Equal Protection Project Influence Reflected in Court of Appeals “Fearless Fund” Antidiscrimination Ruling

We have been following the “Fearless Fund” case out of Atlanta since a Georgia federal district (trial-level) court judge ruled, bizarrely, that racial discrimination can be “protected speech” under the First Amendment and, therefore, constitutional.

The case concerned a hedge fund that provided small business grants in the form of a contest, as long as you were a Black woman; others need not apply. The Plaintiffs argued that a federal statute, 42 U.S.C. § 1981, which has prohibited racial discrimination in contracting since 1866, was violated by Defendants’ racially discriminatory grant contest: Georgia Federal Judge Rules Racially Discriminatory Contracting Is “Speech and Expression” Protected By 1st Amendment – Emergency Appeal Filed:

I was floored when I read the Judge’s comments and reasoning, which provided in pertinent part:

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….

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.

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….

The 11th Circuit Rules the Racially Discriminatory Contest Violates Federal Law, and Agrees with EPP that a Rule to the Contrary Would GUT Existing Antidiscrimination Law

This is a "how it started" and now "how it ended" type of article. You have to read the entire article to get the gist of how the case progressed through the courts and the importance of the small law firms and conservative legal organizations (such as the EPP) who take on the task of fighting the "big battles". This was a big win here.

It's worth the read to see how the left tries to legalize discrimination through DEI programs and sympathetic DEI judges.

racial discrimination can be “protected speech” under the First Amendment and, therefore, constitutional. . .

This is, of course, true. How could outlawing a personal inclination or opinion in itself not be a violation of free speech or freedom of association?

That doesn't make it necessarily nice or consistent with our moral duty to be charitable. But to be sane, there has to be a distinction between a crime of violence or theft with a racial or ethnic or religious pretext and a social slight or hiring decision.

It's insanity to try to prevent people from spending their time, their own money, or their own company's money, according to their own preferences.

“This is, of course, true. How could outlawing a personal inclination or opinion in itself not be a violation of free speech or freedom of association?”

Yes, but we have laws against discriminating against people due to their race and your personal inclinations. A person can have their opinion but cannot disqualify an entire race or sex from applying for a job position just due to those qualities.

A person can have their opinion but cannot disqualify an entire race or sex from applying for a job position just due to those qualities.

I think the idea that government can create peace and happiness by telling employers how to spend their own money has been a spectacular failure in both the public and private sectors. Ask employers. Ask customers. Ask yourself what it's like to use the subway system in New York City.

And as I mentioned, it fails on Constitutional grounds right out of the box.

Christian charity is due every man. But it means nothing--and is ineffective--when the State tries to make itself the judge of necessarily personal transactions like hiring.

We have obviously unqualified people being hired because of the presumption that certain favored racial minorities and females deserve to be first in line--and automatic lawsuits against the employer when they have to be let go. And we have those with better skills and better personalities for the job getting excluded because they are not part of the state-favored group.

This is all because governments--those with the least experience in the marketplace--think they are qualified to judge job qualifications there.

Let employers gain or lose based on how well they assess applicants of whatever race, color, or religion. In real life, they learn fast. And when they don't learn, they're the ones left in the dust because they paid more than they would have with a wider applicant pool and an open mind.

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