Perspectives on the Executive Order on Combating Race and Sex Stereotyping

The following message was shared via email on Oct. 23.

Dear Faculty and Staff:

I write as a follow-up to yesterday’s message from Chancellor Malatras about the Executive Order on “Combating Race and Sex Stereotyping” that President Trump issued, and today’s message from New Paltz faculty on this topic.

As one of 64 Chief Diversity Officers in the SUNY system, I appreciate the opportunity to address such issues within a network of professionals dedicated to the work of Diversity, Equity and Inclusion. I also appreciate that Chancellor Malatras and other SUNY leadership supports this work and is willing to come forward with a statement like the one that President Christian, myself, other campus leaders, and some of you have signed. We find the Executive Order (EO) offensive, and strongly counter to our campus goals and values of fairness, equity, and inclusion, and the recognition that realizing those values demands hard and sometimes discomforting work and collaboration across the institution. As noted in the SUNY statement, the EO is unwarranted, illegitimate overreach.

SUNY’s response was carefully vetted with SUNY legal counsel because of the potential risk of losing federal funding for SUNY and critical financial aid for our students. Certainly any individual campus action carries that same risk along with others. The EO, should it stand, may require changes in the way employment training is provided. But, as outlined below, it does not appear to impact academic work within the content areas known as “divisive topics.” SUNY New Paltz campus leaders are committed to our strong tradition of protecting academic freedom of our faculty.

Divisive Topics within Employee Training

The EO primarily addresses the use of “divisive topics” within required employee training for those who are federal contractors. Generally, any organization that receives federal funding is considered a federal contractor, although the order specifically defines some federal contractors to whom this order applies. Although penalties for “violations” of the EO are not clear, they could include disbarment from participating in federally funded programs (such as grants) or the suspension of federal funds used to support the institution. This could include financial aid funds allocated to support students.

The EO still allows covered entities to “foster environments devoid of hostility grounded in race, sex, and other federally protected characteristics. Training employees to create an inclusive workplace is appropriate and beneficial. The Federal Government is, and must always be, committed to the fair and equal treatment of all individuals before the law.” Further, “training that will foster a workplace that is respectful of all employees” may be continued and covered entities are not prevented from “promoting racial, cultural, or ethnic diversity or inclusiveness, provided such efforts are consistent with the requirements of” the EO.

Human Resources professionals and Diversity Officers, under whose direction such employment trainings typically fall, have not been told to cease such trainings but have been advised to review content in light of the EO. We are considering this guidance as we plan the possible continuation of our employee training during January, regrettably almost certain to be virtual.

Impacts and Implications

The broad generality of the EO has already begun to have an unfortunate chilling effect on organizations, especially colleges and universities. This EO is arguably inconsistent with prior EOs, calling for the Free Inquiry, Transparency, and Accountability at Colleges and Universities, as well as the Department of Education’s recently issued Regulations to protect free inquiry. That EO called on public and private colleges to “foster environments that promote open, intellectually engaging, and diverse debate, including through compliance with the First Amendment to the U.S. Constitution for public institutions and compliance with stated institutional policies regarding freedom of speech, including academic freedom, for private institutions.” You may be aware that another SUNY campus is under federal scrutiny as a result of actions perceived to be counter to that EO.

Academic Work and Academic Freedom

The EO provides a small stipulation for academic work that speaks to the tenets of academic freedom in that such “divisive concepts” may be taught within the course of larger study. There does not seem to be a specific mandate on prohibition of academic research into or curriculum that teaches or discusses these concepts. The college continues to support this critical work and the primary purview and responsibility of faculty to determine academic content and methodology. One of the chilling effects is that faculty around the country are worried about personal causes of action against them. There is no history supporting personal lawsuit or employment action as a result of violating an EO so no individual would face personal legal liability for engaging in these prohibited activities. The institution suspected of violating the EO may be subject to Inspector General review and adjudication if a complaint is raised.

Where We Stand 

The EO was discussed briefly in a recent SUNY New Paltz Diversity and Inclusion Council meeting, even as there is little guidance on full implementation or enforcement of the EO. It is anticipated that the EO will face legal challenges that would have an impact on full implementation. A change in federal leadership would also likely affect implementation of this and EO along with other federal regulations on Title IX implementation, oversight of for-profit institutions, and student financial aid.

This topic will be monitored by SUNY, the network of 64 Chief Diversity Officers across the system, and campus leaders. As an employer and an academic institution that is part of a state system, our campus leadership remains engaged in this issue and will implement any guidance provided to campuses. Any changes or impact of this EO on our campus will be shared with the campus community.

Tanhena Pacheco Dunn,
Associate VP for Human Resources, Diversity & Inclusion and Chief Diversity Officer