Legal cases are rarely simply about the facts being argued in a particular instance; they are often designed to prove a certain point or set a specific precedent. Just as the infamous case of the pastry chef refusing to bake a wedding cake for a gay couple wasn’t actually about cake, the recent court ruling about the Fearless Fund blocking them from designating grant funds to Black women is just the tip of the iceberg of a broader vision certain legal activists have for society at large, one that brushes racial inequity under our collective rug.
For those of us who believe we cannot eliminate America’s racist past without talking about race, we need to pay attention to the broader strategy being invoked here even as we mourn the loss of the Fearless Fund’s grant program (for now, at least).
The Goal: Race Blindness
The objective of this case, and many others, is to fundamentally eliminate our ability to speak about race. As the Associated Press noted, besides the Fearless Fund, “Dozens of prominent companies have already been targeted, as well as a wide array of diversity initiatives, including fellowships, hiring goals, anti-bias training and contract programs for minority or women-owned businesses.” And while race may be a made-up concept designed to separate and destroy the fundamental bonds of humanity, it’s one that has prevailed for hundreds of years and led to irreparable harm. Our ability to speak openly about race and, on occasion, prioritize people of a particular racial or gender identity, even if as a strategy to ultimately move beyond it someday, is critical. There’s no path forward without reconciling the past.
If this legal community attacking our right to speak about race or gender has a better strategy that would catapult us to an equitable, race and gender-blind society, hallelujah. But for those of us who have to live in a world that wouldn’t let women open bank accounts without their husband’s permission until 1974, that wouldn’t let Black Americans drink from the same water fountains until 1964, nor attend the same universities, or buy property in the same neighborhoods, eliminating discussions of the long-standing impacts of policies divided by gender and race lands flat. It’s important to note as well that these challenges were by no means fixed during the civil rights era—for instance, a 2021 Freddie Mac study found that Black and Latinx-owned properties were twice as likely to be undervalued.
It now feels extremely ironic, though perhaps not disappointing, that white men who invented and benefited from racialized categories are now the first to be calling for their removal before actually removing the structural barriers to women and people of color in society that fundamentally cement their otherwise arbitrary categorization.
The Fearless Fund Case
In August of 2023, the American Alliance for Equal Rights sued the Fearless Fund, claiming that their grant program for Black women was discriminatory towards women of other racial backgrounds. In September, Fearless Fund responded, claiming the suit was invalid for four main reasons:
- That AAER didn’t actually have standing to sue since it was not an actual impacted party but just a political actor seeking to meddle;
- That donations are a form of political expression, and deserve the same First Amendment protections one receives whether we choose to donate to the Sierra Club or the NRA;
- That the supposedly impacted parties couldn’t prove “irreparable injury”;
- Nor does the balance of equities and public interest favor injunctive relief, as providing grants to Black women indeed helps advance society not just for those women but for all.
With regard to this final point, as the filing noted,
“The public has a strong interest in addressing manifest racial imbalances and encouraging expressive philanthropy; the grant program furthers these aims…it promotes the very goals that Section 1981 was enacted to advance: providing Black people with economic freedom—equal access to capital to build businesses, grow communities, and support families.” Furthermore, they note that “ Congress has stated ‘it is in the national interest to expeditiously ameliorate the conditions of socially and economically disadvantaged groups [such as] . . . Black Americans.’ 15 U.S.C. § 631(f)(1)(C)-(D).”
After a few rounds of wins and appeals by both sides, in a 2-1 ruling issued on June 3rd, a federal court of appeals rejected Fearless Fund’s appeal, dealing a significant blow to the organization’s grant program for Black women. By invoking an 1866 law intended to protect formerly enslaved people from economic exclusion, conservative activist-litigant Ed Blum has flipped the purpose of this law on its head. While Fearless Fund’s counsel has vowed to keep fighting, there are Black women today who tragically will not receive the funding they rightfully deserve.
What Are They So Afraid Of?
What makes this attack seem all the more preposterous is the sheer scale of the disparities faced by Black leaders, especially Black women. Compared to total VC flow, According to data from Digitalundivided, between 2009 and 2017 Black Women received 0.0006% of VC funding. At that rate, for every billion dollars in VC funds received by others, Black women received $6,000. If that figure matched US demographics broadly, their fair share would be more like $70M.
As the Fearless Fund filing noted, “Between 2014 and 2022, Black women received, on average, less than 2% of private funding.” The idea that $20k grants to Black women businesses with under $3M in revenue would even make a dent in this reality is laughable, at best, and certainly hard to imagine would justify a legal standard of “irreparable harm.” If anyone has concerns about disproportionate or unfair capital allocation with regard to race, they perhaps should start with the 98% of private funding that overwhelmingly goes to white men.
What’s Up Next
Ed Blum’s legal spearpoint, The American Alliance for Equal Rights (AAER), started off strong by ending affirmative action in twin Supreme Court cases levied against the admissions departments of Harvard and the University of North Carolina Chapel Hill. Since then, Blum has pressured law schools to change their admissions policies and overturned California rules meant to improve diversity in the workplace. He described the purpose of his work to the New York Times: “Like the vast majority of Americans, I believe that an individual’s race and ethnicity should not be used to help them or harm them in their life’s endeavors.”
While Blum is perhaps the movement’s most recognized leader, he is one of many actors engaged. As Slate noted, “Blum is not some humble David going it alone in his battle against Goliath, but the well-off beneficiary of a powerful infrastructure of right-wing funders, think tanks, and lawyers.”
A litany of other legal activists and organizations, such as the former Trump advisor Stephen Miller, have launched a broad attack on American systems with funds from what Mother Jones called the “dark money ATM of the right.” Educational institutions, the Equal Employment Opportunity Commission, financial institutions, and more have been targets.
This is a lot of time and expense levied simply to prevent us all from taking on issues of systemic inequity, spoken under the guise of claiming we are ready for a race and gender-blind society. We all want fresh solutions, but knocking down already incredibly limited systems for addressing the chronic underinvestment in Black women is surely not the answer.
For some, DEI has practically become a four-letter word, and this is quite dangerous. Scholar Ibrahim X. Kendi wrote about the Supreme Court cases on affirmative action more recently, and also sums up the dangers of eliminating conversations about race quite well in his 2019 work How to Be An Anti-Racist: “Assimilationists believe in the post-racial myth that talking about race constitutes racism, or that if we stop identifying by race, then racism will miraculously go away. They fail to realize that if we stop using racial categories, then we will not be able to identify racial inequity. If we cannot identify racial inequity, then we will not be able to identify racist policies. If we cannot identify racist policies, then we cannot challenge racist policies. If we cannot challenge racist policies, then racist power’s final solution will be achieved: a world of inequity none of us can see, let alone resist. Terminating racial categories is potentially the last, not the first, step in the antiracist struggle.”
The late Italian author Umberto Eco, in his 1995 essay, Ur-Fascism, drew on his experiences as a child in Mussolini’s fascist Italy that feel relevant for America today. Eco notes that an impoverished vocabulary reduces our capacity to describe who we are, preventing us from being able to fully discuss the systemic obstacles we may experience. And in light of the massive lack of investment in Black women, this seems like a topic well worth addressing, with the full clarity, nuance, and most importantly, action it deserves.
Read the full article here
