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Georgia Federal Judge Rules Racially Discriminatory Contracting Is “Speech and Expression” Protected By 1st Amendment – Emergency Appeal Filed

Georgia Federal Judge Rules Racially Discriminatory Contracting Is “Speech and Expression” Protected By 1st Amendment – Emergency Appeal Filed

Emergency Motion for injunction pending appeal: “The district court said discriminatory contracting itself is protected speech. That line is one the Supreme Court has always been careful not to cross, as it would destroy the whole enterprise of antidiscrimination law…. But the district
court crossed it.”

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 American Alliance for Equal Rights (AAER), a group formed by Ed Blum, whose Students for Fair Admissions won the Harvard affirmative action case, sued Fearless Fund in federal court for the Northern District of Georgia over a grant program open only to black women. The claim was brought under a post-civil war statute prohibiting discrimination in contracting, not under the Equal Protection Clause of the 14th Amendment (which arguably would not apply to a private investment company) or other discrimination statutes. You can read the Complaint and Motion for Preliminary Injunction.

Numerous civil rights groups filed Amicus briefs supporting the defendant and the black-woman-only grant program.

There were numerous media reports two days ago that Senior Judge Judge Thomas W. Thrash, Jr., a Clinton appointee, had denied the preliminary injunction.

There was celebration that this was a huge victory for civil rights.

None of the reports linked the decision or went into much detail about the grounds for it. So we ordered (and paid for) the transcript of the hearing and ruling from the bench, and I was floored when I read the Judge’s comments and reasoning, which provided in pertinent part:

I’m going to deny the Plaintiff’s motion for a preliminary injunction for these reasons: I don’t think the Plaintiff has shown sufficient likelihood of success on the merits to grant the extraordinary relief of a preliminary injunction.

I’ll get out a written order as soon as possible, but — and I’ll discuss the standing and irreparable injury, the balance of the harms, and the public interest, to some extent, in that.

What I’m going to talk about today is, as I said, likelihood of success on the merits.

The Defendants, in my opinion, have a message that they are trying to communicate that black women business people have suffered discrimination and lack of equal access to capital to begin, expand, and promote businesses. And the Defendants, with their grants, are trying to send a message that they recognize that and want to support black female business people with their charitable donations.

Under the controlling Eleventh Circuit authority of Coral Ridge Ministries media, donating money qualifies as expressive conduct and is entitled to First Amendment protection. That was not a 1981 case, but I have no reason to believe that the Eleventh Circuit would have decided the case any differently under Section 1981.

And the Plaintiff disagrees with that message. They want the Defendants to communicate a different message.

Well, that’s not the way it works. The First Amendment protects the Defendants’ right to decide what message they want to promote, and that’s what the First Amendment is all about.

So for those reasons, I’m going to deny the Plaintiff’s motion for a preliminary injunction and deny the Plaintiff’s motion for an injunction pending appeal.

As I said, I’ll get out a written order, hopefully, before the end of the week, but, in any event, as soon as I possibly can.

Wait, what? Did the judge really rule that racially discriminatory contracting is expression protected by the First Amendment? Can’t be, that goes against the entire body of law, and if true, would eviscerate a wide range of civil rights laws. So I awaited the written Order and decision before writing about this, surely he would correct that error when it came time for a formal ruling.

But the Order Denying Prelminary Injunction did not correct the error, it memorialized the error, providing in pertinent part:

Turning to the merits of the Defendants’ proffered First Amendment defense, the Court acknowledges at the outset that the holdings of 303 Creative and Runyon are difficult to square. The former held that a State could not “use its [antidiscrimination] law to compel an individual to create speech she does not believe,” 303 Creative, 143 S. Ct. at 2308, while the latter held that “[i]nvidious private discrimination . . . has never been accorded affirmative constitutional protections.” Runyon, 427 U.S. at 176. Granted, the plaintiff in the former brought her case seeking injunctive relief from the application of a state antidiscrimination law that abridged her First Amendment speech and expression rights, while the plaintiffs in the latter brought their case seeking injunctive relief under a federal antidiscrimination law that ultimately did not abridge the defendant-schools’ First Amendment association rights. But the difference in the law giving rise to the plaintiffs’ claims and the constitutional provision of the First Amendment invoked as a defense seem unlikely to warrant such a divergent result on the merits.

