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:
INTRODUCTIONSection 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.]
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