Last year’s supreme court decision to ban affirmative action in college and university admissions was a watershed moment for far-right conservative activists and groups, who have used the momentum to target not only public institutions, but also private organizations that aim to aid women and people of color.
Many of the targeted groups are being sued by complainants who allege that they have been discriminated against because they do not fit diversity requirements. In some cases, the would-be applicants are engaging in presumptive suing – alleging the organizations have engaged in discriminatory behavior without even applying.
Since the ruling, some companies, such as Zoom, Lyft and Meta have dismantled their own efforts to promote and increase diversity willingly, without any specific legal spur. But several other entities have been forced to do so following legal challenges.
Fearless Fund
Fearless Fund, which is based in Atlanta, became the country’s first VC firm founded by women of color when it launched in 2019. It awards pre-seed, seed-level or series A financing grants to Black women who own small businesses. (A 2023 study by McKinsey and Company found that Black and Latino women entrepreneurs received 0.1% of venture capital funds.) Over the past four years, in partnership with corporations, Fearless Fund supplied business owners $3.7m in grants.
The American Alliance for Equal Rights (AAER), a non-profit founded, according to its website, specifically to challenge “distinctions made on the basis of race and ethnicity in federal and state courts”, sued Fearless Fund in August 2023, shortly after the supreme court decision. The lawsuit argues that Fearless Fund is violating the Civil Rights Act of 1866, the first civil rights bill in US history, which bars racial bias in private contracts and became an early template of the 14th amendment. As a result of the lawsuit, a judicial panel has blocked the fund from continuing its grant program. All but two of the fund’s backers have withdrawn support.
Edward Blum, who is white and one of the founders of the AAER, was also instrumental in the initial supreme court decision to repeal affirmative action, as his group, Students for Fair Admissions, brought forward that suit.
Hello Alice
Last August, Hello Alice, an online platform which offers grants to Black small-business owners, was sued by America First Legal (AFL), a far-right non-profit formed by the former senior Trump White House adviser Stephen Miller. The lawsuit alleges that Hello Alice’s grant program is unconstitutional, and that it should be accessible to all business owners regardless of race.
Founded in 2022 by Elizabeth Gore and Carolyn Rodz, both of whom are white, Hello Alice’s grants help Black people across the country purchase commercial vehicles. Nathan Roberts, a white Ohio resident who owns Freedom Truck Dispatch, a trucking dispatch company, alleged that he experienced reverse discrimination because he was ineligible for the grants.
Roberts filed a lawsuit in August 2023 which argues that he is “suffering past and future injury in fact because he was barred from applying for this grant”.
“We think this case is meritless and sets the nation, and small businesses, back,” Hello Alice executives said in a joint statement. The Equal Employment Opportunity Commission (EEOC) responded in February by filing an amicus brief with Hello Alice in order to give additional information relating to the case.
“Empowering employers to take voluntary measures to remedy past discrimination remains an important component of our nation’s progression toward equal employment opportunity,” the brief reads. “This court should take care not to hinder such efforts.”
Nascar
AFL also targeted Nascar for the organization’s “diversity driver development program”, “diversity pit crew development program”, and the “Nascar diversity internship program”, arguing that the programs violate the Civil Rights Act of 1964, the country’s benchmark civil rights legislation, which prohibits discrimination based on race and sex and outlawed segregation.
Nascar had predicted the potential for such a lawsuit and preemptively walked back its programs, widening it to applicants of “diverse backgrounds and experiences”, instead of specifically calling for “top minority and female” applicants as it had previously. The AFL’s letter to the EEOC alleged that the change still perpetuated discrimination.
“Nascar’s and Rev Racing’s commitment to race and sex-based hiring has not wavered – the website changes described above seem to have been designed only to conceal their ongoing, deliberate, and illegal discrimination against white, male Americans,” the complaint, which is currently pending, alleged.
Morrison Foerster
Morrison Foerster, a California-based international law firm, changed the eligibility for the Keith Wetmore Fellowship for Excellence, Diversity, and Inclusion after AAER filed a lawsuit alleging in August of 2023 that the program was unlawfully discriminatory.
Initially, the program was only eligible for 1L students “who are members of historically underrepresented groups in the legal industry”. Now, the 12-year-old program seeks students “with a demonstrated commitment to diversity and inclusion in the legal profession”.
Wisconsin Bar
Late last year, a white member of the state bar of Wisconsin filed a complaint against the association alleging that its summer hiring program, the “diversity clerkship program”, was discriminatory. The program initially required that applicants be members of minority groups. However, following the supreme court’s affirmative action decision, before the complaint, the eligibility requirements were changed to include students with “backgrounds that have been historically excluded from the legal field”. Without defining which groups count as “historically excluded”, applicants could be from non-traditional backgrounds regardless of their race.
Despite the program’s race-neutral wording, the plaintiff still alleges that the bar’s program is unconstitutional in that it implicitly prioritizes minority groups. The complaint also alleges that the program constitutes compelled speech and compelled freedom of association, in violation of the first amendment, a common tactic by suits against DEI initiatives.
Last Friday, the Wisconsin Bar and the Wisconsin Institute for Law & Liberty reached a partial settlement. Under the terms, beginning this September, the program will be open to all first-year law students attending either Marquette University Law School or the University of Wisconsin Law School who are in good standing. Specifically, the bar is prevented from stating, suggesting or insinuating “in its materials that only law students from diverse backgrounds, with backgrounds that have been historically excluded from the legal field, or who have been socially disadvantaged are eligible”.
The partial settlement also created a definition for the state bar to use for “diversity” as it applies to the program. Per the definition in the partial settlement, diversity “means including people with differing characteristics, beliefs, experiences, interests, and viewpoints”.
National Museum of the American Latino
In February, AAER filed a complaint and motion for a preliminary injunction against Jorge Zamanillo, the director of the National Museum of the American Latino. The complaint alleges that the museum’s internship program, which seeks to provide Latino undergraduates with non-curatorial art museum careers, is unconstitutional.
Following a settlement agreement in March, the program’s website now says that the internship “is equally open to students of all races and ethnicities, without preference or restriction based on race or ethnicity. The museum does not use racial or ethnic classifications or preferences in selecting awardees for the undergraduate internship”.
George Floyd Memorial scholarship
North Central University, in Minneapolis, is being accused of violating the Civil Rights Act in a federal complaint filed by Legal Insurrection Foundation, a far-right advocacy organization.
To be eligible for the scholarship, which is named after George Floyd, whose murder at the hands of police sparked international protests in 2020, applicants must “be a student who is Black or African American, that is, a person having origins in any of the black racial groups of Africa”.
According to the complaint, which is pending, the college’s George Floyd Memorial scholarship “engages in invidious discrimination on the basis of race, color and national origin”.
