The Council on Foundations (CoF) and Independent Sector (IS) announced on December 13, 2023 that they had filed a joint amicus brief in support of the Fearless Foundation with respect to a lawsuit claiming that the Foundation’s grant program is in violation of Section 1981 of the Civil Rights Act. The press release is reprinted in its entirety below.

CoF and IS also published a sign-on statement (Stand With Us for Philanthropy) in supporting the rights of philanthropic organizations, charitable nonprofits, and individual donors to give in ways that align with their values.

Sign on Statement

We believe that philanthropic organizations, charitable nonprofits, and individual donors have the right to exercise their values and views through giving money and other resources, as protected by the First Amendment. That includes efforts to support historically marginalized groups. 

Right now, those fundamental rights are under attack, in the form of a lawsuit by the American Alliance for Equal Rights. AAER has sued the Atlanta-based Fearless Foundation – led by Black women and committed to providing grants, tools, and mentorship to women of color – claiming that its program for Black female entrepreneurs is racially discriminatory.  

While we have different views, funding priorities and values, we, the undersigned, stand together in affirming that: 

• Philanthropic donations support our communities in ways that mirror the diversity of our priorities and interests. 
• Charitable giving is expressive conduct and a form of nonpartisan, constitutionally protected speech. 
• Philanthropy has a positive impact for communities and charitable causes across the country, including supporting historically marginalized groups and communities. 
• Philanthropic organizations, charitable nonprofits, and individual donors have the right to exercise their views through giving, as protected by the First Amendment, even when others might disagree with where a funder chooses to donate. However, together, we have a duty to ensure that charitable dollars never promote hate, extremism, and violence.  

We are committed to making it easier for organizations and people to give, across all dimensions of society, not harder. We call on the courts to dismiss this lawsuit and uphold the First Amendment rights of philanthropic organizations, charitable nonprofits, and individual donors to give in ways that align with their values. 

Press Release

Council on Foundations, Independent Sector File Amicus Brief in Fearless Foundation Lawsuit to Protect Right to Give

Wednesday, December 13, 2023

WASHINGTON – The Council on Foundations (The Council) and Independent Sector (IS) have filed a joint amicus brief in support of the Atlanta-based Fearless Foundation, an organization led by Black women that helps combat underfunding in venture capital by providing grants, tools, and mentorship to women of color.

The American Alliance for Equal Rights (AAER) has sued the foundation, claiming that its grant program for Black female entrepreneurs is racially discriminatory. In the brief, the Council and Independent Sector call on the court to dismiss this lawsuit and rule in line with the First Amendment that philanthropies and individuals have a constitutional right to donate to charitable causes that align with their values, including efforts to support historically marginalized groups.

“The American spirit of generosity plays out in ways as diverse as we are, precisely because giving is about supporting the causes that matter to each of us,” said Council on Foundations President and CEO Kathleen Enright.  “And that diversity enables philanthropy to meet our country’s most pressing challenges again and again. That’s why the Council will always stand for making it easier for everyone to give, not harder.”

“Any argument that it’s discrimination to help women of color gain opportunity in a field where they are underrepresented ignores the history of our nation,” said Independent Sector President and CEO, Dr. Akilah Watkins. “It’s also a blatant attack on the right to expression that the First Amendment affords everyone who gives. Independent Sector is proud to help lead the call for this suit to be dismissed.”

The Council and Independent Sector represent a diverse community that includes grantmakers of all sizes, focus areas, geographies, and increasingly, those who structure their philanthropy in new and creative ways, both in the U.S. and abroad. Both organizations remain committed to protecting philanthropy, in all its forms, as it works toward the greater good.

Download the full brief from the Council’s website.

The Council and IS invite philanthropic and nonprofit organizations to sign a sector-wide statement supporting the right for individuals and philanthropies to give in line with their values.

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About the Council on Foundations
The Council on Foundations is a nonprofit membership association that serves as a guide for philanthropies as they advance the greater good. Building on our almost 75-year history, the Council supports nearly 900 member organizations in the United States and around the world to build trust in philanthropy, expand pathways to giving, engage broader perspectives and co-create solutions that will lead to a better future for all. Learn more about the Council and become a member by visiting cof.org.

About Independent Sector
Independent Sector is the only national membership organization that brings together a diverse community of changemakers at nonprofits, foundations, and corporate giving programs to ensure all people in the United States thrive. Learn more about IS and become a member by visiting independentsector.org

Amicus Brief – Summary of Argument*

* without footnotes

Foundations and nonprofits have a First Amendment right to express their missions through charitable grants. Amici urge the Court to protect that constitutional right by affirming the District Court’s decision rejecting Appellant’s motion to enjoin Fearless Foundation’s expressive conduct.

Like most of Amici’s members, Fearless Foundation (the “Foundation”) is a 501(c)(3) nonprofit organization. It qualifies as a 501(c)(3) because it is organized and operates exclusively for charitable purposes, and no part of its net earnings benefit any private individual. See 26 U.S.C.A. § 501(c)(3). The Foundation’s charitable mission is to help eliminate the significant gap in funding that persists for women entrepreneurs of color in the United States. It pursues its mission, in part, by giving grants, tools, and mentorship to certain Black women business owners through its Fearless Strivers Grant contest (the “Grant Program”).

Appellant argues that the Foundation’s Grant Program violates Section 1981 of the Civil Rights Act. Section 1981 is a law that was enacted after the Civil War to guarantee recently emancipated slaves the same rights to make and enforce contracts “as enjoyed by white citizens.” 42 U.S.C. § 1981. More than 150 years later, Black female entrepreneurs still do not enjoy the same opportunities as white entrepreneurs. The Foundation created its Grant Program to help close that gap. Now, Appellant asks the Court to enforce Section 1981 to either stop the Foundation from making grants to Black female entrepreneurs or force it to make grants to other groups it does not wish to support. Either remedy would violate the First Amendment.

This Court has already held that the First Amendment protects a foundation’s right to express its mission through grantmaking. A foundation’s decision to give–or not give–to a particular group conveys a message. Any effort to restrict a grant decision is therefore presumptively unconstitutional, and, at a minimum, must be narrowly tailored to serve a compelling state interest. The relief Appellant seeks flunks that test.

Neither forcing the Foundation to make grants to white entrepreneurs nor prohibiting the Foundation from making grants to underfunded Black female entrepreneurs would serve any compelling governmental interest. To the contrary, it would shut down private philanthropy that seeks to alleviate the very problem Section 1981 was enacted to prevent, and it would chill charitable organizations’ long- recognized freedom to choose who benefits from their generosity.