An action was commenced by the NAACP Legal Defense Fund to enjoin implementation of Trump’s Executive Order prohibiting the federal government, its contractors and grant recipients, from engaging in “diversity training.”
Today, however, many people are pushing a different vision of America that is grounded in hierarchies based on collective social and political identities rather than in the inherent and equal dignity of every person as an individual. This ideology is rooted in the pernicious and false belief that America is an irredeemably racist and sexist country; that some people, simply on account of their race or sex, are oppressors; and that racial and sexual identities are more important than our common status as human beings and Americans.
The gravamen of the suit is that this violates the First Amendment rights of government contractors and grant recipients, such as the named plaintiff, the National Urban League and National Fair Housing Alliance, to train, speak and believe as they choose. The words are never spoken by either Trump or the plaintiffs, but they are at the core of this action: Critical Theory.
1. Every nation’s history includes unsettling truths that many would prefer to forget or deny. But true patriotism demands confronting the truths of our history—no matter how embarrassing or dishonorable—and undertaking the difficult work of learning from the lessons of our past in order to move forward. For the United States, that work requires reckoning with our shameful legacy of racial subjugation of Black people in this country— from slavery and Jim Crow to mass incarceration and police violence—as well as our long history of express discrimination against other people of color, women, and LGBTQ persons.
Many will agree with this assertion, and see it not only as “their truth,” but as a truth that should be wholly uncontroversial. After all, there can be no dispute that slavery happened, that it was a critical aspect of our historical national existence and that its consequences are still present in our society today. But that isn’t the question.
“‘I am a racist and a gatekeeper of white supremacy,’ one professor announced in the town hall’s chat.”
Diversity training goes far beyond requirements that white people state aloud that they are racists, or the white woke performing a ritual washing of the feet of black people. But part of it also includes absolutes, such as the belief that all white people are irredeemably racist and that the first step of proving that one is on the path to being an anti-racist, there being no such thing as a person being “not racist,” requires a confession of racism.
Mind you, you might very well believe that despite your best efforts and intentions, racism lingers in your head and heart, and you might very well decide that you want to say aloud that you are racist. That’s entirely up to you, and there is nothing wrong with making that choice. Indeed, it may be the right and honest choice for you. But you made the choice. No one forced you to do so to keep your job or contract.
2. Without uninhibited discussion and examination of that legacy, we are ill-equipped as a nation to address its ongoing manifestations in present-day forms of discrimination and bias. The First Amendment protection of free speech in the United States Constitution ensures that all Americans are empowered to engage freely in an exchange of ideas, truth-telling, and difficult conversations about this history. This protection extends equally to those who engage with the federal government, where the policies that affect the lives of all Americans are developed, enacted, and funded.
This, too, might strike you as entirely right and uncontroversial. After all, who would dispute our First Amendment right to “engage freely in an exchange of ideas, truth-telling, and difficult conversations about this history”?
The problem, however, is that the first and second paragraphs are in direct conflict. It might be hard to see at first, but the crux of the first paragraph is that these are “truths” that cannot be denied, whereas the crux of the second paragraph is that the Free Speech entitles us to discuss them, which include the right to admit or deny them, or question how and to what extent it denigrates the existence of a nation putatively founded upon tenets of freedom or founded upon discrimination.
5. The right to Free Speech, secured in the First Amendment, is foundational to a free and democratic republic. As stated by the United States Supreme Court, “[i]f there is any fixed
star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Texas v. Johnson, 491 U.S. 397, 415 (1989) (quoting W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)).
The argument by plaintiffs, that the president cannot issue an EO dictating that the plaintiffs and a vast array of others be prohibited from expressing their ideological belief in critical race theory is strong and sound. Its strength doesn’t derive from the correctness of its ideology. Indeed, it would be every bit as strong and sound if they sought to tell the world that the Earth was flat or populated by space aliens. So what’s the problem?
7. EO 13950 presents a false rendering of our Nation’s history by misrepresenting the Founders as inspired by the “belief in the inherent equality of every individual” and “reject[ing] racialized views of America” that “our government ‘was made on the white basis’ ‘by white men, for the benefit of white men.’” It is beyond dispute that, at the time of our Nation’s founding, the Founders embraced a narrative of white supremacy, benefitted economically from the free labor of enslaved Africans, considered enslaved Africans to be three-fifths of a person in the United States Constitution, denied women and people of color the right to vote and other political rights, and passed laws that uniformly and expressly discriminated on the basis of race and sex.
Rather than limit their demand to enjoining the misbegotten Executive Order — at least as far as government contractors and grant recipients are concerned — on basic free speech grounds, the plaintiffs seek to do what they properly argue against by the government, ask the United States District Court for the District of Columbia to hold that their version of history, in all its tacit permutations, is the “truth,” and not merely to hold that the EO violates their First Amendment rights, which it likely does, but to find that their view of history is the one true ideology.