This case contains elements of both 303 Creative and Runyon. The Plaintiff seeks injunctive relief under the same federal antidiscrimination law as the plaintiff in Runyon, though on behalf of non-Black as opposed to Black plaintiffs. But the Foundation here seeks First Amendment protection for its speech and expressive conduct, like the plaintiff in 303 Creative and as opposed to the school in Runyon who sought protection for its associative conduct. Under such a hybrid circumstance, and considering the recency of the 303 Creative decision, the Court is compelled to apply the standard governing that opinion. Cf. 303 Creative, 143 S. Ct. at 2315 (“When a state public accommodations law and the Constitution collide, there can be no question which must prevail.” (citing U.S. Const., Art. VI, cl. 2.)). Applying § 1981 as the Plaintiff proposes would impermissibly “‘modify the content of [the Foundation’s] expression—and thus modify [its] ‘speech itself.’” Coral Ridge, 6 F.4th at 1256 (quoting Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 578, 573 (1995)). Accordingly, because the First Amendment may bar the Plaintiff’s claim, the Court cannot conclude that it has carried its heavy burden of showing a clear likelihood of success on the merits at this stage….

Under the circumstances, the Court cannot conclude that § 1981 allows the Plaintiff injunctive relief prohibiting the Foundation’s chosen speech and expression.

The plaintiffs have filed an Emergency Motion with the 11th Circuit seeking an administrative injunction (a holding mechanism to allow the court time to consider the motion) or alternatively an injunction pending appeal prior to the September 30 application deadline for the grant program. The appeal and motion were filed after the Judge’s oral ruling but before the written Order:


Section 1981 bans all racial discrimination in contracting—public and private, no matter which race is harmed. See 42 U.S.C. §1981. Defendants run the Fearless Strivers Grant Contest. Contests are contracts—submissions for prizes—and here Fearless admits that its contest’s rules “ARE A CONTRACT.” Yet the contest is open only to black women. Whites, Hispanics, Asians, and every other race are barred from entering. A more blatant violation of §1981 is hard to imagine. Plaintiff, the American Alliance for Equal Rights, sued Fearless on behalf of three white and Asian members, asking the court for a preliminary injunction that lets them compete on equal terms before the application window rapidly closes.

Yet the district court denied a preliminary injunction. Its oral denial rested on one ground: that Fearless’ contest is speech protected by the First Amendment. That reasoning flies in the face of decades of precedent, resurrecting arguments that were first tried by segregationists. E.g., Runyon v. McCrary, 427 U.S. 160, 176 (1976). Contracts are not speech, and any incidental communicative effect does not bar Congress from banning the underlying conduct. This Court will likely reverse.

Time is of the essence. Fearless will stop accepting applications on September 30—in four days. Once Fearless selects a winner, the Alliance’s members will lose their chance to compete for the prize in the normal course. To preserve the status quo, this Court should enjoin Fearless from closing the application window or selecting a winner until this appeal is decided. And to give itself time to decide this motion, this Court should grant an administrative injunction ordering that same relief. The Alliance asks the Court to at least enter an administrative injunction by September 30, 2023.

The motion points out the implications:

Fearless claims the right that those cases all deny: a right to discriminate in contracting because §1981’s mandate of race neutrality might have an incidental effect on the communicative effect of their conduct. In other words, they seek First Amendment protection for the discrimination itself. While they want to deliver their message that businesses owned by black women are important, Fearless remains free to express this message by donating money, encouraging others to support businesses owned by black women, and through mentoring and networking. But the First Amendment gives them no right to discriminate by race in contracting, even if that discrimination might deliver some message. The district court’s alternative view would obliterate nondiscrimination law. To borrow Fearless’ example, a white-owned company could refuse to contract with blacks to “[e]spouse its First Amendment belief that ‘[white] [male]-owned business are vital to our economy.’” D.E.59 at 23. Section 1981 would be a dead letter.

