Roger Colinvaux’s Amicus Brief In Fearless Fund Management, LLC

Arian Simone, Keshia Knight Pulliam and Ayana Parsons, general partners at Fearless Fund.

A few days ago, we blogged about the Council on Foundations and Independent Sector’s Amicus Brief arguing that the Fearless Fund has the right to make charitable grants in whatever manner it pleases because charitable grants constitute expressive activity protected by the speech clause of the First Amendment.  I thought, and I still think that argument is a bridge too far.  Because the government can’t subsidize via tax exemption discrimination it can’t engage in itself.  But our contributing editor, Roger Colinvaux’s brief provides greatly needed historical context.  And it suggests — I haven’t read it closely enough yet — a limitation on charity’s expressive conduct so that the Bob Jones Universities in the world cannot rely on an alleged free speech right to perpetuate rather than remediate racial discrimination.  The brief supports the notion that remediating the effects of racial discrimination is not itself racial discrimination.  

Fearless was launched in 2018 “to reduce racial and gender disparities in venture capital funding.” Doc. 59 at 6.2 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.

Exactly.  I have not been able to gather up enough strength to read Students for Fair Admission, honestly.  But the real fight is over the provision Roger cites above. Because Students for Fair Admission asserts that remediating discrimination through race conscious policies is itself discrimination.  That’s the fight. I have cited Roger’s regulation myself to argue that if charity includes efforts to reduce or eliminate racial discrimination as stated in the regulation — the proposition that SFFA necessarily disputes — it cannot also include the right to perpetuate racial discrimination by hate groups claiming tax exemption as a matter of First Amendment right.  We need to defend that position and Roger’s brief is a step in that direction.  By the way, that’s Keisha Knight Pulliam — famous for her role in the Cosby show years ago — in the middle.

darryll k. jones