Colinvaux Files Amicus Brief On The Use Of Race In Awarding Charitable Grants

Brief of Professor Roger Colinvaux as Amicus Curiae in Support of Defendants-Appellees and Affirmance (American Alliance for Equal Rights v. Fearless Fund Management (11th Cir. No. 23-13138): 

Abstract
The Brief relates to a lawsuit alleging that a charity's use of race to award charitable aid violates section 1 of the Civil Rights Act of 1866. The Brief argues that the case is not just about the right-to-contract provisions of the Civil Rights Act but has much wider implications. At stake is potentially significant harm to charitable organizations and their freedom to fulfill their missions to further societal good under the broader law of charity. A ruling that implicates a charity’s right to exercise its well-rooted freedoms to determine its mission or advance social welfare by eliminating the effects of racial discrimination could have chilling effects on the more than 1.3 million charities registered in the United States and the many more millions of people they serve. The Brief encourages the Court to be mindful in any ruling of the role of charitable organizations in American society, the regulatory environment under which charities operate, the vast potential for uncertainty relating to providing charitable assistance to promote social welfare without risk of prosecution, and the chilling of lawful charitable speech to the detriment of civil society.

Summary of Argument
Fearless Foundation (“Fearless”) is a charity. ... Fearless was launched in 2018 “to reduce racial and gender disparities in venture capital funding.” Fearless’s stated mission is to “bridge the gap in venture capital funding for women of color founders building scalable, growth aggressive companies.” As part of that mission, Fearless awards “grants and mentorship to Black women-owned small businesses, which historically have been disadvantaged in their ability to obtain funding.” Eliminating racial discrimination and prejudice has long been considered a lawful charitable purpose. 26 C.F.R. § 1.501(c)(3)-1(d)(2) (providing that the term “charity” includes the “promotion of social welfare by organizations designed to . . . eliminate prejudice and discrimination”). Accordingly, charities seeking to eliminate prejudice and discrimination may use race as a component of their charitable mission and provision of financial assistance.

Ignoring this important historical and regulatory context about charities, Plaintiff-Appellant American Alliance for Equal Rights (the “Alliance”) seeks to reframe this case to be about alleged “racial discrimination in contracting.” But this case fundamentally concerns a charity’s freedom to decide to whom it provides aid (and in what form) in furtherance of its charitable mission—a core part of a charity’s First Amendment expressive rights. Although the Alliance admits that Fearless could “donate” money to whom it chooses as an expressive act protected by the First Amendment, the Alliance takes the position that Fearless’s “contest” is not protected expressive conduct because it is not a donation. The Alliance fails to recognize that charitable aid takes many forms, including cash payments, in-kind assistance, grants, loans and investments, most of which have contract-like features. Critically, the form a charity’s aid takes, whether as a “donation,” a “grant” or other type does not determine whether it is expressive conduct. Rather, what matters is the connection between the aid and the expression of a charity’s mission.

To be sure, not all charitable spending or contracting necessarily is expressive of mission. Charities can and do engage in purely commercial transactions that are not expressive in nature, such as contracting with vendors to assist the charity in performing its operations. But the manner of fulfilling a charity’s mission, including the choice of who benefits and why, is a core expressive activity protected by the First Amendment.