The Eleventh Circuit Ignores The Supreme Court And Its Own Precedent To Stick It To Black Women
When I posted my defense of the Supreme Court's 303 Creative decision, a common criticism was that the principle the decision vindicated was likely to only be upheld in situations where discriminatory social values were being advanced and not situations where it was inclusive ones. While I don't think that's a reason to criticize the 303 Creative decision - it would have been much worse for everyone if the Supreme Court had NOT upheld the principle that the government could not override individual conscience to compel certain expression - at the same time, the fear embodied in that criticism has also been born out, most recently by the Eleventh Circuit in the Fearless Fund case (American Alliance for Equal Rights v. Fearless Fund Management, LLC), a case that helps illustrate why that principle of protecting expression, even when discriminatory in its effect, is so important to protect.
The Fearless Fund is a 'venture capital fund that invests in women of color-led businesses.'" From the decision:
Its stated mission is to bridge the gap in venture capital funding for women of color founders building scalable, growth aggressive companies." Pursuit of that mission, Fearless supplies grants to businesses under its Foundation" arm. Fearless makes those grants on the basis of a competitive application process. The Fearless Strivers Grant Contest" offers four winners $20,000 apiece and digital tools to assist with business growth, as well as mentorship. Importantly for our purposes, the contest is open, by its own terms, only to black females who are . . . legal U.S. residents." More particularly, to qualify for the competition, a business must be at least 51% black woman owned." [p2-3]
The Fund ran a series of contests to decide where to award its money, and after it announced the fourth one, a group of businesses not owned by black females came together to sue, basically alleging that the contest rules governing who could be considered for a grant award amounted to an illegally discriminatory contract. [p.5]. The Fund put forth several defenses, but the one focused on here is that it couldn't have been illegal to run the contest this way because the First Amendment should protect the Fund's right to choose where to direct its resources. Unfortunately, the court ruled otherwise, and enjoined the Fund from running its contest as it planned.
And it ruled otherwise by ignoring or misapplying several applicable precedents, including 303 Creative. The crux of 303 Creative is that the state goal in minimizing discrimination could not override an expressive freedom. But the Eleventh Circuit instead invoked the case as being about determining the need to differentiate between status and message" in deciding whether anti-discrimination law should prevail or not. That framing, however, wasn't what the case was about; it was just what helped the Supreme Court recognize that what the Colorado anti-discrimination law was attempting to do was control what could be expressed. And it still said no to it.
But rather than take from 303 Creative its speech protective holding, the Eleventh Circuit used that status-versus-message language as an invitation to get mired in drawing the difference between a discriminatory act, which would not be protected, and discriminatory expression, which would be. It complained that the distinction could be hard to draw," but what is so alarming about its decision is that it barely tried. Its lazy reasoning completely overlooked the necessary degree of protection expressive choices, even discriminatory ones, have largely been afforded, by both the Supreme Court and even itself.
For instance, conspicuously missing from its analysis is any reference to the case Boy Scouts of America v. Dale. In that case the Supreme Court upheld the right of the Boy Scouts to exclude homosexual members, determining that the NJ anti-discrimination law violated the Boy Scouts right of expressive association. Unlike in even 303 Creative this case directly allowed discrimination based on status, so it seems especially weird that the case is omitted from the Eleventh Circuit's discussion, since what is at issue in this case is the Fund's right to choose with whom to associate as part of its expressive mission.
But even if one could argue that Dale is a bridge too far, because it did allow status-based discrimination, what other cases have instead focused on is how the discriminatory act in question needs to be evaluated based on its own expressive qualities in order to determine whether anti-discrimination law could trump it or not. That's what the Supreme Court did in 303 Creative, and also Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, another case that the Eleventh Circuit also gave short shrift to, and seems to have misunderstood. In that case the Supreme Court held that parade organizers were under no obligation to include people with views they did not share in their parade. But again the Eleventh Circuit missed the forest for the trees, considering it yet another case pivoting on status-versus-message and ignoring how it was ultimately about protecting the ability to express a message.
