Fear Less
As we continue our work in a new presidential administration, I am writing to revisit remarks I made at Grantmakers in the Arts’ national conference in Chicago regarding how to support vulnerable communities in light of potential legal challenges.
At our conference, I addressed the Fearless Fund settlement. Earlier this year, one of Edward Blum’s organizations, the American Alliance for Civil Rights, sued Fearless Fund for its Strivers Grant program, claiming it violated Section 1981 of Civil Rights Act of 1886; “A federal law prohibiting discrimination on the basis of race, color, and ethnicity when making and enforcing contracts.” Specifically, Section 1981 grants all individuals the same rights and benefits as "enjoyed by white citizens" regarding contractual relationships. Putting aside how ridiculous using this law to assert anti-white discrimination is, the 11th Circuit – which includes Alabama, Florida & Georgia – allowed the suit to move forward based on the issue of whether these grant agreements counted as contracts. The 11th Circuit justices considered the grant agreements to be business contracts due to the grant agreement’s use of contract language – including articulating an exchange of goods. The justices considered the grants as contractual exchanges because they weren’t gifts.
Fearless Fund stopped the grant program, so they could continue their work supporting Black women entrepreneurs. This settlement avoided the 11th Circuit issuing a ruling, preventing the case from going to the Supreme Court, ultimately circumventing the possibility of a ruling that may have stopped foundations nation-wide from race-explicit grantmaking. To be clear: there has been NO ruling that stops race-explicit foundation grantmaking – not in the 11th Circuit, not in the nation, not anywhere.
So how do you avoid getting sued? You don’t. You position yourself to withstand a lawsuit. And when it comes to this specific law, being prepared is not that complex. Avoid overly specific grant agreements that look like contracts that assert an exchange of goods. The advice we’ve received from lawyers is that Trust Based Philanthropy makes you and your grantees less vulnerable, not more vulnerable. Making your grants gifts based on trust will provide greater security for both of you. We do racists’ work for them when we say the 11th Circuit states you can’t support racial equity through your grants. There was no such ruling. We do racists’ work for them when we say things like ‘Affirmative Action is over.’ It is not over. The Supreme Court said it cannot be used in college admissions. Nowhere else.
Those who brought these suits acted in the spirit of audacity hoping that it would frighten people into abandoning racial equity pre-emptively to avoid bullying. You can’t avoid a bully, but together, we can prepare to fight and win.
The most important thing to do now is protect those BIPOC organizations that are vulnerable. As I’ve shared with you before, several foundations have backed the Lawyers Committee for Civil Rights Under the Law’s Protecting and Advancing DEI Pro Bono Initiative. The Protecting and Advancing DEI Pro Bono Initiative was created to provide legal advice to entities concerned about their ongoing or future efforts to support equity, inclusion, and diversity.
I also want to highlight an emerging effort by ABFE: A Philanthropic Partnership for Black Communities in collaboration with Asian American/Pacific Islanders in Philanthropy, Hispanics in Philanthropy, and Native Americans in Philanthropy. This cohort is putting together a pooled fund as part of the Racial Equity Advancement and Defense Initiative. The fund will assist organizations that support BIPOC communities facing some type of legal action. The fund will resource legal support, communications, security, and other related efforts.
Contact E. Bomani Johnson at ABFE to find out how you can support this effort. Grantmakers in the Arts presented Bomani Johnson, Remy Barnwell (staff counsel at Council on Foundations), and Caitlin Strokosch (president of National Performance Network) at our 2024 annual conference, where they discussed these cases and how organizations can protect their applicants and grantees.
It is essential that we support all those that are vulnerable: Racialized people, Trans people and all members of the LGBTQIA2S+ community, and people with disabilities. Also - let’s be clear, philanthropy exists to mitigate the impact of bad public policies. We must change those public policies.
GIA is nonpartisan. Nonpartisan does NOT mean NOT political. Neutrality is a position none of us can afford.
Grantmakers CAN advocate. Foundations CAN legally support both advocacy and lobbying as a part of their general operating support and program or project support.
Grantmakers in the Arts holds public policy and advocacy as one of its core funding focus areas and believes one of the most important roles we can serve in benefitting our members and the arts grantmaking community comes by way of our public policy and advocacy work. We are maximizing the impact our sector can have toward increasing access to the arts and realizing intersectional and economic justice through the arts.
Grantmakers in the Arts’ Public Policy & Advocacy work has three components:
GIA educates funders about how they can advocate and support both advocacy and lobbying.
Foundations CANNOT say, “Here’s your lobbying money.” Foundations CAN say, “Here’s your grant and we recognize that some of it will be used for lobbying.”
Foundations CAN support nonprofits’ lobbying through general operating support as long as none of their funds are earmarked for lobbying.
Foundations CAN support nonprofits’ lobbying through project grants for projects that include lobbying as long as none of the grant is earmarked for lobbying.
GIA advocates and lobbies for governmental policies that benefit artists and other workers as well as students, seniors, children, and caregivers.
Knowing that much government change happens at the level of agency practice, GIA provides networking and professional development to public agencies that support the arts and artists, including but not limited to, state and local arts agencies.
Foundations can support grantees’ advocacy and lobbying. Supporting power-building through organizing, advocacy and lobbying are not only legal, but they are also essential. They are critical to the victory that is the future of our communities and to the safety that is the birthright of racialized people, Trans people and all members of the LGBTQIA2S+ community, people with disabilities, and all others that are currently oppressed.
I say currently oppressed because we will fight, and we will win.
ABOUT THE AUTHOR
Eddie Torres is president & CEO of Grantmakers in the Arts
