Last updated: January 14, 2020
How is the AAMC responding to Executive Order 13950 issued on Sept. 22, 2020?
The AAMC’s President and CEO and Chief Diversity and Inclusion Officer issued a statement expressing concern about the chilling effect of the executive order and the need for diversity training at this time in our country’s history. We are continuing to monitor developments to assess potential impact on our member institutions.
Is the AAMC going to reduce its support for member institutions in their efforts to provide effective diversity and inclusion training?
No, the AAMC is going to continue and increase its support for member institutions in their efforts to provide effective diversity and inclusion training. More education, not less, is needed if we are going to overcome our divisions and achieve equity as a nation.
Whose diversity training is covered by the Sept. 22 executive order?
The Sept. 22 executive order covers diversity training in federal agencies, for federal contractors, and in federally-assisted grant programs.
Does the executive order itself immediately change the terms and conditions of federal grants and federal contracts?
No. By itself, existing terms and conditions of federal grants and contracts remain as they are today. The executive order calls on federal agencies to make changes to grant and contract requirements in the future.
What type of content in diversity training is covered by the executive order’s prohibition?
The executive order identifies the following content as objectionable:
“Divisive concepts” include the following:
- One race or sex is inherently superior to another race or sex.
- The United States is fundamentally racist or sexist.
- An individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
- An individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex.
- Members of one race or sex cannot and should not attempt to treat others without respect to race or sex.
- An individual’s moral character is necessarily determined by his or her race or sex.
- 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.
- Any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex.
- 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.”
How are “race or sex stereotyping” or “race or sex scapegoating” defined?
“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.
“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 also 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.
Is the executive order legal?
The executive order is currently being challenged in several lawsuits. On December 22, 2020, in a case filed by the Santa Cruz Lesbian & Gay Community Center and others, a U.S. District Judge in California ruled that the executive order violates the First Amendment and the Due Process Clause and issued a nationwide preliminary injunction, barring implementation of Executive Order 13950 as it relates to Federal contractors and grantees.
If implemented, what is the potential impact on AAMC-member institutions that receive federal grants?
Federal agencies are to submit a list of covered grant programs to the Office of Management and Budget (OMB) within 60 days of the executive order. For member institutions, the potential impact is that the institution would be required to sign a certification (timing uncertain) that they will not use federal funds to promote the enumerated “divisive concepts.” If determined to be out of compliance, grantees are subject to the same process for disallowed grant costs and suspension/debarment as with any other federal grant.
If implemented, what is the potential impact on member institutions that are federal contractors?
For contractors, the prohibition relating to “divisive concepts” goes beyond the use of federal funds. For member institutions that receive federal contracts, the terms and conditions of their contracts beginning Nov. 23, 2020, could include a prohibition on any workplace training — whether or not funded by federal funds — that promotes the enumerated “divisive concepts.” They would also be required to include the prohibition in subcontracts, notify labor unions, and post that notice for employees and job applicants. Sanctions for noncompliance include contract termination and debarment.
If implemented, what is the potential impact on member institutions that are federal agencies?
Federal agencies must ensure that they (and their contractors) do not promote the enumerated “divisive concepts,” including by making compliance a requirement in all agency contracts for diversity training. Each federal agency is to assign a senior political appointee with responsibility for ensuring compliance and must clear its diversity and inclusion training program with the OMB. Within 90 days, federal agencies are to report to the OMB all spending in fiscal year 2020 on employee training programs relating to diversity and inclusion, including specific amounts paid to individual contractors.
How can I tell if the executive order applies to my program or institution?
To assess institution- or program-specific application, you should consult with your institution’s grants/contracts/legal office.
How does the executive order deal with academic environments?
The executive order says that it does not cover discussions about the enumerated “divisive concepts” if they are part of a “larger course of academic instruction” and presented in an “objective manner and without endorsement.” You should consult with your institution’s legal counsel as to whether this exception applies to your program.
What is the timing for implementation by affected institution?
Federal grantees will be subject to the prohibitions once their grants are amended or when they are awarded new grants that include the prohibitions. Federal grant-making agencies have 60 days to provide a list of affected grant programs to the OMB, so it is likely several months before any change would be implemented for a federal grantee.
The executive order’s prohibitions apply only to new contracts issued no earlier than Nov. 23, 2020.
For federal agency employee training programs, the prohibitions take effect immediately.
What does OMB’s memorandum dated September 28, 2020 say about next steps?
M-20-37 mostly covers restrictions relating to diversity training provided to Federal agency employees. It also gives Federal grant awarding agencies until November 20, 2020, to provide OMB a list of agency-funded programs covered by the executive order.
What do OFCCP’s FAQs, released on October 7, 2020, say about next steps?
OFCCP states that Executive Order 13950 will apply to contracts entered into on or after November 1, 2020, and that, effective immediately, it will also investigate complaints about “sex and race stereotyping” under its pre-existing existing authority under Executive Order 11246 (Equal Employment Opportunity, Federal Contractors and Subcontractors, first issued in 1965) to enforce long-standing requirements on federal contractors to treat employees without regard to race or sex, among other protected categories.
What do OFCCP’s October 7, 2020, FAQS say about implicit bias/unconscious bias training?
OFCCP states that training is prohibited to the extent it teaches or implies that an individual, by virtue of their race, sex, and/or national origin, is racist, sexist, oppressive, or biased, whether consciously or unconsciously. However, training is not prohibited if it is designed to inform workers, or foster discussion, about preconceptions, opinions, or stereotypes that people—regardless of their race or sex—may have regarding people who are different, which could influence a worker’s conduct or speech and be perceived by others as offensive.
What does OFCCP’s Request for Information dated October 22, 2020 do?
The RFI invites Federal contractors, on a voluntary basis, to provide information or materials about Federal contractor workplace training that involve the concepts noted as “divisive.”
The RFI invites Federal contractors with questions about compliance to submit their materials to OFCCP to obtain assistance in achieving compliance.
The RFI provides information about a hotline OFCCP has set up to receive information about “unlawful use of racist or sexist training materials.”
OFCCP states that training is not prohibited if it is designed to inform workers or foster discussion “about pre-conceptions, opinions, or stereotypes that people – regardless of their race or sex – may have regarding people who are different, which could influence a worker’s conduct or speech and be perceived by others as offensive.”