You can read the Response from Fearless, and the Reply from the Plaintiffs after the written Order was issued:

The district court’s now-released opinion clarifies the stakes. The Alliance is likely to succeed on every merits question, the district court ruled, except one: Fearless’ defense under the First Amendment. So under the district court’s decision, companies can create programs that are contracts, that are not valid affirmative-action plans, and that exclude all races but one—yet evade liability by saying their discrimination is “expressive conduct.” D.E.115 at 15. That a federal court would say the Civil Rights Act of 1866 likely violates the First Amendment is alarming. And it’s indefensible given the many Supreme Court precedents saying the opposite. E.g., Wisconsin v. Mitchell, 508 U.S. 476, 487 (1993) (“[§]1981” is “a permissible content-neutral regulation of conduct”). This case does not involve some unusual application of §1981, where a court is using the statute to compel or alter pure speech. The district court said discriminatory contracting itself is protected speech. That line is one the Supreme Court has always been careful not to cross, as it would destroy the whole enterprise of antidiscrimination law. See 303 Creative LLC v. Elenis, 143 S.Ct. 2298 (2023). But the district court crossed it.

This Court cannot let the district court’s evisceration of §1981 stand; but it might have to if the Alliance can’t get an injunction pending appeal before September 30. Fearless doesn’t dispute that it will close the application process in two days. And Fearless doesn’t deny that, once it selects a winner, it will argue this entire case is moot. This Court should not tolerate that threat to its jurisdiction. And preserving the status quo is especially appropriate here, since it would prevent invidious racial discrimination against the side most likely to win.

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.

As of this writing, the 11th Circuit has not ruled on the emergency request for an administrative injunction. We will update this post when a ruling comes down.

[Note: If the appeals court takes up the case on a briefing schedule, it is the intention of the Equal Protection Project to file an Amicus Brief supporting AAER and seeking reversal of the District Court Court Order.]


Donations tax deductible
to the full extent allowed by law.


So, instead of accepting applications for a job within my company, I could run a contest, awarding “extra entries” or points in the contest for meeting certain criteria, and have the contest open to White Males and totally be within the law under my First Amendment rights?


    alien in reply to Hodge. | September 28, 2023 at 7:55 pm

    I don’t think so, Hodge.

    “Separate but equal,” settled law for many decades, was overturned by the SCOTUS.

    “Separate but unequal” is the new hotness approved by the Federal judge — but only if you’re a minority.

    Concise in reply to Hodge. | September 28, 2023 at 8:18 pm

    Looks like this judge decided to overrule Shelley v. Kraemer. Given the quality of their prosecutors and grand juries, this seems typical of Georgia stupid these days.

      Milhouse in reply to Concise. | September 28, 2023 at 9:58 pm

      Shelley v Kraemer is entirely about government action, not private action. After Shelley people remained free to make whatever racial covenants they liked; but the courts could not enforce such covenants, because that is government action.

      No government action whatsoever is involved here, so Shelley is irrelevant.

        Concise in reply to Milhouse. | September 29, 2023 at 12:05 am

        Try to tone done the pendantry, it’s really quite annoying if you want my opinion. I was referring to the underlying facts in which the restrictive covenants at issue were defended as being valid, notwithstanding that they were discriminatory, because they were just private contracts. Yeah, I could have been clearer but its just a flippant comment, so I didn’t care to be ( and couldn’t edit even if I did)

          Concise in reply to Concise. | September 29, 2023 at 12:08 am

          Yeah I mistyped “pedantry,” which I suspect will only encourage more pedantry from Millhouse. Everyone needs a hobby I guess.

          Milhouse in reply to Concise. | September 29, 2023 at 3:09 am

          And you have missed the entire point. As private contracts, Shelley held they were lawful. Nothing illegal about them at all. So this decision is entirely consistent with that.

          Concise in reply to Concise. | September 29, 2023 at 8:51 am

          Not sure how to describe your misunderstanding, see below. Maybe missing the forest for the tress.?

        Concise in reply to Milhouse. | September 29, 2023 at 8:15 am

        No my friend, I fear you missed the entire point. By this judge’s logic, the racially restrictive covenants at issue there were not really discriminatory.; they just constituted protected expression reflecting the preference of the homeowners to promote white only ownership. So there’s no underlying discrimination to ban, state action or not. Please argue with someone else.

