Colinvaux: Eleventh Circuit Gets Fearless Fund All Wrong

Justices Ketanji Brown Jackson and Sonia M. Sotomayor wrote scathing dissents in Students For Fair Admission.  

When you hear commentators label a dissent "scathing," what they mean is that the dissent effectively and with surgical logic dismantles the majority argument.  It exposes illogic and in some cases it exposes hidden privilege or bias.  I am not sure Roger Colinvaux's latest on Fearless Fund exposes privilege or bias but it is scathing anyway.  He dismantles the reasoning behind the Eleventh Circuit's opinion and shows why charity is necessarily remedial in a Constitutionally appropriate sense. 

The problem is the argument that Fearless Foundation has a First Amendment right. That's not necessarily Roger's argument just one he slightly endorses, it seems to me. I think the First Amendment argument is a bridge way too far, as I have said before.  It's an all or nothing argument when one isn't necessary.  If the Fearless Fund has a First Amendment right to discriminate, then so does Bob Jones University and everybody else.  Fearless Foundation will be left with nothing if it insists on that argument.  Colinvaux's argument -- one I endorse not just slightly -- does not require the First Amendment to prevail.  His logic is irrefutable by itself.  Here is an excerpt:

The logic used in this case could have far-reaching implications for how charities operate, particularly those formed to remedy structural inequities resulting from past discriminatory practices. It could, for example, extend to identity-based scholarships, remedial programs that take race, gender, or even religion into account, and virtually any charitable support that has contract-like features, such as grants, loans, or investments in charitable programs.

. . . 

As I explained in an amicus brief filed on the side of the Fearless Fund, by construing a civil rights law to prohibit certain types of philanthropic funding, the case indirectly attacks charitable organizations’ ability to fulfill their missions. In doing so, it attacks the missions themselves.

The ruling is as disappointing as it is fundamentally flawed. The court’s cursory analysis ignores the most important feature of the case: the Fearless Foundation is a charity doing what charities do. While noting that the plaintiff, the American Alliance for Equal Rights, is a 501(c)(3) organization, the court never acknowledges that the foundation operated by the Fearless Fund is also a 501(c)(3) charity and that the contest is how it provides charitable support. 

Ignoring the Fearless Foundation’s charitable status, however, allowed the court to conclude that the grant contest was no different than any other contest, or sweepstakes, held by a noncharitable institution — except that it was exclusively for Black women-owned businesses. While this appeals to the notion that everyone should get a shot at some generic winnings, it’s an unfair characterization of the organization’s charitable activity or, for that matter, any charitable activity. 

Charity is, by definition, exclusive: Not everyone is eligible for it. But instead of considering the context of the Fearless Foundation program, the court likens the organization’s conduct to regular commercial activity, such as hiring employees, which it is not.

Scathing.

darryll k. jones