executive order. Agency heads are to give OMB a list of identified grant programs by November 23.

"We are deeply concerned about the potential (intended or unintended) to direct or coerce the substance of our diversity training programs," the group of attorneys general write about this section of the executive order.

They have requested copies of these agency reports to OMB and a list of the federal grants that will include the condition prohibiting certain trainings if the order is not withdrawn. They also asked for elucidation on why certain grants were selected, and what statutes support the new funding conditions.