The People Who Dismantled Affirmative Action Have a New Strategy to Crush Racial Justice

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Last summer, in Students for Fair Admissions v. Harvard College, the Supreme Court’s conservative supermajority struck down race-conscious admission programs adopted by Harvard College and the University of North Carolina as violations of the 14th Amendment’s equal protection clause. In doing so, the court’s conservative supermajority both ignored that the Framers of the 14th Amendment were the originators of affirmative action and turned a blind eye to entrenched racial inequalities that make a mockery of the constitutional promise of equal citizenship. Now, Edward Blum, who was behind the attack on affirmative action in the SFFA case, and other conservative litigants intent on blocking racial justice efforts have a new strategy: remake the nation’s oldest federal civil rights law, the Civil Rights Act of 1866, into a weapon to challenge private efforts to ameliorate systemic racial discrimination and to redress the racial wealth gap.

Last week, in American Alliance for Equal Rights v. Fearless Fund Management, a divided panel of the U.S. Court of Appeals for the 11th Circuit became the first federal court of appeals to place its imprimatur on Blum’s new tactic. In a 2–1 ruling, the court of appeals held that Fearless Fund’s grant program to provide capital funding to small businesses run by Black women violated a key federal civil rights statute that dates back to the Civil Rights Act of 1866. Known as Section 1981, this law guarantees the equal right to make and enforce contracts.

The court’s opinion, written by Judge Kevin Newsom and joined by Judge Robert Luck, both Donald Trump appointees, held that Fearless Fund’s privately financed effort to rectify the near-total exclusion of Black women from venture capital and ensure that women of color have access to the resources they need to enjoy economic freedom and succeed in business was an unlawful form of racial discrimination. Adopting a strict colorblind reading of Section 1981, Newsom insisted that permitting a grant program open only to Black women “would be anathema to the principles that underlie all antidiscrimination provisions” and preliminarily enjoined its operation.

Newsom’s majority opinion works hard to portray the result as compelled by settled legal principles, but make no mistake, Fearless Fund is a big deal: It perverts a landmark civil rights statute aimed at guaranteeing basic rights of economic citizenship to Black Americans and redressing the long shadow of enslavement, and it creates new barriers to efforts to ensure racial inclusion. Never mind that eradicating racial subordination and guaranteeing economic justice lie at the very core of Section 1981. The two Trump-appointed jurists in the majority effectively read these fundamental precepts out of the statute, holding that Black-owned companies cannot put their own private money into the work of redressing the racial wealth gap and helping to ensure the success of Black-owned companies. According to the court of appeals, Fearless Fund’s grant program must be available to white-owned businesses as well.

The colorblind reading of Section 1981 advanced by Newson’s majority opinion is profoundly antitextual. The Civil Rights Act of 1866 was intentionally written in a race-conscious manner. The act declares that citizens “of every race and color … shall have the same right … to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.” Recognizing that enslaved Black Americans never had rights to contract and property—rights essential to equal citizenship—Congress used sweeping language to ensure that persons of “every race and color” would “enjoy” the same economic freedoms as “white citizens.” The statute is not aimed at the use or consideration of race at all; instead, it uses the rights of white citizens as a baseline to guarantee to Black Americans rights of economic citizenship that white citizens have long taken for granted. Newsom quotes the relevant statutory language, but pays the text lip service.

Congress chose this text for good reason: The Reconstruction-era Civil Rights Act was critical to enforcing the 13th Amendment, eradicating badges of slavery and ensuring that Black Americans freed from bondage were entitled to basic economic rights and enjoyment of the fruits of their labor. It came in direct response to former enslavers seeking to impose new forms of servitude and reduce Black Americans to serfdom. With these new race-conscious protections, the Reconstruction-era Civil Rights Act’s Framers insisted, “all features of slavery which are oppressive in their character, which extinguish the rights of free citizens, and which unlawfully control their liberty shall be abolished and destroyed forever.” The Fearless Fund ruling perverts the statute’s roots in securing economic justice, even as it forbids Black-led businesses from using their own money to ameliorate systemic patterns of economic exclusion and inequality.

The Congress that enacted the Civil Rights Act of 1866 knew that private efforts were crucial to racial and economic uplift. One of the singular successes of Reconstruction was the creation of the nation’s first schools and colleges for Black Americans in the South, spurred by charitable giving by abolitionists and others who devoted significant resources to education in recognition that knowledge is power. In throwing up new roadblocks to the use of private money to redress racial and economic inequality, the Fearless Fund ruling is both deeply antitextual and antihistorical.

Fearless Fund will be far from the last word on the meaning of Section 1981. As other courts consider Ed Blum’s conservative effort to rewrite that critical act, they should remember that the Civil Rights Act of 1866 sought to redress continuing badges of enslavement and to make economic justice a reality. Reconstruction’s great constitutional transformations were race-conscious to the core. In passing statutes like the Civil Rights Act of 1866, Congress understood the need for far-reaching remedies to rectify centuries of racial enslavement, oppression, and violence and to ensure some measure of economic justice to Black Americans. Getting this history right is essential to exposing the glaring flaws in conservative rulings, like Fearless Fund, and to addressing the next wave of coming cases seeking to roll back racial justice efforts.