Private Law Theory

ABSTRACT
The Article considers whether a charity may engage in affirmative action by using race or other identity-based criteria in providing charitable assistance. In a groundbreaking ruling, American Alliance for Equal Rights v Fearless Fund, a divided panel of the Court of Appeals for the 11th Circuit forced a charity to stop awarding grants to Black women-owned businesses, finding that doing so likely violated the Civil Rights Act of 1866. If the 11th Circuit panel’s unprecedented interpretation is correct, it will upend decades of precedent in charity law, place at risk millions of dollars of charitable funds set aside for the benefit of racial groups, including at religious charities, and undermine the principle of philanthropic freedom, namely that charities exist as an alternative to government in support of pluralism, innovation, and private association.

Part I of the Article provides a legal map of the disparate rules that prohibit discrimination by state and private actors. The sources of anti-discrimination law include the Constitution, statutes, and the common law. The law operates, however, against a freedom to discriminate baseline. Unless a law takes that freedom away, the ability to discriminate, invidiously or positively, remains. Part II situates a private charity’s efforts to address the effects of discrimination within the legal landscape described in Part I. This Part argues that charitable remedial discrimination (or what the Article terms CRD) is legal and serves an important role within private philanthropy, allowing for private voluntary efforts to remedy the effects of discrimination without government interference. This part of the Article also argues that the Fearless decision is wrong as a matter of statutory interpretation: the 11th Circuit panel did not address the statute’s text, decades of precedent, the context and history of the 1866 Act, congressional intent in 1866 (or 1991 when the statute was amended), and would lead to absurd and unintended results. Although no law prevents CRD, Part III considers a First Amendment defense to CRD pursuant to the law of expressive association. This Part finds that based on Supreme Court and recent federal appellate court decisions, the First Amendment should protect CRD. This part also briefly addresses the need for guidance about how identity-based criteria may be used consistent with a charity’s mission. The Article then concludes that CRD is and should remain legal as a tool to help civil society reflect its equal opportunity ideals.

Colinvaux, Roger, The Legality of Charitable Remedial Discrimination (January 16, 2025).