Executive order on combating race and sex stereotyping could chill academic freedom

September 24, 2020

On Tuesday, the President issued an “Executive Order on Combating Race and Sex Stereotyping” that authorizes federal agencies to condition grants they administer on the recipient institution’s certification that it will not use those funds to “promote” interpretations of race and sex stereotypes that the administration deems “divisive.” Institutions of higher education receive grants from several agencies, including the Department of Health and Human Services, the Department of Defense, and the Department of Education. 

With regard to higher education, the most relevant section of the executive order states:

Sec. 5. Requirements for Federal Grants. The heads of all agencies shall review their respective grant programs and identify programs for which the agency may, as a condition of receiving such a grant, require the recipient to certify that it will not use Federal funds to promote the concepts that (a) one race or sex is inherently superior to another race or sex; (b) an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously; (c) an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex; (d) members of one race or sex cannot and should not attempt to treat others without respect to race or sex; (e) an individual’s moral character is necessarily determined by his or her race or sex; (f) 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; (g) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or (h) meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race. Within 60 days of the date of this order, the heads of agencies shall each submit a report to the Director of the Office of Management and Budget (OMB) that lists all grant programs so identified.

As written, the order does not prohibit the use of non-grant funds toward these ends.

FIRE takes no position on the merits or characterization of the arguments identified in the executive order, and we have — and will — continue to object to trainings that violate students’ freedom of conscience by requiring them to agree with the institution’s perspective. 

Yet the chilling effect on academic freedom that will likely result from this order is predictable and troubling. In an inadequate attempt to protect against violations of academic freedom, the executive order states, “Nothing in this order shall be construed to prohibit discussing, as part of a larger course of academic instruction, the divisive concepts listed in [above] in an objective manner and without endorsement.” 

This is better than nothing. But given our experience in the context of Title VI of the Higher Education Act, where some advocacy groups, elected officials, and even the Department of Education have cited the statute’s granting conditions as grounds to pressure institutions into silencing the protected expression of their political adversaries, we are concerned that the executive order invites similar complaints and will ultimately lead to censorship and a narrowing of viewpoints deemed safe to voice on campus. 

Academic freedom allows institutions and instructors to decide for themselves what concepts they wish to teach, in which manner they wish to teach them, and whether or not they wish to “endorse” or “promote” arguments. After all, arriving at a point where one endorses or promotes an argument is a natural component of engaging in argumentation and discussion. Moreover, academic freedom, properly understood, extends beyond “academic instruction” and provides protection for research and extramural discussion, too. 

Academic freedom encompasses what Supreme Court Justice Felix Frankfurter deemed “‘the four essential freedoms’ of a university—to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.” By singling out certain concepts, this executive order invites abuses that could chill discussion of the most hotly contested topics of the day. And the precedent it could set is grim. A future administration could add any number of contentious viewpoints to its own list of opinions that grantees are prohibited from “endorsing” or “promoting” with grant dollars. 

FIRE will be monitoring the implementation of this executive order to prevent and contest any such abuses. If your freedom to research or teach is adversely affected by this order, please get in touch with us. In the meantime, we strongly encourage any agency implementing this executive order to take special precautions to avoid taking action that would threaten academic freedom.