The ACR Project, Manhattan Institute, and the Buckeye Institute together filed an amicus brief with the 11th Circuit Court of Appeals, supporting American Alliance for Equal Rights in its challenge to the legality of the race-based contracting program maintained by the Fearless Fund family of entities. You can see the full brief, below.
The Fearless Fund appellees unapologetically choose with whom they are willing to contract and with whom they categorically refuse to do business based on race. Such plainly racial policies of exclusion violate one of the main surviving provisions of the Civil Rights Act of 1866, America’s very first civil rights law. Congress embedded these rights into the Fourteenth Amendment, assuring that they would be beyond constitutional challenge. Nonetheless, in this litigation, a district court classified the Fearless entities’ policy of contracting to invest solely with one race as “expressive activity” “intend[ed] to convey a particular message,” and so protected by the First Amendment. The district court refused to enjoin the policies on the basis that applying the Civil Rights Act of 1866 would “modify [the Fearless entities’] expression[.]” It similarly contended that a judicially conjured defense to Title VII employment-discrimination claims protected the Fearless entities’ non-employment contracting policy from violating the same provision.
The lower court grasped at straws to deny plainly justified injunctive relief. It was wrong to do so. We argue that the Court of Appeals should reverse the lower court’s decision and remand with instruction to enjoin pursuit of the discriminatory contracting policy.