Addressing the effects of racism, past and present, is an important part of any work to end homelessness. The Executive Order on Combatting Race and Sex Stereotyping (EO) broadly misrepresents the work that many people are doing in this area. It ties the hands of agencies and communities as they work to become more active and productive in their efforts to understand the impact of racism on problems and their solutions.
Beyond the broader impact of the EO, the action defines concepts that it finds objectionable, and then specifies the context in which it is prohibited to provide information on these concepts. For more detail, please refer to the full EO.
On September 28, the Office of Management and Budget issued M-20-37, a memorandum to federal agency and department heads. This memorandum purports to set forth steps in implementing the Executive Order. In some respects, however, it appears to go beyond the EO in what is prohibited, and those areas will be noted below.
The EO sets out (in Section 2) certain concepts that it characterizes as “divisive.” The concepts are stated using vague and/or loaded wording that often mischaracterizes the content of training or other programs meant to counteract racism and sexism. These “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”
- Any other form of race or sex stereotyping (“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”)
- Any other form of race or sex scapegoating (“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 similarly 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”)
What the EO Requires
The EO then lays out (Sections 3-10) the requirements and prohibitions around promulgation of the “divisive concepts.”
- Section 3. Prohibits teaching, training or instructing re the concepts in the United States Uniformed Services (not addressed here)
- Section 4. Requires that all government contracts include language prohibiting the contractor from using any training that includes any of the prohibited content; requires similar language in subcontracts; and allows for cancellation of the contract and other enforcement if the contractor violates the provision. The federal agencies are given various prescribed steps to enforce these provisions.
- Under Section 9 of the EO, this requirement only applies to contracts entered into beginning 60 days after the effective date of the EO (i.e., after Nov. 21, 2020).
- Section 5. Requires each federal agency to identify, in a report to OMB, grant programs that it operates in which it would be allowed to require grantees to certify that they will not use federal funds to promote any of the “divisive concepts.” The EO does not specify what OMB is to do with this information, nor does it impose any immediate requirements or prohibitions on federal grantees. The OMB memorandum of September 28, however, goes on to state that training or education programs for a grantee that include the “divisive concepts” may not be billed as an allowable cost under federal grants, unless otherwise allowed by law. The OMB memorandum also clarifies that “cooperative agreements” are subject to the same provisions as grants.
- Section 6. Federal agencies must take steps to ensure that none of the prohibited content is included in training provided to federal employees, including trainings provided by contractors. Unlike the provisions regarding contractors more generally in Section 4, this directive re federal employees takes effect immediately.
- The remainder of the EO describes technical provisions and enforcement mechanisms, including possible debarment of a contractor violating Section 6.