    Milhouse in reply to Hodge. | September 28, 2023 at 10:01 pm

    No, for the same reason you can’t just outright hire only white people: because discrimination in employment is specifically barred by law.

    But a grant is not employment. When you give away your own money you are entitled to give it to whomever you choose, on whatever basis you wish, including race. It has never been suggested that you may not stand in the street and give away a dollar to every white person you meet, while denying dollars to anyone who isn’t white.

      ThePrimordialOrderedPair in reply to Milhouse. | September 28, 2023 at 10:44 pm

      But a grant is not employment.


      A grant is more employment (without any specific work requirement) than it is “speech”.

      With a grant, you are just paying someone to be who you think they are. Sounds like employment, to me.

        You’re an idiot. No, a grant is not employment at all. It’s a private gift, and you are entitled to give gifts to anyone you like. You are not paying them to be anyone, or to do anything; you’re not paying them at all, you’re giving to them.

        And when you do it in order to express a certain opinion, then that is of course protected by the freedom of expression, just like any other expressive conduct.

          ThePrimordialOrderedPair in reply to Milhouse. | September 29, 2023 at 4:28 am

          You’re an idiot. No, a grant is not employment at all. It’s a private gift, and you are entitled to give gifts to anyone you like.


          Hey, Einstein, I think you need to argue with Fearless Fund about what they are actually doing. You are speaking for them, saying that they are just giving gifts to people they choose. They, on the other hand, describe what they’re doing as COMMERCE and not as any sort of friendly gift but venture capital:

          Fearless Fund invests in women of color led businesses seeking pre-seed, seed level or series A financing. Our mission is to bridge the gap in venture capital funding for women of color founders building scalable, growth aggressive companies. Fearless Fund is built by women of color for women of color.

          That’s commerce, genius. That’s what they’re doing. Not handing out gifts.

          Now, I think they have every right to do that, the same way that any black company has every right to hire mostly black people (and so many of them do). On the other hand, everyone else in society also has the same G-d-given right to his private property and to his associations and to do with his property as he pleases and to associate with whom he pleases and to combine the two however so he pleases.

          But if you think Fearless is just running around handing out gifts then you need to tell them that they aren’t bridging venture capital gaps (which don’t exist, anyway, the same as the fanciful “wage gap”) but are giving gifts. They think they are doing commerce.

          Joe-dallas in reply to Milhouse. | September 30, 2023 at 9:04 am

          I am not agreeing nor am I disagreeing with your analysis. Grants may very well not be subject to the standard anti-discrimination statutes.

          I havent had the time to follow up and research the distinct differences that would be applicable to the “Grant” scheme. That being said, I am curious how the legal analysis in the 1983 case Bob Jones Univerisity v IRS would apply whereby Bob Jones University lost its tax exempt status due to the racial discrimination policies. (with the caveat that Bob Jones was exempt under 501(c)(3) as an educational institution).

          Granted the case is not directly on point, though the legal rationale may be applicable.

      so according to your logic a motel could grant whites only a free night stay?

        AF_Chief_Master_Sgt in reply to MarkS. | September 29, 2023 at 8:05 am

        Perhaps under the guise of a hotel stay being construed as a private contract, protected as free speech.

    Lucifer Morningstar in reply to Hodge. | September 29, 2023 at 8:57 am

    Better yet is if this decision is upheld if your company is contracting out for work to be done you can specify that White owned companies will be given preference over minority owned companies when awarding the contract. And when the losing minority companies sue, you will be able to say your company contracting policies are “protected speech & expression” under the 1st Amendment and do not violate the law..

Well now, this is an interesting 1stA perspective from the Judge it would in practical effect gut much of the Civil Rights era legislation re contracting and potentially place ‘freedom of association’ into primacy ahead of nondiscrimination laws/policies b/c it is
derived from the 1st amendment. Given the practical impact I can’t believe the folks cheering the ruling understand the potential implications here?

Biased and stupid judges, hack prosecutors, worthless legislature and governor. I didn’t realize Georgia was so messed up.

