24 November 2020

Information about Executive Order 13950

Kelsie Krafton

Kelsie Krafton

Executive Order 13950, “Combating Race and Sex Stereotyping” (EO) issued on 22 September, applies to federal agencies, federal contractors, and federal grant recipients. This EO is designed to prevent and punish the recognition of structuralisms and societal issues that create inequities in our society and additional burdens for certain people. Job postings, employment contracts, and public statements can all be checked for noncompliance. Noncompliance could result in investigation, termination of grants, and suspension from doing business with the federal government.

If you or your employer receives federal funding or has federal contracts, this EO applies to you. There could be exemptions incoming from the Labor Department, but this is very unlikely. The EO invites the Attorney General to give guidance on whether employee training that contains diversity, equity, and inclusion (DEI) content creates a hostile work environment, allowing employees to file suit claiming violation of federal employment law. The Attorney General has not given this guidance. However, the EO itself is an invitation for disgruntled employees to file claims and they do not have to wait for the Attorney General’s guidance. There is a hotline to report infractions that had already received over 60 calls at the beginning of November. This EO does not change the legal definition of a hostile work environment. Although reports can still be filed and investigations are undertaken, the likelihood of the current administration successfully completing an investigation and being able to take action is minimal. The administration has yet to provide clear definitions suitable to gauge whether any given training is or is not in compliance. The EO is so ambiguous that the NAACP Legal Defense Fund (LDF) has filed a lawsuit in Washington, DC to challenge the EO as contrary to the first amendment and unconstitutionally vague. This lawsuit will help motivate the incoming Biden administration to promptly eliminate the EO.

For the AAS as a member society that receives National Science Foundation funding, this EO applies to our employees, not the AAS membership. AAS policy staff have been attending meetings to discuss the fallout and response to this EO. The AAS leadership, staff, and legal counsel have decided that as an organization/society we will proceed as we did before the EO and continue to maintain our commitment to diversity, equity, and inclusion.

The AAS endorsed and signed on to a letter, led by the American Institute of Physics, to Russell Vought, Director of the Office of Management and Budget (OMB), asking that “the Administration to rescind its elimination of federal employee training programs related to diversity, equity, and inclusion as specified in the Memorandum for the Heads of Executive Departments and Agencies issued September 4th, 2020 and the September 22nd Executive Order on Combating Race and Sex Stereotyping.” We will continue advocating for the swift recission of this EO to the incoming Biden-Harris administration. That leaves a two-month period, starting when the federal agencies report which programs should be covered by the EO to the OMB on 21 November. The general guidance, because of a Biden victory, is to not enter into grants or contracts on or after 21 November, but to wait for the executive to be rescinded in about 60 days. We understand this is not a financially viable option for many people and institutions. During this time, our members who are federal employees and work at federal facilities should follow the guidance of their workplace as should our members at academic institutions as your institutions will each have different risk-tolerances for responding to this EO. As of the writing of this post, we have not seen any publicly available information from the agencies or OMB on which grant programs were named on 21 November, but we will let the AAS membership know when there are any updates.

Federal Contracts

The EO includes specific language about employee training for federal contract recipients, but not for federal grant recipients. The EO prohibits a list of diversity training content in employee trainings but is unclear about whether this applies only to work directly stated in the contract or if it applies to the employee or institution that holds contract and thus their activities that would otherwise be unrelated to the contract. Contracts that start or are extended (including no-cost extensions) on or after 21 November will be impacted. Existing, unchanged contracts should not be affected, but this is ambiguous. Agencies should not mention the EO’s provisions in contracts before 21 November. This section of the EO applies to employees, but it is unclear if it applies to volunteer staff.

Federal Grants

This part of the EO is directed at the federal agencies. On 21 November, the federal agencies had to identify grant programs to the OMB which could include conditions to certify the grantee won’t use federal funds to promote “divisive concepts” like discussing racism and sexism. The grant provisions were not spelled out in the EO itself, as the contract provisions were, but probably will be like those for contracts. These in-grant provisions should only apply to grants amended or issued after the EO changes have been implemented, but there is a possibility for a provision that says they can retroactively apply the new terms. Grant programs created to address DEI wouldn’t be shut down by this EO, but future executive orders could. As of the writing of this post, we have not seen any publicly available information from the agencies or OMB on which grant programs were named on 21 November. We will let the AAS membership know of any updates.

Academic Institutions

The EO applies to federally funded institutions and organizations. There is a provision in the EO that permits the instruction of DEI concepts as part of a larger course and without endorsement. This is unconstitutional and violates statutes that prohibit involvement in curriculum content, but the LDF lawsuit doesn’t cite this provision. There will be an opportunity for amicus briefs, and the AAS plans to participate.

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