The Myth of Strict Scrutiny Fatality and Fearless Foundation

Today’s oral argument before the Eleventh Circuit Court of Appeals was . . . well . . . discouraging.  I will post the recording  tomorrow when it becomes available.  The argument focused on “associational standing” and the right to free speech.  I have remarked before that the argument that an exempt organization may discriminate by race in grant making as an exercise of free speech is a bridge way too far.  The better approach would be to defend the proposition that what Fearless Fund is doing is a remedial measure to eliminate the effects of discrimination.  If the remediation constitutes discrimination itself, then lets defend it as something justified by 400 years of racial discrimination.  It is a fallacy perpetuated in law schools perhaps that strict scrutiny means that the proponent of remediation invariably loses.  It might be a hard row to hoe but we oughta defend remediation in the context of exempt organizations who work to “eliminate prejudice and discrimination.” The regulations clearly indicate that remediation of racial discrimination is a charitable purpose.  Reliance on the First Amendment expresses a sort of desperation to me.  And a fear that strict scrutiny will be fatal, invariably.  But here is an excerpt from a quantitative analysis of strict scrutiny:

In recent years, however, this traditional understanding of strict scrutiny’s inevitable deadliness has been challenged, most notably by Justice Sandra Day O’Connor. In Adarand Constructors u. Pena, O’Connor’s majority opinion expressed the “wish to dispel the notion that strict scrutiny is ‘strict in theory, but fatal in fact.”‘  The fact that strict scrutiny applies “says nothing about the ultimate validity of any particular law; that determination is the job of the court applying” that standard. In Grutter u. Bollinger, O’Connor’s opinion for the  Court turned wish into action and upheld an affirmative action policy under strict scrutiny. Rather than create insurmountable hurdles that  indiscriminately invalidate  laws, O’Connor argued, the “fundamental purpose” of strict scrutiny is to “take relevant differences into account.” In short, when applying strict scrutiny, “[c]ontext matters.”

The article completes the quantitative analysis and makes the strong case that strict scrutiny has never been “fatal in fact” and that cases upholding laws against strict scrutiny challenge may be in the minority but are hardly “outliers.”  I think it would be better to accept the challenge to remediation efforts head on rather than try to justify what some view as discrimination  as a protected expression.  Why even implicitly or explicitly concede that remediation efforts everywhere constitutes discrimination because the Court has said it does in higher education?  The logical conclusion of the First Amendment justification is too easily dramatized.  Thus, from Appellant’s Brief in American Alliance for Equal Rights v. Fearless Fund Management, LLC

Imagine a company that mainly invests money in other businesses (loans, venture capital, and the like). Assume its owners have strong, profoundly racist views on immi- gration, civil rights, and what it means to be “American.” So their business refuses to invest money in any business unless the owners are white. This decision, according to the company’s website, is meant to “convey a particular message”: that “‘[white]-owned businesses are vital to our economy.’” R.115 at 15. And the company “carries out its commitment to that group by supporting” only white entrepreneurs. Id.

This hypothetical doesn’t require much imagination. It’s what was happening in 1866, and precisely why Congress passed §1981’s ban on racial discrimination in contracting. See generally Jones v. Alfred H. Mayer Co., 392 U.S. 409, 422-36 (1968). And it’s what Fearless is doing today. Though Fearless swaps “white” for “black,” its racial dis- crimination is no less illegal under §1981—a “broad” law that, as Justice Thurgood Marshall once explained for the Court, “proscribe[s] discrimination in the making or enforcement of contracts against, or in favor of, any race.” McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 295 (1976). And Fearless’ race-based contracting is not protected by the First Amendment any more than the hypothetical company above. Segregationists tried this challenge to §1981 already. They lost. See Runyon v. McCrary, 427 U.S. 160, 175-76 (1976).

This Court already understands all this, which is why it preliminarily enjoined Fearless from operating its discriminatory Strivers Grant Contest. The Alliance is “substantially likely” to prove, according to that motions panel, that the district court erred when it denied a preliminary injunction be- low. Id. This Court should now reiterate that ruling, enforce §1981 as written, and order the district court to enter a preliminary injunction.

darryll k. jones