In Trump’s Lame Duck Period, Nonprofits Still Face “Chaotic” Effect of His Orders

Nonprofits struggle to understand how to respond to the ban on “divisive concepts” in their training and protect their federal funding.

Person at a protest wears a shirt that says, "Acknowledge your privilege"
Photo by Doug Turetsky via Flickr, CC by-nc-nd

When President Trump issued an executive order in September imposing restrictions on racial equity trainings, federal contractors and grantees covered by the order reacted with a mix of dismay, confusion, fear, and anger.

Organizations that provide affordable housing and homeless services struggled to understand the document and what they needed to do to avoid losing federal funding. The National Fair Housing Alliance and two other civil rights groups filed a class-action lawsuit seeking to block the order, saying it amounted to “chillingly punitive” censorship.

“It’s absolutely reprehensible,” says an executive at one HUD technical assistance provider. She spoke on condition that her name and organization not be identified, out of fear of retaliation by federal funding agencies. “We need to be doubling down on the factors that are exacerbating racial disparities and homelessness. To interfere in that work in any way—it’s a complete travesty.”

Some federal agencies such as the departments of State, Justice, and Veterans Affairs have suspended diversity and inclusion training programs while they reviewed their content, as did many companies and universities. Housing justice organizations responded more slowly as they waited to see whether former Vice President Joe Biden would win the election, which would augur the order’s reversal in January, says Eric Tars, legal director at the National Homelessness Law Center in Washington, D.C.

But a subsequent Office of Management and Budget memorandum set a Nov. 20 deadline for federal agencies to identify contractor programs subject to the order’s restrictions, and Tars says organizations started receiving notices from HUD asking if they were conducting any such activities. HUD technical assistance (TA) providers began questioning how they should handle the order’s requirements as they applied for grant renewals that are essential to their continued operation.

“I know of at least two organizations where it’s at least forced conversations and altered some plans,” Tars says.

TA providers that receive most of their funding from the federal government are particularly vulnerable to having contracts pulled back, so they are taking extra care to avoid activities that could violate Trump’s order, says Ann Oliva, senior fellow at the Center on Budget and Policy Priorities and the former deputy assistant secretary for special needs at HUD. These organizations provide agency-approved tools and support for HUD funding recipients such as local government agencies, public housing authorities, tribes, nonprofits, and community-wide homelessness programs.

“There are folks who are definitely putting this work on hold until January. Maybe they were putting it on hold indefinitely, until [the election occurred]. That’s happening in some places,” Oliva says.

With Biden’s election, the order will probably end up having only minor practical effects, the TA executive said. But in the meantime, providers are scrambling to protect themselves by trying to interpret the order’s ambiguous language and adjust their programs accordingly.

“It diverts us from the work we need to be doing to do our mission, and the work we need to be doing to address COVID, which is having a really significant impact on our organization,” she says. “It’s very chaos-creating, and frankly given the timeline of how this is playing out, that’s probably the most significant impact of it at this point.”

Censoring “Divisive Concepts”

The executive order (EO) is apparently rooted in the work of Christopher Rufo, a conservative filmmaker and activist who has criticized anti-racism trainings for government employees. He spoke on a Fox News show in early September and the White House issued the order about two weeks later, saying it was meant to “to combat offensive and anti-American race and sex stereotyping and scapegoating.” The EO argues that some racial-bias trainings are racist and sexist against white men, and it criticizes training materials that describe white privilege as a basic element of American society.

The section on government contractors forbids them to conduct trainings that promote any of several “divisive concepts.” These include the idea that white people are unconsciously racist; that “color-blind” attitudes should be avoided; that anybody should feel “discomfort” on account of his or her race or sex; and that meritocracy is racist or sexist. The order asserts that any contractor that does not comply could have contracts canceled and become ineligible for future contracts.

The EO still permits discussions of racial equity, with one section saying it is not meant to prevent agencies or contractors “from promoting racial, cultural, or ethnic diversity or inclusiveness.” It says inclusiveness training is “appropriate and beneficial” and it allows “academic” instruction about otherwise-banned concepts like white privilege. A Department of Labor official later clarified that unconscious bias trainings are still allowed, as long as they don’t focus on particular races or a particular sex, as trainings on white privilege were said to do.

Nonetheless, in addition to its hostility to racial equity concerns, the EO’s language creates both legal and implementation problems, Tars says.

“It’s so vague. It’s dependent on the ear of the beholder, whether or not it makes them feel ‘uncomfortable’—which in large part is the point of many of these trainings, which is to make folks sit with their discomfort and think about it,” he says.

Like other Trump administration actions, the order uses coded terms like “inculcation” and “scapegoat,” conflicts with long-held government practices, and appeared at a politically sensitive moment—in this case, in the midst of widespread protests against police killings of Black people and six weeks before the presidential election.

“It’s very obvious that promoting and defending white supremacy, stoking racial tensions and racism, was an election strategy,” says Brittani Manzo, director of public policy at the National Innovation Service, a New York organization that works to promote racial equity in housing and other services.