    AF_Chief_Master_Sgt in reply to Concise. | September 29, 2023 at 8:07 am

    Unfortunately, this points to the sorry state of our law schools, and the social just-us nonsense they teach and permit.

It is not just Georgia, it is everywhere including DC and NY

    JohnSmith100 in reply to MarkSmith. | September 28, 2023 at 9:01 pm

    We made a big mistake when we allowed George Zimmerman and a bunch of others to be persecuted. There must be accountability and punishment. Bald faced racists should not receive any concessions, end AA and clean out the incompetent people.

Andtidiscrimination laws do violate the First Amendment, but not the Free Expression clause – They run counter to the Free Association Clause, which should not be the dead letter that these laws have made it.

The Government can’t discriminate, but it also can’t tell us who we can or cannot to do business with.

I know the court has said otherwise, but the courts often add things that aren’t there to get a preferred outcome over the actual reading of the text.

    UnCivilServant in reply to UnCivilServant. | September 28, 2023 at 8:53 pm

    *Implicit Free Association

    Sorry, I was trying to get the thought on the page too fast, it’s not an explicit clause.

    When you stack what is there, it might as well be.

    Go ahead, rain your chastizing ‘actually’s on my poorly phrased expression of position.

    nope, the government can and does tell companies who they must do business with,

      Othniel in reply to MarkS. | September 29, 2023 at 4:05 pm

      It certainly has the power to do so, but the constitution does not grant the authority. Freedom of association should prohibit any anti-discrimination law that targets private parties.

Clinton appointee, I think I spot the problem.

It’s correct but it isn’t free speech, it’s freedom of association, the freedom that’s guaranteed that the civil rights law did away with. To get it back, you have to disguise it as some other freedom that hasn’t been taken away. Religion is the usual choice, but speech will do.

It still can’t be done by a state actor; and you’d want a law saying that it can’t be done in a monopoly market., which is what the civil rights law ought to have said.

ThePrimordialOrderedPair | September 28, 2023 at 9:43 pm

‘Commerce is Speech’


And a highrise is a chair because it has a flat roof that someone can sit on.

However, individuals and private companies certainly have the right to buy and sell to whomever they choose and are allowed to discriminate all they want. That is what private property and freedom is all about. Private people and private companies have every right to discriminate to their hearts’ content … but it ain’t “speech”; it’s private property rights and individual liberty. Public companies and government, however, have no such rights because it is not private property and there is no “individual liberty” connected to any government actions.

    ThePrimordialOrderedPair in reply to ThePrimordialOrderedPair. | September 28, 2023 at 9:50 pm

    By “public companies” I mean companies either working for the government of essentially funded by the government (like most universities or any tax exempt org), not companies publicly listed (which are still private property).

      Tax exempt orgs are not funded by the government, and are not subject to the 14th amendment.

      But private people are banned from discrimination in certain areas: employment, housing, public accommodation, and to a large extent education.

      Grants are not included. There is no law banning discrimination in making private grants.

        ThePrimordialOrderedPair in reply to Milhouse. | September 28, 2023 at 10:41 pm

        Tax exempt orgs are not funded by the government,

        Effectively, they are, as they are given special privileges. For these special privileges they should be required to follow the same rules that government entities have to follow. Religious organizations are exempt from this as they have their own Constitutional carve-out. Other tax exempt “charities” and organizations, however, do not and should be treated as governmental orgs are treated. Otherwise, they can do away with their tax-exempt status and do whatever they want.

        But private people are banned from discrimination in certain areas: employment, housing, public accommodation, and to a large extent education.

        Which is all un-Constitutional and completely un-American. Private property rights are the fount from which almost all individual liberties flow and need to be respected above all. Much of the Civil Rights legislation is just, plain un-Constitutional.

          Again, you’re an idiot. Tax exempt orgs are not funded by the government. End of story. There is no basis whatsoever for considering them government entities.

          And no, tax-exempt status is not a “special privilege”; they conform with the objective rules set out by law, so they’re entitled to the same treatment as all other orgs that conform with those laws, which must be administered in a completely viewpoint-neutral way.

