A venture capital fund meant to help Black women start and grow their businesses is under attack from a conservative group. Now, a federal appeals court has put a temporary freeze on the women’s money. Here is the full story.
Black Women Only
Founded in 2019, Fearless Fund was established, at least partially, to help businesses run by Black women get on their feet and move forward.
But at least one conservative group takes exception to their Fearless Strivers Grant Contest, which accepts applications only from businesses owned by Black women.
According to Edward Blum of the American Alliance for Equal Rights, the program is racially exclusive and violates multiple federal laws.
Not everyone agrees with that take, though, and a federal judge in Atlanta denied Blum’s request for an injunction against the Fearless Fund in late September.
Protected by the First Amendment
That wasn’t the end of the road for Blum, who was back in federal appeals court just a few days later.
This time, he found more sympathetic ears. In a 2-1 decision, the 11th U.S. Circuit Court of Appeals told Fearless Fund that they had to stop excluding other applicants from the application review process, at least temporarily.
In issuing their verdict, the appeals court said that the ban would last until the case could play out fully in the legal system.
Under the earlier ruling, Thomas Thrash said that Fearless Fund was protected by the First Amendment and its guarantee of Freedom of Speech.
Violating the Civil Rights Act
But in this new decision, Robert Luck and Andrew Brasher said that the Fearless Fund contest “likely” violates Section 1981 of the 1866 Civil Rights Act.
That post-Civil War law bans racial bias in issuing contracts of any sort.
Critics of the appeals court decision have noted that both Luck and Brasher were appointed by former President Donald Trump.
Clinton appointee Charles Wilson was the lone dissenting voice on the panel.
A Law Made for Freed Slaves
Wilson called the citing of the 1866 Civil Rights Act in the court’s judgment a “perversion” of a law originally intended to protect newly freed slaves from discrimination.
But in the majority decision, Luck and Brasher wrote that this is not a First Amendment case. In particular, they say, the defendants do not have “the right to exclude persons from a contractual regime based on race.”
Jason Schwartz, an attorney for Fearless Fund, says he remains committed to helping his clients get on with their mission of helping Black-owned, women-owned businesses.
In doing so, Fearless is hoping to close what they see as a huge gap in capital funding.
The Battle Continues
According to Fearless Fund, less than 1% of money spent by venture capital companies made its way to businesses owned by Black women in 2022.
Meanwhile, Fearless Fund has invested about $27 million in 40 companies since their founding.
With neither side willing to budge and this case calling into question fundamental principles of American business, it appears this battle will rage on for a good while longer.
And, considering the high stakes and broader messages involved, a date in front of the United States Supreme Court may be all but inevitable.
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