Report sides with artists in Metro Arts grant funding discrimination claim

An investigation into the clawback of Metro Arts grant funds intended for underserved artists concluded Monday, finding probable cause of discrimination.

A handful of large arts organizations have received nearly 70% of the approximately $61.6 million doled out by the Metro Arts Commission since its inception in 1987. After a yearslong push to shape a grant process more equitable for individual artists and smaller organizations, the commission in July 2023 approved a funding model devoting more dollars to those applicants, many of whom are minorities.

But a month later, the commission reversed that decision after Metro Legal advised that the vote was unconstitutional because commissioners had discussed impacts on racial groups before voting. The commission ultimately reverted to a funding model directing the majority of dollars to historically funded, larger and mostly white-led institutions.

In response, six people, including five artists who lost some or all of the grant money promised to them, filed formal Title VI complaints alleging that Metro Arts discriminated based on race in violation of federal rules when reverting to the previous funding model.

The complainants allege the funding reversal decision "continues to uphold historical inequities and was driven by race-based reasoning that adversely and disproportionately affects people of color and is discriminatory," according to the investigation report. Another 68 individuals signed on as supporters of the complaints, including 32 grant applicants who were adversely impacted by the revote, the Metro Human Relations Commission stated.

MHRC investigated and sided with the complainants in a report released this week.

"I emphatically, indubitably, without reservation find probable cause that there has been a discriminatory action," MHRC Executive Director Davie Tucker told the Metro Human Relations Commission Monday during a two-hour meeting devoted to reviewing the investigation's findings.

Reached via email Tuesday, Metro Legal Director Wallace Dietz said the department has "serious concerns" about MHRC's report, including "its failure to present the Department of Law's recommendations for achieving greater equity in arts funding, the lack of information that was provided to outside counsel, and the misrepresentations made regarding conciliation efforts."

The department, Dietz wrote, stands by its advice that "race was unlawfully used as a factor in determining allocation of the arts funds at the July meeting."

MHRC unanimously approved, 13-0, Tucker's request to hold a public hearing on the case. The date for the hearing has not yet been set, and it remains possible that the complaints could be mediated and an agreement reached before the hearing is held.

"If the federal government agrees with us that there's been a violation of Title VI, those funds are in jeopardy," Tucker said Monday. "That is not what we're trying to do. What we're trying to do is to change a system that has been operating in a historic, discriminatory fashion."

If the complaints are not resolved in an equitable way, Tucker said, he hopes MHRC will push the issue to a court of law.

The report also recommends:

• the complainants be awarded the grant amounts they would have received under the July 2023 funding model

• the Metro Arts Commission establish a funding model ensuring future allocations will be distributed equitably, with required Metro Council approval

• Metro Legal produce a "detailed procedure guide" for all Metro boards and commissions

More: Is Nashville committed to equity? Arts funding controversy draws scrutiny

Report: Overturned funding model was 'race-neutral' in line with law

In August, the Metro Arts Commission rescinded its July vote to give a higher percentage of funds to individual artists and smaller organizations at the advice of Metro's legal department.

The issue, according to Metro attorneys, was data reviewed and discussed by the commission before the vote that showed how different funding scenarios would impact different demographics: How much of the grant funding would go to artists identifying as Black, Indigenous or people of color (BIPOC) versus white artists and white-led organizations.

In the days following the initial vote, Metro Legal advised the commission that discussing that data prior to voting on a funding model violated the Equal Protection Clause of the U.S. Constitution, particularly in light of a U.S. Supreme Court decision to end affirmative action in higher education.

The MHRC report rejects that conclusion.

"Those 'impact' dollar amounts were not criteria used to create each funding option; rather, they were descriptive data points for each scenario," the report states.

Race was not used to create any of the five funding models the commission chose between in July, which were shaped based on organizations' budget sizes in line with recommendations from a committee to make Metro Arts' grant process more equitable, according to the report. The model they chose resulted in greater eligibility for small organizations and individual artists, many of whom identified as minorities.

"This process used race-neutral criteria and successfully increased minority participation through such race-neutral means, thereby posing minimal risk to claims that Metro Arts used a race-conscious grant program," the report states.

MHRC: Metro Legal 'overstepped'

MHRC thinks Metro Legal may have overstepped its authority as an advisor to the arts commission, which is authorized to make its own policy decisions.

"Some of the quotes (from interviews with then-Commission members) might lead me to believe that that boundary was overstepped or pushed (by Metro Legal)," MHRC Director of Policy and Research Ashley Bachelder said Monday.

Before the commission overturned the new funding model, Metro Legal called a confidential meeting with arts commission members on Aug. 11. Dietz said Tuesday that the meeting was "prompted by information that large arts entities were considering filing suit to challenge the arts funding allocation."

