Written by Allison Wiltz for Medium | https://allyfromnola.medium.com/
This is a reprint.
Programs designed to mitigate disparities have a target on their back
Since the dawn of American society, opportunities have been unfairly allocated. Only White men could own property, vote, or hold public office, and the vast majority of Black people were enslaved when the nation was founded. While the country has progressed since then, it has failed to shed the inequality that initially marred its character. That’s because any effort to mitigate racial disparities is met by rancorous opposition from those who claim to level the playing field is unfair. Consider, for instance, the recent suspension of the Fearless Fund, an Atlanta-based venture capital firm supporting Black women entrepreneurs. Deemed racially discriminatory by a conservative group, the American Alliance for Equal Rights. This decision underscores the mockery of using civil rights language to attack programs designed to combat discrimination.
In a 2–1 ruling, justices sided with Blum, who claimed that the Fearless Fund grant program violated “section 1981 of the 1866 Civil Rights Act, which prohibits discrimination on the basis of race when enforcing contracts.” The irony rests in the decision to use laws designed to shield Black Americans from explicit racial discrimination to justify depriving them of opportunities. Stripping Black Americans of opportunities is certainly not what the crafters had in mind. Congressman John A. Bingham of Ohio, the primary author of the first section of the 14th Amendment, said, “If we are going to readmit the ex-Confederate states, we must ratify an amendment like this one to prevent them from abusing the rights of African Americans and white Unionists.”
The problem lies in the bad-faith conservative-driven argument that conflates positive with negative discrimination. For instance, imagine you have been tasked with making decisions based on a blueprint for a new community center. You can select an option that includes only a staircase entrance, which would negatively discriminate against physically disabled people or one that provides a ramp so that all people, regardless of their physical abilities, can enter the building. This is an example of positive discrimination. Conservatives who claimed the Fearless Fund was discriminatory for allocating funds exclusively to Black women seem to misrepresent positive discrimination as negative. In doing so, they’ve set a dangerous precedent, one that paves the way to portray any program or policy alleviating discrimination as discriminatory, hampering efforts to mitigate lasting racial disparities.
In the 11th Circuit appeals case, Judge Robin Rosenbaum provided a dissenting opinion that further illuminated the weaknesses in their argument. While the Fearless Fund was “designed to help Black women in the business world where they are grossly underrepresented as business owners,” Rosenbaum claimed the legal group was only “flopping on the field.” Their case was an effort to “manufacture an injury to allow American Alliance” an opportunity “to challenge the contest.” None of the members actually applied for the grant. How, then, can they claim they were discriminated against? Discrimination must impact real people.
Furthermore, they failed to demonstrate that applicants were “able and ready,” the legal standard to justify a discrimination case. “The plaintiffs failed to show they had concrete plans to engage in the relevant conduct even if permitted to do so.” For instance, they did not sue to participate in the Fearless Fund, exposing their true intent to dismantle this program rather than ensure people have equal opportunities to participate.
This recent wave of attacks on Black Americans’ access to opportunities was primed by the Supreme Court’s decision to ban affirmative action policies. Indeed, Edward Blum, the same conservative activist who worked for years to discredit and abolish affirmative action policies, is also behind the push to axe the Fearless Fund. While many view civil rights protections in this country as a sturdy brick wall built by past generations’ tireless efforts, men like Blum have spent their careers slowly chiseling away at these protections. Alexandra Olson wrote in the Associated Press, “The Reconstruction-era law was originally intended to protect formally enslaved people from economic exclusion, but anti-affirmative action activists have been leveraging it to challenge programs intended to benefit minority-owned businesses.”
Last year, the court blocked the Fearless Fund. Still, the appeal court’s decision reaffirmed this rejection under the premise that a program designed to benefit Black women exclusively is discriminatory. This perspective overlooks the routine discrimination that Black people experience in the banking industry and America more broadly. This case is also reminiscent of the conservative effort last year to block The Abundant Birth Project, which offered services to Black and Pacific Islander expectant mothers to mitigate the high rate of maternal mortality in California. Once again, conservative lawyers made the argument that exclusively helping these racially marginalized expectant mothers was discriminatory, even though these groups are disproportionately victims of maternal mortality.
Let that marinate. Conservatives attacked a program designed to ensure Black students receive equal educational opportunities, another that mitigated maternal mortality among Black expectant mothers, and now they’re attacking business grants allocated to Black businesswomen — it’s clear they’re misusing civil rights legislation, turning it on its head. While the American Alliance for Equal Rights claims to care about fairness, they are disinterested in the injustice at the heart of our society — the systematic racism Black people experience that deprives them of an equal slice of the American pie. As a result, their efforts are singularly focused on attacking programs designed to mitigate racial discrimination.
The pattern is clear. These conservative activists first deny that any racial discrimination exists. This systematic denial enables them to make the argument that any effort to mitigate racial disparities is unnecessary. Research shows Black people experience racial discrimination in the banking industry. For instance,” African Americans were 2.7 times as likely as whites to be denied a conventional mortgage.” Another study showed that “Black-owned businesses received loans that were approximately 50% lower than observational similar White-owned businesses.” Their denial enables them to oppose programs designed to mitigate lasting disparities by calling these programs discriminatory rather than acknowledging racially disparate conditions.
America is not a country where citizens receive equal opportunities. And yet, the constant attacks on Black Americans” efforts to level the scale demonstrates how difficult it is to make progress in a country in denial about its problems. The appeals court, like the Supreme Court’s affirmative action decision, set a dangerous precedent, one where White conservatives will continue to attack programs designed to mitigate racial disparities by claiming such programs are discriminatory. And at the heart of their opposition is a denial that such discrimination exists. The dye has been cast. Americans must reaffirm a commitment to racial progress, or our society will fall privy to regressive social conditions.
References
12.5 primary source: John Bingham, one country, one constitution, one people (1866). National Constitution Center — constitutioncenter.org. (n.d.). https://constitutioncenter.org/education/classroom-resource-library/classroom/12.5-primary-source-john-bingham-one-country-one-constitution-one-people-1866
Aaron Glantz, E. M. (2021, June 30). Modern-day redlining: Banks discriminate in lending. Reveal. https://revealnews.org/article/for-people-of-color-banks-are-shutting-the-door-to-homeownership/
American Alliance for Equal Rights vs. Fearless Fund (U.S. Court of Appeals 11th Circuit June 3, 2024).
Atkins, R., Cook, L., & Seamans, R. (2022). Discrimination in lending? Evidence from the Paycheck Protection Program. Small business economics, 58(2), 843–865. https://doi.org/10.1007/s11187-021-00533-1
Olson, A. (2024, June 4). A grant program for Black Women Business Owners is discriminatory, Appeals Court rules. AP News. https://apnews.com/article/fearless-fund-dei-backlash-dab43ae98158a0bd6175fa64fa79bcfd
