Amicus Brief: American Alliance for Equal Rights v. Fearless Fund Management LLC

The Fearless Fund runs the “Strivers Grant Contest,” which awards $20,000 and other benefits “only to black females.” Earlier this year, the American Alliance for Equal Rights sued Fearless, claiming its racially discriminatory contest violated §1981. Fearless raised several arguments in reply—claiming, for instance, that the Alliance did not have standing and that the contest was a valid “affirmative action” program—but it also raised a First Amendment defense. According to Fearless, its discriminatory contest was really an act of “expressive association.” Although the U.S. Supreme Court rejected that argument when segregationists made it, Runyon v. McCrary (1976), Fearless won on it in the district court in Georgia.

The Alliance sought an injunction pending appeal, which a split panel of the Eleventh Circuit granted. The court concluded that the Alliance had “clearly shown the existence of a contractual regime,” which brought the case “within the realm of §1981.” The court then rejected Fearless’ First Amendment argument, emphasizing that the Constitution “does not give [Fearless] the right to exclude persons from a contractual regime based on their race.” The case is now on regular appeal on the merits of the district court’s ruling.

MI joined the American Civil Rights Project and Buckeye Institute on an amicus brief supporting the Alliance and arguing that §1981 bars racially discriminatory contracting and that there’s no applicable “affirmative action” defense.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

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