Discrimination in Hiring is Protected Speech and Expression

[GURPS]

Georgia Federal Judge Rules Racially Discriminatory Contracting Is “Speech and Expression” Protected By 1st Amendment – Emergency Appeal Filed​

Emergency Motion for injunction pending appeal: “The district court said discriminatory contracting itself is protected speech. That line is one the Supreme Court has always been careful not to cross, as it would destroy the whole enterprise of antidiscrimination law…. But the district
court crossed it.”

Affirmative Action sure does make strange alliances. In this case, a desire to defend a grant program open only to black women may bring down the entire anti-discrimination legal infrastructure that has been in place for over 150 years, if a District Court ruling that racially discriminatory contracting is “speech and expression” protected by the First Amendment is not reversed.

The American Alliance for Equal Rights (AAER), a group formed by Ed Blum, whose Students for Fair Admissions won the Harvard affirmative action case, sued Fearless Fund in federal court for the Northern District of Georgia over a grant program open only to black women. The claim was brought under a post-civil war statute prohibiting discrimination in contracting, not under the Equal Protection Clause of the 14th Amendment (which arguably would not apply to a private investment company) or other discrimination statutes. You can read the Complaint and Motion for Preliminary Injunction.

Numerous civil rights groups filed Amicus briefs supporting the defendant and the black-woman-only grant program.

Under the controlling Eleventh Circuit authority of Coral Ridge Ministries media, donating money qualifies as expressive conduct and is entitled to First Amendment protection. That was not a 1981 case, but I have no reason to believe that the Eleventh Circuit would have decided the case any differently under Section 1981.

And the Plaintiff disagrees with that message. They want the Defendants to communicate a different message.

Well, that’s not the way it works. The First Amendment protects the Defendants’ right to decide what message they want to promote, and that’s what the First Amendment is all about.

So for those reasons, I’m going to deny the Plaintiff’s motion for a preliminary injunction and deny the Plaintiff’s motion for an injunction pending appeal.
As I said, I’ll get out a written order, hopefully, before the end of the week, but, in any event, as soon as I possibly can.

Wait, what? Did the judge really rule that racially discriminatory contracting is expression protected by the First Amendment? Can’t be, that goes against the entire body of law, and if true, would eviscerate a wide range of civil rights laws. So I awaited the written Order and decision before writing about this, surely he would correct that error when it came time for a formal ruling.



“Fearless Strivers Grant Contest”

 

[GURPS]

Black-Women-Only Grant Program Halted, 11th Circuit Issues Injunction Pending Appeal in Fearless Fund Case​

The Court of Appeals for the 11th Circuit just issued an Injunction Pending Appeal completely rejecting the District Court’s use of the First Amendment to excuse discriminatory contracting….

The plaintiff’s motion for an injunction pending appeal is GRANTED. An appellant may secure an injunction pending appeal if it establishes a substantial likelihood of success on the merits, irreparable injury in the absence of an injunction, and that the balance of the equities and public interest weigh in favor of an injunction. See Tandon v. Newsom, 141 S. Ct. 1294, 1297 (2021). For the reasons stated in the plaintiffs motion for an injunction, we conclude that the plaintiff has established that the defendants’ racially exclusionary program – the “Fearless Strivers Grant Contest” – is substantially likely to violate 42 U.S.C. § 1981.
The district court held that the plaintiff” clearly” has standing and has “clearly shown the existence of a contractual regime that brings this case within the realm of § 1981.” But the district court reasoned that Section 1981 was likely unconstitutional under the First Amendment as applied to the defendants. We disagree. The defendants do not provide “expressive services” or otherwise engage in “pure speech.” 303 Creative LLC v. Elenis, 143 S. Ct. 2298, 2318 (2023). Although the First Amendment protects the defendants’ right to promote beliefs about race, it does not give the defendants the right to exclude persons from a contractual regime based on their race. Runyon v. McCrary, 427 U.S. 160, 176 (1976).

Unlike the district court, our dissenting colleague concludes that the plaintiffs Section 1981 claim is unlikely to succeed because the organization is supposedly “bringing a§ 1981 claim on behalf of white members.” Our dissenting colleague reasons that “[t]he inclusion of Asian business owners, while a racial minority, does not cure the inclusion of white business owners.” We disagree. The Supreme Court has held that Section 1981 “was meant, by its broad terms, to proscribe 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). We find no support in our caselaw to limit the standing of a membership organization to file a Section 1981 claim because it has members of many different races.

 

[Clem72]

They won't let this one go, because otherwise who you want to sell a cake to or who you want to let buy your house or who your bank is willing to give loans to all become protected speech. Or am I misreading all this?