Document Type
Article
Publication Date
2025
Abstract
Private charitable organizations have long enjoyed the freedom to determine their mission and render appropriate charitable assistance, including by taking race, ethnicity, gender, and other traits into account when responding to the harmful effects of past discrimination, a practice this Feature terms “private remedial action.” The legality of this kind of trait-conscious assistance is strongly supported by the early American history of trait-based associations, federal tax law, and core values of free association. However, new legal and political attacks on affirmative action of all types have put charities on the defensive, leading many groups to change their programs and behavior even when the law is on their side. In one notable decision, American Alliance for Equal Rights v. Fearless Fund, a divided Eleventh Circuit panel forced a charity to stop awarding grants to Black women-owned businesses, finding that doing so likely violated the Civil Rights Act of 1866. In the wake of Fearless Fund, the Trump Administration has embarked on sweeping efforts to stop private organizations from engaging in what it terms “illegal discrimination” and “DEI.” If left to stand, rulings like Fearless Fund will threaten thousands of charitable programs, cause charities to operate from fear of losing their tax-exempt statuses rather than from commitments to their missions, and create a substantial chilling effect.
This Feature argues that these attacks on private remedial action are not supported in law or public policy and that the charities’ longstanding practice is not illegal discrimination. To the contrary, Congress has passed no civil-rights law targeting donative assistance, and public policy and the First Amendment right of expressive association strongly support the efforts of private groups to address social problems free from government interference. Absent a return to the pre-Fearless Fund status quo or new legislation, courts and the IRS should develop appropriate standards for private remedial action that are both consistent with a common-law approach to charity and mindful of the important role charities play in solving social problems in a free and pluralistic civil society.
Recommended Citation
Colinvaux, Roger, 135 Yale L. J. 549 (2025).
