Colinvaux on “Charitable Remedial Discrimination”

Colinvaux is still thinking about the impact of Students for Fair Admissions on what he refers to as “charitable remedial discrimination.”  I am happy he is because I am not sure I can think about it with the necessary degree of objectivity.  His arguments force us to think harder.  I am still attracted to his argument, for example, that charity is, by definition, exclusionary.  By that I think he means tax exemption necessarily excludes because beneficiaries must be members of a class burdened by a common malady that does not effect everyone.  Just because the common characteristic may be more often found in a certain race, gender, orientation, or identity does not make charitable efforts to lift those burdens discrimination.  

But I don’t like a new phrase he uses to defend organizations, like the Fearless Fund, that exist to remedy the effects of racial and gender discrimination, and therefore limit their beneficial efforts to Black women.  In his new paper, Colinvaux calls such efforts “charitable remedial discrimination.”  The phrase makes me cringe. Instinctively to my mind discrimination can never really be a remediation.   “Remedial discrimination” feels oxymoronic. 

I agree, though, that remediation — historically referred to with sanitized language such as “affirmative action” before the right wing successfully turned that phrase into a pejorative — can be a legitimate charitable purpose notwithstanding Students for Fair Admission.   We have always mislabeled remediation.  In hindsight, labeling remediation efforts “affirmative action,” “diversity” or “diversity, equity, and inclusion” only set those efforts up for inevitably successful constitutional challenge. The sanitized words made us feel better but decoupled remediation from 400 years of historical context.  Without context, remediation becomes equivalent to discrimination. “Remedial discrimination” suggests an intolerable equivalency that almost makes me want to apologize or at least explain. In fact, Students for Fair Admission is based on the notion that remedial discrimination is just discrimination. Once remediation is equivalent to or even associated with discrimination, it is hardly surprising that remediation is treated just like discrimination.  

Here is the abstract to Colinvaux’s “The Legality of Charitable Remedial Discrimination:”

The Article considers whether a charity may engage in affirmative action by using race or other identity-based criteria in providing charitable assistance. Until recently, charities enjoyed the freedom to determine their mission and render appropriate charitable assistance, including by taking positive race conscious steps to fix the harmful effects of racial discrimination. In a groundbreaking ruling, however, American Alliance for Equal Rights v. Fearless Fund, a divided panel of the Court of Appeals for the 11th Circuit forced a charity to stop awarding grants to Black women-owned businesses, finding that doing so likely violated the Civil Rights Act of 1866. If the 11th Circuit panel’s unprecedented interpretation is correct, an interpretation now backed rhetorically by the Trump Administration, it will upend decades of precedent in charity law, place at risk millions of dollars of charitable funds set aside for the benefit of racial groups, including at religious charities, and undermine the principle of philanthropic freedom, namely that charities exist as an alternative to government in support of pluralism, innovation, and private association.

Part I of the Article provides a legal map of the disparate rules that prohibit discrimination by state and private actors. The sources of anti-discrimination law include the Constitution, statutes, and the common law. The law operates, however, against a freedom to discriminate baseline. Unless a law takes that freedom away, the ability to discriminate, invidiously or positively, remains. Part II situates a private charity’s efforts to address the effects of discrimination within the legal landscape described in Part I. This Part argues that charitable remedial discrimination (or what the Article terms CRD) is legal and serves an important role within private philanthropy, allowing for private voluntary efforts to remedy the effects of discrimination without government interference. This part of the Article also argues that the Fearless decision is wrong as a matter of statutory interpretation: the 11th Circuit panel did not address the statute’s text, decades of precedent, the context and history of the 1866 Act, congressional intent in 1866 (or 1991 when the statute was amended), and would lead to absurd and unintended results. Although no law prevents CRD, Part III considers a First Amendment defense to CRD pursuant to the law of expressive association. This Part finds that based on Supreme Court and recent federal appellate court decisions, the First Amendment should protect CRD. This part also briefly addresses the need for guidance about how identity-based criteria may be used consistent with a charity’s mission. The Article then concludes that CRD is and should remain legal as a tool to help civil society reflect its equal opportunity ideals.

The words we use to describe effort against a malady defining a necessarily limited charitable class also suggests the propriety or impropriety of the effort.  Somehow, the words signal the answer.  We should never have agreed to use sanitized words — affirmative action, diversity, or DEI — in place of “undoing 400 years of slavery and Jim Crow.”  I think what Colinvaux means is that undoing discrimination is not discrimination, itself.  The logic is indisputable. But the label applied to the logic suggests the wrong answer.  

darryll k. jones