Black-Women-Only Grant Program Halted, 11th Circuit Issues Injunction Pending Appeal in Fearless Fund Case
“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.
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:
Reactions:
As many times as the wokeratti need to be told, you cannot contract on the basis of race in this country, even if you are sure you are the good guys. @FearlessFund loses, bigly, thanks to my incredible friends at @ConMcPLLC. pic.twitter.com/xRHpRP4XDc
— Adam Mortara (@AdamMortara) September 30, 2023
REV. AL SHARPTON REACTS TO FEDERAL APPEALS PANEL RULING AGAINST #FEARLESS FUND
Civil Rights Leader Vows to Continue Fight Against Anti-Affirmative Action Campaign, Will Champion Efforts to Economically Empower Black Americans pic.twitter.com/Cm2qxYE6yG
— Reverend Al Sharpton (@TheRevAl) September 30, 2023
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Comments
“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.”
That seasoned jurists fail to understand this, and assume instead that good law is about having the “right” racial preferences, is a sign of national moral collapse.
Trouble is that the “right racial preferences” are an attempt to subvert nature, in that all people are not created equal or created more equal in a virtually infinite number of ways. Society is on balance better off that we excel in unique ways. The problem comes with people who do not excel in anything worthwhile.
We are a lawless society now
It’s all about “feelings”
And it ain’t your “feelings” they give a shit about
So, the “dissenting colleague” believes that the U.S. Constitution and federal anti-discrimination laws don’t inure to the benefit of “white” people?
I see here shades of the same vile attitude that permeated narcissist-incompetent, Obama’s and Eric Holder’s DOJ, when it allowed black panther thugs to get away with a slap on the wrist for engaging in blatantly illegal voter intimidation thuggery at a polling place in a predominantly “white” neighborhood in Philadelphia. Holder later testified before Congress that he believed that the thugs’ conduct didn’t rise to the level of what black Americans had suffered during the Civil Rights era, and thus the DOJ was correct in not aggressively prosecuting the thugs for their conduct.
Can you imagine Holder’s brazen gall? The attorney general of the U.S. testifies in so many words that his standard for enforcing federal civil rights laws is whether the conduct complained-of is similar to what blacks once experienced, while also assessing the racial composition of the perpetrators and victims.
Said Milhouse in a previous post on this subject”
“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.
Any further comment Milhouse?
He’s too busy eating his hat.
I assume “hat” is a euphemism?
…and, I suspect, down rating everyone in this subthread.
As in “If I’m wrong, I’ll eat my hat.”
You’re still an idiot, and I stand by my words. Grants are gifts, and there is no law against discriminating on the basis of race when deciding to whom you wish to give your gifts. Racial discrimination by private people is illegal only where there is a specific law that says so, i.e. in employment, housing, public accommodations, and to a large extent in education.
You have saddened me, Milhouse. While I often but not always disagree with you, I have always viewed your opinions with interest and respect. You are always well reasoned and well written, and you always force me to think through my position. I’ve learned a lot by considering what you have to say. On occasion you’ve even changed my mind. I view you as “the loyal opposition”; you have the courage to come here, and state your views articulately. I like that -echo chambers are a bad thing.
So your resort to ad hominem disappointed me. Worse, twice. Even worse, I wasn’t the guy who disagreed with you. If you read my post all I did was to ask you if you had further comment (Sure I was teasing you, but that was irresistible fun).
Your correct answer in my mind would have been to say, “Nothing has been decided – two judges, two opinions…let’s see what happens.
The US government makes grants all the time and they are definitely intended to sway behavior. This is one of the biggest abusive behaviors of FedGov.
Are those grants “gifts” exempt from discrimination laws? Or do you mean private grants? Or what, because the government grants are most certainly not exempt.
The government is bound by the 14th amendment. Private entities such as the one we’re discussing here are not.
Hmmmm. Where are our resident commenters who will claim “this is the most racist thing I have heard” and “if there were justice in the world that person would be hanging from a tree?”
No. Not speech. Nothing to do with speech. But he is entitiled to his private property rights and his decision to make his property rules whatever he so chooses. He is also entitled to full freedom of association.
We allow all of these things for minority businesses and issues. Colleges with their “No whites” areas and seminars and dorms and all sorts of stuff. That’s all fine … so long as they are private (not taking public money (including not depending on government loans and funding for students to pay their ridiculous highway-robbery tuitions).
This is not about speech. This is about freedom of association and about private property rights, which are the fount from which almost all individual liberties emanate.
Since da SCOTUS decision in Kelo v. City of New London, dere ain’t no mo’ any sich thing as “private property rights.”
Justices Stevens, Kennedy, Souter, Ginsburg, and Breyer removed this foundation of American liberties from us on March 9, 2004, close on twenty years ago.
and that shocking Kelo decision has never been reconsidered. It sort of came out of left field, a crazy decision, and it’s stuck.
Someone said it’s because of US bankruptcy and China demanded eminent domain rights over all US assets for our government to keep governing. I don’t know, but it’s crazy enough to have that sort of explanation.
Wow.. It appears that some courts still follow the law. I’ll be really convinced if the DC circuit court of appeals orders the recusal of Chutkan. If President Trump’s legal team ever gets around to filing a mandamus action challenging that hack judge’s absurd denial of recusal.
Meh. Wake me when they start labeling drinking fountains.
Sharpton can economically empower other black people by giving them some of his money. Not some of mine.
Is there any requirement for a black person to prove that they are legitimately female, the way that most women are?
How can anyone be sure, anymore, that a person is actually black or of any particular gender?
Ah well, the essential constraint is that Caucasians are NOT WELCOME.
So, when do we abolish 8(a) set-asides in fed guv contracting?