To the Eleventh Circuit, the fact that the Fund's contest conditioned eligibility to receive funds based on race, and did this by contract, apparently trumped any expressive interest in choosing to have that condition. It analogized the exclusion to schools refusing to admit black children, or employers firing people based on race.
The fact remains, though, that Fearless simply-and flatly-refuses to entertain applications from business owners who aren't black females." If that refusal were deemed sufficiently expressive" to warrant protection under the Free Speech Clause, then so would be every act of race discrimination, no matter at whom it was directed. And on Fearless's theory, the more blatant and rampant the discrimination, the clearer the message: To take just one particularly offensive example, surely a business owner who summarily fires all his black employees while retaining all the white ones has at the very least telegraphed his perspective on racial equality. [p.24]
While such acts would be difficult to defend, they have little relationship to what happened here, and the court's warning that the Fund's position risks sowing the seeds of anti[-]discrimination law's demise" is overwrought, because it is premised on a fundamental error. Because every act of discrimination is a reflection of an expressive choice, the Eleventh Circuit has mistakenly construed that all expressive acts with discriminatory qualities must be understood as discriminatory, rather than expressive. But, as described above, that is not what the Supreme Court, or its own jurisprudence, has taught. The inquiry must go deeper to look into how anti-discrimination law is bearing on the ability to express a view. In 303 Creative it was bearing on the expressive act of creating a website, in Hurley a parade. Here, it was how the Fund wanted to spend its money, but the Eleventh Circuit had to ignore its own precedent in order to fail to recognize how anti-discrimination law was now chilling that expressive act.
The district court also cited our decision in Coral Ridge Ministries Media, Inc. v. Amazon.com, Inc., 6 F.4th 1247 (11th Cir. 2021), for the propositions (1) that donating money qualifies as expressive conduct" and (2) that except in perhaps the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not want to support." Coral Ridge is triply inapposite. First, our decision there had nothing to do with race discrimination, and Supreme Court precedent indicates that prohibitions on race discrimination are uniquely resistant to First Amendment challenges. Second, for reasons already explained, Fearless isn't simply donating money; it's orchestrating a bargained-for exchange in which both parties obtain valuable benefits and undertake meaningful obligations. Finally, Fearless isn't being compelled to subsidize speech"; rather, the question here is whether Fearless's contest ought to receive First Amendment protection by virtue of its rule excluding non-black entrants. Coral Ridge has nothing useful to say about that. [fn 7]
Coral Ridge may not have involved racial discrimination, but it was a case where the Eleventh Circuit itself recognized how choosing how to spend money is expressive. From that case:
The parties do not dispute that donating money qualifies as expressive conduct. Indeed, it is bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support." Harris v. Quinn, 573 U.S. 616, 656, 134 S.Ct. 2618, 189 L.Ed.2d 620 (2014).
And it remained protectable expression even when applied in a way that may have been discriminatory, only this time religiously. Also from Coral Ridge:
Hurley is analogous to this case in that Coral Ridge's proposed interpretation of Title II would violate the First Amendment. In the same way that the Council's choice of parade units was expressive conduct, so too is Amazon's choice of what charities are eligible to receive donations through AmazonSmile. Applying Title II in the way Coral Ridge proposes would not further the statute's purpose of secur[ing] for all citizens the full enjoyment of facilities described in the Act which are open to the general public." United States v. DeRosier, 473 F.2d 749, 751 (5th Cir. 1973). It would instead modify the content of [Amazon's] expression"-and thus modify Amazon's speech itself"-by forcing it to donate to an organization it does not wish to promote. See Hurley, 515 U.S. at 578, 573, 115 S.Ct. 2338. This we cannot do. The law is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government." Id. at 579, 115 S.Ct. 2338.
By summarily dismissing the expenditure of resources in this case here as an expressive act, the Eleventh Circuit has now chilled what expressive values can be advanced, and with discriminatory effect harming the very same people anti-discrimination laws were ostensibly supposed to protect.