          And no, anti-discrimination laws are not unconstitutional. No court has ever held that, and no court ever will. Natural law philosophy is not incorporated into the constitution.

          AF_Chief_Master_Sgt in reply to ThePrimordialOrderedPair. | September 29, 2023 at 8:14 am

          I would have to dispute part of this. I am the president of a 501c6.

          This organization in and of itself discriminates against a certain protected class by not allowing membership to that class.

          This is freedom of association, and the last bastion of protection to allow the members to freely associate. It helps that this is also a religious organization.

I haven’t got the time today to go through the decision and the sources, but it seems to me that this is basically right. Private entities are entitled to make grants as they like, including on a racial basis. Hence the United Negro College Fund.

Section 1981 says that all people are equally entitled to enforce the contracts they have made; it doesn’t say they can compel people to make contracts with them in the first place.

The argument that a grant application is a contract, or that a grant itself is a contract, proves too much; if that were so then marriage is also a contract, so we would not be allowed to choose whom we wish to marry! That has never been suggested by any legislature or court!

The 14th amendment bars government entities from racial discrimination. The various civil rights acts bar private entities from racial discrimination in employment, housing, public accommodations, and schools that receive federal money, even indirectly, are barred from racial discrimination in education. But making a grant is none of these things, so when it is made and administered by a private entity it’s not only lawful but an expression of their individual preferences, which is protected by the first amendment.

    ThePrimordialOrderedPair in reply to Milhouse. | September 28, 2023 at 10:50 pm

    if that were so then marriage is also a contract,

    Marriage has long been a contract in most of the West – dating from biblical times and even before.

    The various civil rights acts bar private entities from racial discrimination in employment, housing, public accommodations,

    All of which are completely un-Constitutional – takings without any compensation.

      The lack of compensation is the least offensive part of the anti-discrimination laws.

      And the point goes right past you. Marriage is a contract, and yet nobody would be so stupid as to suggest that a law against racial discrimination in contracting therefore applies to it. So the claim that the law should apply here because a grant is a contract fails.

      And no, the civil rights laws are not unconstitutional. They are not takings. They do not fit any definition of takings.

        ThePrimordialOrderedPair in reply to Milhouse. | September 29, 2023 at 4:12 am

        And no, the civil rights laws are not unconstitutional.

        A good bulk of them most assuredly are. Our courts (and people like you), however, are too cowardly to admit that obvious fact.

        They are not takings. They do not fit any definition of takings.

        They reduce the value of private property through government imposed rules (which also happen to be thoroughly un-American and un-Constitutional in any number of different ways). That is a taking.

        If I were you (and thank G-d I’m not) I would be very careful throwing that “idiot” word around.

    artichoke in reply to Milhouse. | September 29, 2023 at 3:51 pm

    Is marriage a contract between the people getting married? Isn’t it legally mainly a tax status, a status in the law of inheritance, etc.? If there’s a divorce, it goes to something like family court, or maybe a special divorce judge, not civil court, right? It may be a contract between the two people on one side, and the state on the other, but I don’t see that it’s a contract between the two people.

    artichoke in reply to Milhouse. | September 29, 2023 at 3:54 pm

    Also, to get married, your document has to be ratified by a judge, or maybe clergy who probably flip it to a judge for official filing. What contract between two parties is like that? Usually a contract between private parties happens without official notice and, only if there’s a dispute, people will come to civil court with evidence that such a contract existed and fight over the settlement.

Thank you for this timely article.

It’s unclear to me this case would strike anti-discrimination laws, but I hope they are all stricken.

I am resentful and angry that I live in a country that offers me fake freedom and tells me to go rah-rah about it.

I want real freedom, not fake freedom. I want complete, thorough, invigorating, and joyful freedom of association – & freedom from association – without the vicious establishment putting its boot on my neck every time I do something it doesn’t like.

2023 America is the pits. The anti-discrimination laws and many other laws, or alienating one American from another as surely as water causes erosion.

    artichoke in reply to Close The Fed. | September 29, 2023 at 3:46 pm

    “I am resentful and angry that I live in a country that offers me fake freedom and tells me to go rah-rah about it.”
    This is the comment of the month or of the year. Agree 100%.