It's unknown what was discussed at that meeting, but of the 14 Metro Arts commissioners interviewed for MHRC's investigation, several said they felt they had to rescind their vote even though they said they hadn't made their decision based on race. Nine commissioners either questioned the validity of Metro Legal's advice or expressed frustration with it. Five either agreed with the advice or "seemed indifferent," the report stated.

Metro Arts promise to fund larger institutions 'a mistake'

A 2023 Metro budget allocation that fell short of the Metro Arts department's goal complicated matters. An audit of Metro Arts' finances is ongoing.

Without sufficient funding to issue grants to all eligible applicants, Metro Arts commissioners initially chose to shrink large grants historically awarded to institutions like Cheekwood, the Frist Art Museum, Nashville Ballet and the Nashville Chamber Orchestra.

That upset historically supported groups who were promised in late 2022 that if the department did not receive the full funding it requested from Metro, they would still get the same level of funding in 2023, budget allowing.

Metro Arts Executive Director Daniel Singh later said that promise was "a mistake."

When the commission rescinded its July vote, it voted instead for the funding option that gave the most money back to those institutions, rejecting funding scenarios that would have more evenly distributed cuts across all organization sizes.

MHRC's report states Metro Legal's intervention "gave the commission a second chance, or a redo, when the July vote went in a direction that some did not expect nor support."

"Those who changed their vote admit to defaulting to the traditional funding pattern, and with that, either the explicit or implicit determination that it was more important to prevent harm to those legacy organizations," according to the report.

Attorney: Decision to rescind may pose greater legal risk

Mel Fowler Green, a civil rights attorney of 23 years and former executive director of the Metro Human Relations Commission, served as outside counsel for MHRC during the investigation. She opined that the July funding allocation did not violate the Equal Protection Clause because race was not used to determine eligibility for the grants and "was not determinative at any point."

"In any case, that decision was certainly legally defensible," she said Monday.

Fowler Green cited a Supreme Court case that prevents municipalities from reversing "defensible decisions" under allegations of disparate racial impact unless "there is a 'strong basis in evidence' that the original decision was unlawful."

"The decision to rescind the July 20 decision likely creates a greater risk of liability for the city than it would have faced had (the Metro Nashville Arts Commission) proceeded with the grants as decided on July 20," she wrote in a detailed legal memorandum attached to the investigative report.

Metro Legal stands by decision

Metro Legal contacted law firm Griffin and Strong for a second opinion in July. At a meeting on Jan. 26, Dietz said the firm agreed with Metro that the July vote was unconstitutional.

Griffin and Strong recommended a "robust and detailed" disparity study to support the creation of a nondiscrimination program that would allow Metro Arts to make some race-based considerations when doling out grant funds. Metro Procurement already has a nondiscrimination program, but arts grants do not fall within its parameters.

Griffin and Strong presented a $106,000 budget for such a study, which Metro Arts leadership felt it could not afford. The Department of Law "continues to encourage this route as a way to provide for an equitable distribution of grants funding going forward," according to a Jan. 19 letter to Tucker, Associate Director of Law Lora Barkenbus Fox.

A disparity study completed by consultant RISE at the request of Metro Arts did not meet Metro's standards "due to methodology and research team," according to MHRC's report.

Fox wrote that the Department of Law recommended "race-neutral criteria that would have benefitted BIPOC applicants" prior to the August meeting, but the commission ultimately chose to direct more funds to larger institutions. The department "did not support one (funding) scenario over another, as this was not a legal question; it was a policy decision within the Arts Commission's discretion."

MHRC director alleges personal retaliation

Tucker, who led the investigation into Metro Arts, revealed on Monday that three Arts employees filed formal complaints with Metro's human resources department against him alleging assault, intimidation and coercion. He said he was notified of Metro HR's investigation of the complaints on Thursday night and was instructed not to speak publicly about it.

"Metro Legal has weaponized employees at Metro Arts," Tucker said, claiming the investigation is "retaliatory."

He has retained personal legal counsel, he said.

Dietz said that he is aware of the complaints, which concern a Feb. 26 incident, but that no one from Metro Legal witnessed the incident, spoke with Arts employees about what happened or provided advice on whether to file a complaint with HR. Metro Legal has "no role" in the HR investigation, he said.

"The fact that my friend and colleague Davie Tucker would make a baseless accusation against me without speaking with me first is beyond disappointing," Dietz wrote. "His accusation that I somehow weaponized Arts Commission employees to attack him is categorically false."

This article originally appeared on Nashville Tennessean: Report sides with Nashville artists in funding discrimination claim