“With many of these gestures it’s very hard to determine whether it’s actually intended as a sincere policy proposal or it’s just a political tool to whip up the base and create a further divide between urban and rural populations,” Tars says.

Still, contractors and grant recipients working on housing and homelessness issues have no choice but to take the order seriously.

The EO caused “quite an uproar within the field,” says one consultant who gives trainings on racial equity and other topics to a variety of service providers. She too spoke on condition that her name not be used. “People are trying to figure out, ‘OK, so if I’m getting federal funds, does this mean I can’t talk about this?’

“Over the last four years or so, folks within the homelessness sector have really been trying to grapple with and challenge themselves around the disproportionate number of Black and Indigenous folks and people of color that are homeless, and really trying to reckon with what can be done. There’s been a lot of trainings and coaching and people helping to think through systems change. So to get something like this—it slows down progress, and then many people see it just as a way of censoring what people can say,” she says.

The Trump administration set up a phone hotline for people to report potential violations of the order, a step that Tars called “Orwellian.” The consultant said the hotline has amplified the EO’s chilling effect, particularly at a time when the pandemic has forced trainings and conferences to be held online.

“The trepidation that folks have, especially now that everything is via Zoom, is that you don’t know who may be recording what you’re saying. You can send out invitations and think you can have a limited (audience), but this is the digital age. You don’t know if someone didn’t appreciate something you said, forwarded it to a friend of theirs and it ends up on the hotline. Each time you do this work, via video, where sometimes you don’t even see all the people, you’re taking a leap of faith,” she says.

Yet continuing such trainings is essential if providers are to reach the full range of individuals who need help, the executive at the HUD technical assistance provider said. The programs not only teach people working in the field to recognize and overcome their personal biases, but also enable them to identify flaws in their operations that leave certain populations, such as people of color and LGBTQ people, underserved.

“A really, really basic example of that is, what’s the language availability? Or, how are you targeting outreach? Do you have disparities in who’s even showing up at your service system in the first place, and if so, why? People from one culture who are running a system might be making assumption about where people are accessing and how people find out about resource availability. It can be very institutionalized in systems,” she says.

Skirting Restrictions

As federal contractors and grantees wait out the remainder of Trump’s term, they have a few options for managing the EO’s requirements. A tip sheet developed by the National Homelessness Law Center (NHLC) notes the order only covers contracts with a special added clause that are signed on or after Nov. 21. It does not apply to previously signed contracts, according to the NHLC interpretation. Grants and cooperative agreements do not need the clause, but they should have been exempt from any new requirements until Nov. 21.

If necessary, trainings can be structured as discussion forums rather than “inculcation.” In discussions of unconscious bias or systemic racism, participants should be careful not to attribute them to all white people or all men, or to attribute bias to race or gender. They should avoid terms the EO specifically seeks to prohibit, such as critical race theory, white guilt, and white fragility, the NHLC advises.

Manzo says diversity training funded with state or private dollars is not covered by the executive order, and organizations could switch over to those alternate funding sources if they are available. Tars, however, was concerned that an organization that was publicly sanctioned by the government for violating the order could face challenges finding private funds.

The necessity for these precautions, and the larger impact of the executive order, will depend in part on the administration’s actions in the weeks remaining until President-elect Biden’s inauguration, Manzo and others say.

“There are questions of how far they will go in implementing it, whether it continues to be a post-election priority,” she says. “It certainly has the potential to have significant impact on the work within the field to promote and pursue racial equity and racial justice. So it’s not just a political tactic.”

“Unless there is specific attention to it, which I hope there would be, there is a chance they are going to revise things right on their way out the door,” Tars says. “If folks aren’t watching carefully, then those grant conditions could continue sneaking out the door, and even if they aren’t intended to be enforced by the next administration, it could still do some damage and cause some confusion.”

Tars says a bigger danger is that the administration’s effort to label anti-racism as unpatriotic or un-American—and, by extension, to label racism as American—will empower racist voices in the future and make it harder to do racial-equality work.

Advocates described the executive order as the latest of several administrative actions that run counter to the aims of housing justice providers. Those include the rescinding of an anti-segregation rule, the Affirmatively Furthering Fair Housing provision of the Fair Housing Act, and an attempt to modify the Equal Access Rule so sex-segregated homeless shelters can discriminate against transgender people. Trump also appointed Robert Marbut, who opposes Housing First strategies and favors coercive approaches to homelessness, as head of the U.S. Interagency Council on Homelessness.

At the same time, Manzo said, people in the housing and homelessness field have spent four difficult years building an “affirmative vision” of housing justice that not only counters the hostility of the Trump administration but posits housing as a human right to be promoted regardless of who occupies the White House. That vision will pay new dividends once Trump is out of office, she said.

“We have a lot of hurdles in our way, but nothing helps people coalesce like challenges like this. It’s given us time to really work on what we want to see in the world,” she says. “I hope that, while we’re being held back from progress in this moment, we’ll actually be sprinting toward the future with a new vision.”

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