Hmm, maybe America should stop trying to force Americans to associate with one another and let people associate with who they want to associate with?

Nah, we’re going to keep forcing people to associate with one another because that’s “progress.”

    henrybowman in reply to chrisboltssr. | September 29, 2023 at 3:48 am

    Every so often it’s worth reminding yourself that American civil rights law whiplashed citizens who were FORBIDDEN to serve certain minorities (under Jim Crow) into citizens who were forbidden NOT TO serve those same minorities (under CRA), without ever passing through any stage where the citizens were allowed to decide for themselves whether or not they chose to serve those minorities.

a good way to put a stop to this is for the KKK to offer a grant, for something, anything will do, that is available only to white people, and then the judiciary will regain its senses

How does this judge feel about race covenants in real estate contracts that have long been deemed unconstitutional?

The moral, intellectual and jurisprudential rot on the federal bench runs deep.

    guyjones in reply to guyjones. | September 29, 2023 at 7:26 am

    I amend my comment to acknowledge the distinction that apparently racial covenants in real estate contracts are constitutional, but, state/judicial enforcement of them is not. That said, I’d still be curious what this judge has to say on the subject, given his ruling.

      Right?! That was the first thing that popped into my mind with regard to this ruling.
      The old, “be careful what you wish for.”

      artichoke in reply to guyjones. | September 29, 2023 at 3:44 pm

      I don’t know what you’re referring to here. I bring a contract into civil court, I say my opponent violated the racial covenant in it. It’s a legal contract (the covenant is legal, according to you).

      On what ground will that court not enforce my contract? To what extent would it not enforce it? Would it not cancel a sale in violation of it, or give damages if a sale violating it occurred? Why not?

        henrybowman in reply to artichoke. | September 30, 2023 at 4:30 am

        The usual claim is “against public policy.”
        I encountered a case like this in my neighborhood. There was a multi-generational farm/estate at the corner of Pohick and Lee Chapel Roads in Springfield, VA. At the time I lived on Pohick, the last resident descendant of the family died. In his will, he specified that the property should go to the county for use as a park. Shortly after beginning construction, a hitch arose: they discovered a restrictive covenant on the property dating back to Reconstruction, enjoining that “no Negro shall ever set foot” on it. It caused a minor uproar, as it was a perfectly legal restriction at the time the deed was written. We all watched to see how they would handle it. The County lawyers simply had it ruled “contrary to public policy” and it was as if the restriction had never existed. Stroke of a pen, screw your property rights; never forget the government can do this really any time they please.

I haven’t seen the source of the funds which constitute these grants. Has this been disclosed? If so, I missed it.

Easy, there. The judge got this exactly right.

First: while Section 1891 protects a person’s right to make and enforce contracts regardless of race, it does so by recognizing that it provides for rights “[as] is enjoyed by white citizens”. That means you cannot be denied legally protected rights because of race.

Second: anti-discrimination laws cannot compel a person to engage in speech or messaging he disagrees with. That includes donating money or labor.

Do white businesses enjoy the right to another person’s money when that person wants that donation to go towards black woman owned businesses?

Is a person enjoined from donating his own money to black woman owned business by civil rights laws unless he is compelled to donated non-black non-woman owned businesses as well? Something he doesn’t want to bake a cake for?

Just because the donation goes through a third party to be awarded as a grant — which requires some form of contractual agreement — does not necessarily mean it runs afoul of Section 1981.

Fearless Fund, EIN: 52-2111652, is listed on the IRS website of exempt organizations.

If a tax-exempt organization discriminates, it may lose its tax exemption status. This means that contributions to the organization is not tax deductible.

Should someone drop a dime?

I certainly appreciate the push on this. I think the non-discrimination laws (that apply to non-governmental entities) have always been too far over the line, applying to private behavior that was a fundamental part of our freedoms. “Public accommodation” was always a bogus incursion into those freedoms.

I don’t think this will have the impact everyone thinks it will. Though it might certainly encourage a lot more suits aimed at this sort of edge case. I can only hope it eventually beats down the restriction on freedom.

