By Steve Kelman

Blog archive

Here we go again: 'diversity training' and government contractors

gears and money (zaozaa19/Shutterstock.com)

When I was in government a long time ago, back during the Clinton administration, some of the worst experiences I had in what generally was a super job was dealing with efforts by the political people in the West Wing to use the government contracting system to promote Democratic Party goals using executive orders.

These issues generally involved unions. The officials wanted to use “the enormous power of government purchasing” to promote organized labor, often by not buying products made by companies that had “bad” labor practices that the unions didn’t like but were not prohibited by law.

I decided to speak up internally against these proposals. My argument was that we should use the enormous power of government purchasing to get a good deal for the government, and that additional requirements that apply only to government contracting would complicate that goal. Since companies could avoid these requirements by not dealing with the government, weaving political goals into acquisition inhibited our efforts to attract more predominantly commercial firms into the government marketplace.

With the help of Vice President Al Gore, many of these ideas were stopped or diluted – he was a real supporter inside the West Wing of good government. One of the biggest fights I had took place in the months before I left the government; I heard at the time that my opponents were eagerly waiting for me to leave so they could get their idea through. I didn’t speak publicly or go to the media about all this at the time, but with the passage of 25 years (even I have forgotten some of the details) I am mentioning it now.

Unfortunately, these efforts continued and even increased during the Obama administration (when I was back at Harvard and could complain only through my blog), again using executive orders to prohibit purchases of products made by companies that advocates thought were doing bad things.

As a result of these experiences, I came to associate efforts to hijack the procurement system for goals other than a good deal for the government with my own political party, the Democrats.

So maybe I feel a certain guilty pleasure in seeing this idea embraced, in an unusually crude form, by President Donald Trump in his recent executive order banning diversity training in government or companies that speaks of “systematic racism” or ”white privilege,” or suggests the U.S. is a racist society.

I am not going to enter into a discussion about the merits or demerits of the order itself. But the order is an unusually strong intervention -- not just in what goes on inside government but also in the private economy. It prohibits employers from teaching prohibited training material to their own employees. Beyond that, it actually threatens federal contractors with the very harsh penalty of debarment (a ban on the government doing any business with a company – usually associated with major fraud against the government) for giving such training to their employees, even for work not on federal contracts.

In other words, the executive order is using the procurement system to create special penalties for government contractors. Of all the possible reasons to debar a federal contractor, this must be far down the list; it is punishing contractors for a thought crime. I am virtually certain that language such as this has never been used before. It sets a precedent for a terrible way to use the procurement system as a punishment.

In a blog post, Jason Oxman, CEO of the Information Technology Industry Council, took strong aim at the executive order. "Fostering inclusion for individuals from historically marginalized communities is one of the core values of ITI and the greater tech industry. We know our industry has a long way to go in terms of addressing the harms of systemic racism. However, at a time when Americans are seeking racial justice more than ever, this EO instead attacks our broadly shared values and risks undoing real progress toward building racial equity in the tech industry and America writ large."

Beyond that, Oxman attacked the unprecedented use of contract debarment for violation of the executive order, even for actions not related to contracts with the government.

Among other things, this executive order is the equivalent of using an atomic weapon to swat a fly. It turns out that, even if training on these concepts were problematic and the penalties not totally disproportionate, the dollars spent on training mentioning the words “systematic racism” or “white privilege” is infinitesimal. This action is yet the latest example of government by executive order bluster in which the administration has specialized.

Posted by Steve Kelman on Oct 02, 2020 at 6:25 AM


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