What a concept! Thanks, Judge Thrash!
The American Alliance for Equal Rights (AAER), sued Fearless Fund, whose mission is to “bridge the gap in venture capital funding for women of color,” in the Northern District of Georgia over its grant program open only to black women. In rejecting the claim and the request for an injunction, Senior Judge Judge Thomas W. Thrash, Jr. wrote in 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. 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.
Judge Thrash’s subsequent formal Order Denying Prelminary Injunction repeated the same reasoning.
The problem is not necessarily the result, but his shocking justification for it. The claim was brought under a statute prohibiting discrimination in contracting, not under the Equal Protection Clause of the 14th Amendment, does not apply to a private investment company or other discrimination statutes like the 1965 Civil Rights Act. Read the Complaint and Motion for Preliminary Injunction. The plaintiff group is another creation of Ed Blum, who is waging a long-term war against the used of discrimination on te basis of race as a remedy for discrimination on the basis of race. This line of attack could be fatal to race-based scholarship funds among other programs, if it were to succeed: programs like the Fearless Fund’s have been simply accepted without serious challenge for decades, but the Supreme Court striking down race-based college admissions has made them vulnerable.
However, Judge Thrash’s solution to that problem creates worse problems. If racially discriminatory contracting is “speech and expression” protected by the First Amendment,” as Prof Jacobson writes on Legal Insurrection, it would “bring down the entire anti-discrimination legal infrastructure that has been in place for over 150 years.” It certainly looks like that to me, too. If a discriminatory grant program is just speech, why wouldn’t a discriminatory public accommodation “program” that doesn’t let blacks sit at a lunch counter be First Amendment-guaranteed speech as well? After all, it would plainly state the opinion of the owners that they don’t like black people.
Blum’s group filed filed an Emergency Motion with the 11th Circuit seeking an administrative injunction on the program, essentially over-ruling the District Court. Yesterday, the Court of Appeals for the 11th Circuit granted that motion, issuing an Injunction Pending Appeal. It also included disapproval of Thrash’s use of the First Amendment to excuse discriminatory contracting, saying in part,
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).
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Sources: Legal Insurrection 1, 2
Ethics Alarms 
There’s long been a tension between anti-discrimination laws and the First Amendment, especially Freedom of Association. Our society recognized generations ago that the baseline of freedom our governments were supposedly established to protect, could not be guaranteed unless there were some limits placed on the private right to discriminate. If powerful individuals or cartels of individuals could use their free association rights to prevent other individuals from making a living, finding housing, buying food, etc, then the freedom of those individuals was rendered essentially meaningless.
However, I don’t think there’s ever been a real public consensus on what principles should dictate the balance between the right to free association and protection against unfair discrimination. It’s something that’s desperately needed. It looks like Judge Thrash, like Justice Jackson, would put the government in the role of deciding, based on history or statistics or who knows what, which groups should be deemed worthy of protection from discrimination and which should not. The fact Judge Thrash tries to camouflage this principle behind an ad-hoc Free Speech argument suggests to me he knows that principle would not be popular. It’s long past time we dragged all this out into the open and decisively cleared the air.
Nearby Augusta National Golf Club comes to mind. Maybe if this case stands, them fellers can kick out all them black men and women members and go back to being a good old white boys club. (Cue a Rebel yell.)
And let’s hear a rousing version of “Dixie.” Look away!
Not a lot to add on this one. It sums up the state of racial discrimination laws pretty well. If all of these programs where only (not white) groups are allowed are legal, then discriminating based on race is legal. You might as well toss out the whole Civil Rights Act and go back to the days of “No Blacks Allowed” signs on private businesses. I’m not surprised the judge ended up looking like a fool trying to square the ‘good racism’ circle.
I can’t wait for the grant programs which (1) require that you have been discriminated based on your race and (2) require a documented condition like “women of color” of which the applicant does not match and (3) prohibit someone who would qualify to apply for any other program which explicitly favors the applicant race while prohibiting another.
Ohhh… You’re ‘rainbow’. Well, there’s a rainbow grant application over there. This here grant is for all those racially excluded from the rainbow grant…. What? You mean to tell me that means only heterosexual white males fit this grant? How about that. What a coincidence!