We recently covered an determination by a District Court Judge in the Northern District of Georgia that, if upheld, would have eviscerated the entire legal regime of anti-discrimination laws, Georgia Federal Judge Rules Racially Discriminatory Contracting Is “Speech and Expression” Protected By 1st Amendment – Emergency Appeal Filed:
Affirmative Action sure does make strange alliances. In this case, a desire to defend a grant program open only to black women may bring down the entire anti-discrimination legal infrastructure that has been in place for over 150 years, if a District Court ruling that racially discriminatory contracting is “speech and expression” protected by the First Amendment is not reversed….The absurd implications of the District Court Order are apparent. Can a building owner say that having a “whites only” bathroom is speech and expression entitled to First Amendment protection. You probably can think of dozens of other counter-examples.The civil rights groups supporting the racially discriminatory grant program at issue and arguing that discriminatory contracting is speech do not appreciate the implications of this District Court Order being upheld. They are so angry at Ed Blum for winning the Harvard case that they would rather see the entire regime of anti-discrimination laws cast aside so long as Blum does not win again.
The Court of Appeals for the 11th Circuit just issued an Injunction Pending Appeal completely rejecting the District Court’s use of the First Amendment to excuse discriminatory contracting….
The plaintiff’s motion for an injunction pending appeal is GRANTED. An appellant may secure an injunction pending appeal if it establishes a substantial likelihood of success on the merits, irreparable injury in the absence of an injunction, and that the balance of the equities and public interest weigh in favor of an injunction. See Tandon v. Newsom, 141 S. Ct. 1294, 1297 (2021). For the reasons stated in the plaintiffs motion for an injunction, we conclude that the plaintiff has established that the defendants’ racially exclusionary program – the “Fearless Strivers Grant Contest” – is substantially likely to violate 42 U.S.C. § 1981.The district court held that the plaintiff” clearly” has standing and has “clearly shown the existence of a contractual regime that brings this case within the realm of § 1981.” But the district court reasoned that Section 1981 was likely unconstitutional under the First Amendment as applied to the defendants. We disagree. The defendants do not provide “expressive services” or otherwise engage in “pure speech.” 303 Creative LLC v. Elenis, 143 S. Ct. 2298, 2318 (2023). Although the First Amendment protects the defendants’ right to promote beliefs about race, it does not give the defendants the right to exclude persons from a contractual regime based on their race. Runyon v. McCrary, 427 U.S. 160, 176 (1976).Unlike the district court, our dissenting colleague concludes that the plaintiffs Section 1981 claim is unlikely to succeed because the organization is supposedly “bringing a§ 1981 claim on behalf of white members.” Our dissenting colleague reasons that “[t]he inclusion of Asian business owners, while a racial minority, does not cure the inclusion of white business owners.” We disagree. The Supreme Court has held that Section 1981 “was meant, by its broad terms, to proscribe discrimination in the making or enforcement of contracts against, or in favor of, any race.” McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 295 (1976). We find no support in our caselaw to limit the standing of a membership organization to file a Section 1981 claim because it has members of many different races.In light of the plaintiffs’ likelihood of success on the merits, the plaintiffs have established an irreparable injury and that the balance of equities and public interest favor an injunction. See Gresham v. Windrush Partners, 730 F.2d 1417, 1424 (11th Cir. 1984). Accordingly, the defendants Fearless Fund Management, LLC, Fearless Fund II, GP, LLC, Fearless Fund II, LP, and the Fearless Foundation, Inc., are ENJOINED from closing the application window or picking a winner for the “Fearless Strivers Grant Contest” until further order of this Court.The Clerk is directed to treat any motion for reconsideration of this order as a non-emergency matter.
MORE TO FOLLOW
I appeared yesterday on the Tony Katz Show to talk about the District Court ruling:
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