It’s virtually certain that a Biden administration will not maintain President Trump’s executive order that was issued in response to using Critical Race Theory in employee training circumstances in federal agencies and contractors (“Executive Order on Combating Race and Sex Stereotyping”). I think that, if anything, can be assumed with very high confidence. There are a number of important points to make about this issue, then. I want to list four important points about the order, the ideas it contains, and the environment we find ourselves in around it.
- it offers no protection at the state level (or local), which is needed;
- it is incomplete in one important regard—neglecting other factors of identity besides race and sex;
- we’ve been systematically misled, if not lied to, about it ever since it was issued; and
- those who wish to overturn it—including university presidents, provosts, and departments, prominent journalists, and many Democratic politicians, plausibly to include Joe Biden and his administration relatively soon—must be held to account for this desire in the terms of the executive order itself, not in made-up terms that don’t apply to the situation.
Awareness and action are required on all four of these domains.
Whether or not the Biden administration maintains this executive order or not, its protections apply only to federal-level agencies and contractors and therefore do not apply to state agencies and contractors. Indeed, I’ve been asked about this repeatedly since the order was issued in September 2020: “I work for the state of [say, California]; does President Trump’s order apply for my job?” The answer is usually “no.” This is an obvious problem.
Regardless of what is happening at the federal level, our state (and city) employees need the same protection that our federal employees gained from the order, which protects from being forced into workplace training sessions that teach a number of “divisive concepts” (discussed below) and the attendant abuses we’re all becoming familiar with as these wrongheaded, unevidenced trainings have become standard throughout our society. Obviously, this protection is needed even more if Biden’s administration overturns the order at the federal level, both to offer it somewhere and to create the kind of pressure that can make the federal government think a bit harder about its top-down manipulations of employees whose salaries are paid for by taxpayers who may have different positions of conscience on the relevant issues.
Our governors (obviously, mostly Republican) and state legislatures can make up for this pair of problems quite directly—as can our mayors and city councils. Governors can issue their own executive orders mirroring the original federal order, applicable at the state level, and state legislatures can do one better and make the contents of the orders into state law, thus protecting their citizens in an important way. I call upon them directly to do so as soon as possible. If they do, I also recommend they read at least the next section (below) to patch a hole in the existing federal order.
Filling a Hole
The relevant federal executive order is, as will be made clear below, something of a masterpiece in the way it is written, but it presents a significant hole (that I already know is proving troublesome for people who have to deal with the encroaching Critical Theory ideology): race and sex aren’t the only dimensions of “identity” that the Critical Theory activists make use of. That list is quite exhaustive (and exhausting—the famous queer Theorist Judith Butler even referred to it as “that exasperated et cetera” that has to be added to ever list of identity factors within the intersecting ideologies of Critical Social Justice Theory), but at the very least, a properly patched order must include gender, sexuality, and disability status in addition to race and sex.
My recommendation would be that any similar orders issued should tackle the issue of “factors of identity” in a way that covers a wider gamut of possible factors than just race and sex—at the least explicitly naming all of gender, sexuality, and disability status—as off-limits for discrimination, stereotyping, scapegoating, or otherwise applying what the executive order refers to as “divisive concepts” in the context of a mandated workplace training or educational setting that treats the ideas as uncontested facts (rather than the conclusions of a particular theoretical approach).
We’ve Been Lied To
Almost every critical article or statement that has been made about the federal executive order has been misleading in at least one significant way, and the record needs to be set straight. We hear nearly ubiquitously that President Trump issued an executive order that bans “diversity training” or “racial sensitivity training.” We hear from universities that President Trump banned the teaching of Critical Race Theory, which allegedly violates academic freedom, and significant challenges against the order have been issued by a large number of universities and university departments consistent with this claim against it—many openly calling to defy the order (possibly legally, as will be clarified momentarily, making this a publicity stunt).
These statements aren’t just misleading; they’re flatly wrong—they’re lies, at least from anyone who actually bothered to read Section 10 of the order. Since that very pertinent section seems to have been missed, I’ll quote the two relevant subsections here:
Sec. 10. General Provisions. (a) This order does not prevent agencies, the United States Uniformed Services, or contractors from promoting racial, cultural, or ethnic diversity or inclusiveness, provided such efforts are consistent with the requirements of this order.
(b) Nothing in this order shall be construed to prohibit discussing, as part of a larger course of academic instruction, the divisive concepts listed in section 2(a) of this order in an objective manner and without endorsement. (emphasis added)
It is impossible to have read this section of the order and reached the conclusion that it prohibits or bans “diversity training” or “racial sensitivity training.” It only prohibits that subset of those trainings that rely upon the “divisive concepts” outlined in Section 2(a) of the order (discussed further below). As it was recently reported that (Democratic leaders claim that) the executive order put a stop to nearly all federal-level diversity training, the conclusion is that nearly all diversity training is not genuinely “diversity training” but instead something based in the divisive concepts that—I hope we can all agree once we actually look at them (below)—should be banned. We should be asking journalists and (mostly Democratic) politicians who misreported this why they did so, and also (as we’ll discuss in the next section) why they would want these “divisive concepts” being part of responsible diversity and inclusion training in the first place.
We can also see that the “academics” who have claimed that the order violates their academic freedom are misinformed, at best, or lying, as Section 10(b) of the order explicitly says that’s not the case. It is still perfectly permissible under this order to teach the various Critical Theories, including Critical Race Theory, as academic theories, but that must be done “in an objective manner and without endorsement,” i.e., not as though they are statements of uncontested facts or undisputed “truths” about the world. It’s frankly shocking that our academics would be this confused about such a plain and clear statement that maintains their academic freedom, unless it’s that they just failed to do their basic due diligence in reading the order that they’re so vigorously condemning in terms that don’t even apply.