Then we can work on the moral question of discrimination as we ought.

    artichoke in reply to GWB. | September 29, 2023 at 3:39 pm

    But if civil rights law is trumped, do you think treatments of whites will improve? Already organizations are discriminating against them far beyond any legal obligations. Having built up anti-white enforcement mechanisms, now those can run freely without legal constraints. Additionally, non-whites have the legal advantage that anyone but white men is not in some legal “protected class”. In some circumstances, it’s explicitly illegal to discriminate against anyone except a white man, who lacks that protection. And that is a third-rail that nobody is even mentioning, let alone touching legally.

      henrybowman in reply to artichoke. | September 30, 2023 at 4:17 am

      Current civil rights law in a two-tiered justice system restricts the freedom of association of white people while not being enforced against any other group. Remove the restrictions, and “treatment of whites” will incrementally approve because they will at least be free to play the same discrimination games that others currently get a free ride on playing.

The judge may actually be correct in theory. The question posed: “Is it Constitutional for a statute (42 USC 1981) to prohibit a private individual from pursuing a goal of assisting a certain group of individuals?”
The statute expressly applies to government and private (Defendant is a private group) contracting. By its terms, 1981 takes away individual rights and seems to grant our government has the right to control the charitable donations and efforts of individuals. How does that play out when extended to other situations? For example, a private organization formed to help homeless veterans would, it seems, have to expend its efforts to help any homeless person demanding assistance.
The statute expressly states its goal is to extend to every individual the same rights as white people enjoy. SCOTUS has just outlawed Affirmative Action. Is this statute not a form of affirmative action at the cost of my First Amendment rights?
I have more questions than answers.

I live in GA and we have to put up with the trash like AG Fani Willis and Hank “Tipover” Johnson. We also have the traitor Kemp as our governor. Seeing this nonsense is typical in all-black Atlanta and most rulings made here are antiConstitutional.

Did anyone have ‘Federal Courts will Make the 14th Amendment a Dead Letter’ on their 2023 Bingo Card? I sure didn’t.

“The following is adapted from a talk delivered on January 28, 2020, at Hillsdale College’s Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship in Washington, D.C., as part of the AWC Family Foundation lecture series.

The Roots of Our Partisan Divide
By Christopher Caldwell, Senior Fellow, The Claremont Institute
Author, The Age of Entitlement: America Since the Sixties
Imprimis, FEBRUARY 2020 | VOLUME 49, ISSUE 2

“American society today is divided by party and by ideology in a way it has perhaps not been since the Civil War. I have just published a book that, among other things, suggests why this is. It is called The Age of Entitlement: America Since the Sixties. It runs from the assassination of John F. Kennedy to the election of Donald J. Trump. You can get a good idea of the drift of the narrative from its chapter titles: 1963, Race, Sex, War, Debt, Diversity, Winners, and Losers.

I can end part of the suspense right now—Democrats are the winners. Their party won the 1960s—they gained money, power, and prestige. The GOP is the party of the people who lost those things…” (but read on)

    Philip in reply to Philip. | September 29, 2023 at 12:14 pm

    The more obvious problem with affirmative action is, of course, that in the process of favoring certain races it inherently disfavors others. If you’re a disfavored race, it’s fair to rename affirmative action as “disaffirming action.”

      If your goal is “equity” – that is, that everyone end up somehow equal, then there’s at least an end point. Once this industry has 13% black people in it, and 51% women, and… you can end affirmative action.
      Of course, as long as you can find it’s off by 1/10%, you can keep stringing it along.

      If you throw in that the racism is “systemic” – then you can make it run forever.

        artichoke in reply to GWB. | September 29, 2023 at 3:33 pm

        It’s like “women’s lib” which in the 1970’s meant that women could have jobs too. By the 1980’s when I started working, they were receiving advantages at work — standards to keep their jobs and get promoted were obviously lower. And it mushroomed from there.

        These movements change their spots whenever they want to. They have no principles and no shame, only ambitions and desires.

Whites are now benefiting from civil rights law, against the administrative superstructure laboriously constructed during about 60 years to discriminate against them. So the civil rights law is now being torn down, with that administrative superstructure remaining in place. There would be nowhere to turn legally as anti-white discrimination ramps up to new levels.