(CN) — A federal judge will ponder whether to award a nationwide injunction preventing the Trump administration from dictating how federal contractors should engage in diversity training.
“I have not decided whether or not I am going to issue an order,” said U.S. District Judge Beth Labson Freeman during a virtual hearing in San Jose federal court Thursday.
Despite being undecided, Labson Freeman singled out aspects of President Donald Trump’s executive order and subsequent briefing provided by U.S. Department of Justice attorneys that she thought may contain potential violations of free speech.
“I think this notion that you can prevent contractors from talking about matters of race or sex outside the context of diversity training, but you can talk about them otherwise … I was actually quite offended by this, I think it’s so wrong,” the judge said.
The dispute stems from an executive order signed by Trump that bars the type of diversity training being conducted throughout the private and public sector that seeks to raise awareness around concepts of white privilege, implicit bias and cultural relativism.
Trump’s order calls such principles “un-American” and says it undermines an emphasis on individual achievement and calls for people to be judged according to their demographic groups.
“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,” the executive order said.
But the Diversity Center of Santa Cruz and other LGBTQ advocacy groups say the executive order’s application to federal contractors illegally demands these groups restrict their speech and in some cases act contrary to the fundamental mission of their organization.
“They say intersectionality can’t be taught, but that is what our clients do,” Douglas Hallward-Driemeier, attorney for the plaintiffs, told Labson Freeman. “They teach the intersections of race, gender and sexual orientation in order to show the systemic biases against the marginalized communities they serve.
Other organizations signing onto the lawsuit include the Los Angeles LGBT Center and the AIDS Foundation of Chicago.
Hallward-Driemeier said one of the sponsors of the AIDS Foundation of Chicago withdrew after becoming concerned they could lose their federal funding if they participated or even sponsored diversity training like the ones outlined in Trump’s order.
The plaintiffs conceded their lawsuit is only focused on federal contractors and that they do not have standing to make the same or similar arguments for federal employees. The question of who constitutes a federal contractor is difficult to parse, Hallward-Driemeier said, but he distinguished between entities that receive procurement contracts and those who carry out duties on behalf of the federal government.
All six organizations listed in the complaint receive federal funding, which comprises a significant portion of the budget, the attorney said.
Labson Freeman said one of the most difficult aspects of crafting an injunction would be deciding to whom it applies.
“Hospitals could be both (a contractor or a vendor),” she said. “Cities and police departments — the federal government spends most of its money by sending it others to carry out their programs for them.”
Arguing for the Trump administration, attorney Zachary Avallone said the plaintiffs have failed to show what they would like to say, but were not allowed to.
“They have not executed a clear plan to violate the order,” he said.
Therefore, their arguments are based on speculation, he said.
Labson Freeman said that judging by the manner in which the various federal agencies sought to implement the executive order, including using keyword searches for contractors, the plaintiffs had a right to be concerned.
“The highest levels of government are applying this executive order and that’s what I have a problem with,” she said.
Labson Freeman said she will rule on whether to award plaintiffs an injunction soon. Avallone indicated the Trump administration would stand ready to appeal should the judge issue an injunction.
A related federal case is pending in the District of Columbia. The NAACP and other civil rights groups sued the Trump administration Nov. 12, saying the order violates free speech and smothers efforts to address sexual and racial discrimination in the federal workplace.
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