Trump Administration Removes Federal Ban on Segregated Facilities in Contractor Agreements

In a significant policy shift, the Trump administration has eliminated a long-standing federal provision prohibiting contractors from maintaining segregated facilities, including restaurants, waiting rooms, and drinking fountains. This change, implemented through an executive order on diversity, equity, and inclusion, reverses a nondiscrimination measure established during the civil rights era.

The provision, originally introduced in 1965 under President Lyndon B. Johnson, was part of the Federal Acquisition Regulation (FAR). Specifically, Clause 52.222-21, titled "Prohibition of Segregated Facilities," required federal contractors to ensure their establishments remained free from segregation based on race, color, religion, sex, sexual orientation, gender identity, or national origin. The removal of this clause has sparked debate over its implications.

The Executive Order and Its Impact

The General Services Administration (GSA) issued a public memo last month detailing the change, affecting all civil federal agencies. The memo states that the decision aligns with President Trump’s executive order aimed at restructuring diversity policies within the federal government. In addition to rescinding nondiscrimination provisions for federal contractors, the order also addresses regulations concerning gender identity.

Although federal and state laws, including the Civil Rights Act of 1964, still prohibit segregation and discrimination, legal experts argue that the removal of the explicit ban is highly symbolic. Melissa Murray, a constitutional law professor at New York University, emphasized the significance of this decision, stating, "These provisions were essential in ensuring that federal contractors adhered to civil rights laws and contributed to workplace integration in the mid-20th century. The removal of these requirements sends a powerful message."

Immediate Implementation Without Public Notice

A key concern surrounding this policy change is the manner in which it was enacted. Normally, regulatory changes of this nature undergo a public notice and comment period lasting 45 to 90 days. However, this modification was introduced without such a process, a practice typically reserved for national emergencies. A federal worker involved in contract oversight described the implementation as "subverting democracy," as it bypassed standard procedures meant to ensure transparency and accountability.

Multiple federal agencies, including the Departments of Defense, Commerce, and Homeland Security, have already notified personnel handling contracts to implement the changes. A recent notice from the National Institutes of Health confirmed that the alteration is now in effect, stating that compliance with the prohibition on segregated facilities will no longer be required in contract considerations.

Historical and Legal Context

The elimination of this clause follows a broader trend of policy reversals under the Trump administration, particularly concerning diversity and inclusion measures. Legal experts suggest that the provision may have been targeted due to its revision under the Obama administration, which expanded its protections to include gender identity. Rather than selectively removing the gender identity component, the administration opted to eliminate the entire clause.

Kara Sacilotto, a federal contract attorney, noted that the revision aligns with Trump’s broader policy agenda, which has sought to rescind executive orders from previous administrations related to nondiscrimination and workplace diversity.

Broader Implications

Despite federal laws prohibiting segregation, civil rights advocates caution that the removal of the explicit prohibition from federal contracts could weaken enforcement mechanisms and embolden discriminatory practices. The change has reignited concerns over historical segregation, with experts pointing out that institutionalized racial barriers are not as distant as some might believe.

Murray shared a personal anecdote illustrating how segregation persisted well into the late 20th century. She recalled a conversation with her father, a Jamaican immigrant, who worked at a Washington, D.C. department store in the 1980s. While she assumed he had been a salesman, he clarified that he had only been allowed to work in the back, as Black employees were barred from the sales floor.

Conclusion

While the Trump administration argues that these changes reduce regulatory burdens on businesses, critics contend that the decision undermines long-established civil rights protections. The lack of public consultation and the broad removal of nondiscrimination provisions have raised alarms among legal experts and civil rights organizations. As federal agencies continue to implement these new guidelines, the long-term effects of this policy shift remain to be seen.