Brown urges court to block federal executive order that challenges diversity, equity programs

Brown and seven other colleges and universities argue that a Sept. 22 executive order from President Trump will regulate speech based on viewpoint and threaten innovative research on health, medicine, technology and more.

PROVIDENCE, R.I. [Brown University] — Brown University and seven other colleges and universities are urging a federal court to block a Sept. 22 executive order issued by President Donald J. Trump aimed at combating “race and sex stereotyping and scapegoating.”

As issued, the order prevents federal contractors, including colleges and universities that receive federal funding, from conducting training on “divisive concepts,” a prohibition that could prevent schools from offering programs focused on diversity, equity and inclusion in particular.

An amicus brief filed on Nov. 23 asserts that the order is unconstitutional, given that foundational principles of First Amendment law prevent the government from regulating speech based on viewpoint. It also threatens federally funded research that provides immense benefits to American innovation and economic development.

“American institutions of higher education are world-renowned precisely because the government has not historically made incursions into the way institutions train their staff, teach their students or carry out their research,” the brief argues. “The executive order, however, attempts to insert the government’s political views, on important and highly contested topics, into the center of amici’s operations.

Executive Order 13950 — “Combating Race and Sex Stereotyping” — “purports to dictate the content of diversity and inclusion trainings that amici, as federal contractors, provide on campus. In so doing, the order violates universities’ First Amendment rights by chilling them from exercising protected speech.”

The brief argues that the order imposes vague and intrusive requirements that would unlawfully force universities to choose between preserving critical trainings and safeguarding their academic freedoms on the one hand, and forgoing needed federal funding for cutting-edge research on the other. 

The amici cite numerous examples of programs and research put at risk by the order and its vague prohibitions, including that an institution receiving federal contracts “shall not use any workplace training that inculcates in its employees any form of race of sex stereotyping or any form of race or sex scapegoating.” Programs on complex issues of race and gender are among those at risk, as is federally funded research in areas spanning science, medicine, public health, engineering, social sciences and many other disciplines, they argue.

In seeking to regulate how “divisive concepts” are explored on college campuses, the order ultimately makes no secret of its assault on academic freedom, the brief argues.

“The order risks chilling the activity that is the very lifeblood of American higher education: the free and unfettered right of institutions to bring professors and students holding myriad viewpoints around a table to debate the hardest questions of our times.”

The amici filed the brief on Monday, Nov. 23, in Santa Cruz Lesbian & Gay Community Center et al. v Trump et. al. in support of the plantiffs’ motion for a preliminary injunction. A federal court hearing on the motion is currently scheduled for Thursday, Dec. 10.

The brief’s signatories include Brown, Boston University, Brandeis University, Dartmouth College, Harvard University, Stanford University, Tufts University and the University of Michigan.

The amicus brief is available on Brown’s Office of General Counsel website.