Carter: Nonprofit Racial Remediation and Willy-Nilly Nonprofit Litigants
Counter-insurgents, Stephen Miller and Edward Blum
Stephen Carter has some interesting thoughts on Fearless Fund:
[T]he US Court of Appeals for the Eleventh Circuit granted a preliminary injunction against the Fearless Fund, a “venture capital fund that invests in women of color-led businesses.” And therein lies a tale.
Section 1981 has been of enormous importance over the years. It grounded, for example, the Supreme Court’s 1976 decision that although a nonsectarian private school is free to preach racial segregation, it can’t refuse to admit Black students. In 2020, the justices ruled unanimously that in order to prevail under the statute, a plaintiff must show that race was not only a factor, but the deciding factor, in the defendant’s refusal to do business. This is typically viewed as a difficult standard to meet, but when the Fearless Fund limited its contest on the basis of race, most of the plaintiff’s work was done.
. . .
Yet the Eleventh Circuit concluded that even if viewed as a remedial program, the Fearless Fund went too far in creating an “absolute bar” to White applicants. Maybe. But if the court is right, a lot more programs that are styled as remedial are at risk. For example, when I attended law school, I benefitted significantly from a scholarship for minority students run by a civil rights nonprofit. I’m not blind to the legal arguments against such programs, and I worry that the Supreme Court’s affirmative action decisions put them at risk
Which leads us to the aspect of the Fearless Fund case that’s garnered far fewer headlines. Let’s turn to the dissent authored by Judge Robin Rosenbaum. The dissent never reaches the merits of the discrimination claim. Instead, Judge Rosenbaum concludes that the plaintiffs lacked standing, a legal requisite to sue. The plaintiffs, she argued, suffered no actual injury from the Fearless Fund’s contest but instead engaged in mere “flopping on the field” — why can’t more jurists write so colorfully? — and the suit should, therefore, have been dismissed.
Rosenbaum points to a genuine problem. We suffer from a plentitude of associations and organizations, across the political spectrum, that appear to exist largely to file lawsuits willy-nilly. Whether and how we discern standing in such situations would therefore seem to be an important issue. Alas, the Supreme Court’s guidance on this issue might charitably be described as not entirely coherent — a difficulty that explains why one comes away from a reading of the discussions of standing by the Fearless Fund majority and the Fearless Fund dissent with the certainty that they’re both right.
I offered a friendly response to Carter in an email about that last part. We allow easy associational standing “willy nilly,” I said, because back in the day it was beneficial to our civil rights. Let’s not throw that baby out too soon. But his observation points to an amazing, if not troubling, phenomenon. Right wing counter-insurgents — like the American Alliance of Equal Rights and groups in favor of donor anonymity, for example — are now ruthlessly, and without a hint of shame or irony, wielding swords and shields forged during the civil rights era. Against civil rights. Even Section 1981 was meant to allow us in, not keep us out. Hell, donor anonymity was necessary to keep us from getting lynched. The counter-insurgents and the courts have de-contextualized those weapons and that has led to absurd results undergirded by pure sophistry.
darryll k. jones