The relevant executive order—and spin-off orders issued or passed into law at the state or local level—does not limit academic freedom or the ability to conduct diversity and inclusion activities (including trainings). It has been a gross abnegation of duty on the part of our journalists, academics, and (mostly Democratic) politicians to have said, plainly and repeatedly, otherwise. They should be asked why, and they should be pressed further on why they would want to challenge the order, or ones like it, in the first place.
Proponents Must Want Division
Again, as I have read the executive order several times, I’m perplexed as to why any American or reasonable and decent human being living in the twenty-first century would want it overturned. Since many do, since presumably a Biden administration will as well, and since I try not to assume people are as evil as they often sound in ignorance, I have to assume the executive order has not been widely or properly read. Nevertheless, as we can see from Section 10 above, the order only prohibits applying the “divisive concepts” listed in Section 2(a) and then only in particular ways. It’s therefore important for us to look at these concepts directly from the order and evaluate them.
Before listing them, with commentary, I want to stress why we need to be familiar with what the executive order says. It’s very simple. Anyone who wants to overturn this executive order or resist creating copycat orders at the state (or city) level must want to leave room to engage in at least one of the behaviors it prohibits. The questions are “which ones?” and “why?”
Here is the list of prohibited “divisive concepts” given in Section 2(a) of the executive order, with my own commentary added in italics in square brackets added to most of them:
(1) one race or sex is inherently superior to another race or sex [outright bigotry or supremacy—note that this also prohibits white supremacy, patriarchy, (homophobia, ableism, exasperated etc.)];
(2) the United States is fundamentally racist or sexist [i.e., “systemic” bigotry/oppression];
(3) an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously [even by “complicity,” like “white complicity” or “brown complicity”];
(4) an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;
(5) members of one race or sex cannot and should not attempt to treat others without respect to race or sex [this is a repudiation of identity-blindness, e.g., colorblindness, and seeks to make identity, like race, relevant and central to all interactions and phenomena];
(6) an individual’s moral character is necessarily determined by his or her race or sex [direct rejection of Martin Luther King’s “I Have a Dream” perspective];
(7) 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 [a kind of identity-based “sins of the father” and guilt by association];
(8) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex [believe it or not, this kind of thing is advocated under Critical Theories of identity (Critical Social Justice) under models like “the pedagogy of discomfort”)]; or
(9) meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race [this ideology rejects meritocracy].
The term “divisive concepts” also includes any other form of race or sex stereotyping or any other form of race or sex scapegoating.
Anyone who is calling for this order to be overturned or who is arguing against passing it into law, both on the federal level or, hopefully, on the state levels, must be held to account on this point: they must want to leave room to engage in at least one of the eleven things listed above. We have to ask them which ones and why.
If you find someone who is against this order or similar, ask them what it is they disagree with. Have then be specific—which “divisive tenets” do you want to engage in and why? Ask them:
Do you want to claim that certain identities are inherently superior to others? If so, why?
Do you want to claim that the United States is fundamentally bigoted? If so, why?
Do you want to claim that certain individuals—because of who they happen to be in terms of identity factors like race, sex, (gender, sexuality, disability, exasperated etc.)—are intrinsically bigoted or complicit in bigotry? If so, why?
Do you think that people should be discriminated against or receive adverse treatment because of factors of identity? If so, why?
Do you think that people should have to treat people according to their identities instead of as equals? If so, why?
Do you believe that people’s moral character is in some way determined by who they happen to be? If so, why?
Do you believe that people should be held morally responsible for things that were done by other people who happen to have the same identity factors that they do? If so, why?
Do you think that people should be made to feel uncomfortable (or in anguish!) over factors of their identity? If so, why?
Do you want to say that merit was not a significant, if not the, determining factor in how people came to occupy the professional positions they occupy? If so, why?
Do you wish to engage in identity-based stereotyping of some other kind? If so, why?
Do you wish to engage in identity-based scapegoating of some other kind? If so, why?
These questions must be asked clearly and repeatedly of anyone who condemns this executive order, calls to have it overturned, or resists attempts to bring it fully legislatively into law at the federal or, via copycat orders and legislation, state (or local) levels. They must want to leave room for at least one of these, and the should be able to articulate which ones and why, and they must be held to account on the point every single time it comes up. Should they only want to engage in a small number of these and repudiate the others—as they definitely should—they should be pressured to support the passage of similar or amended orders or legislation that offer the maximal amount of protection against the mainlining of these “divisive concepts” in our taxpayer-funded workplaces.
Again, this isn’t a mere think-piece. It is a call to action. While it would be ideal that this order is maintained at the federal level until it can be passed into law by Congress (which would merely strengthen the Civil Rights Acts), these protections are needed just as explicitly at the state (and even local) level as well. Our state governors, state legislatures, and even mayors and city councils should take action on this immediately and should be vigorously held to account, as noted above, if they resist or refuse. When they do, they should patch the hole in the federal order by including other factors of identity, at the least including gender, sexuality, and disability status. Meanwhile, we should be holding our professionals—academics, journalists, and politicians (especially Democratic ones)—to account for why we have been and are still being misled about this order. We deserve answers about why they have got this issue so wrong (laziness or malfeasance?), and we have to start asking for them as often as necessary.
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