Progressive philanthropic groups the Council on Foundations and Independent Sector have described a US lawsuit, in which a foundation providing support to black women entrepreneurs is accused of being racially discriminatory by nature, as an example of “fundamental rights under attack.” 

American Alliance for Equal Rights (AAER) has sued the Atlanta-based Fearless Foundation – led by Black women providing support to marginalised women in the US – claiming that its programme for Black female entrepreneurs is racially discriminatory.  

The AAER publicly describes itself as a membership organisation “dedicated to challenging racial and ethnic classifications”. 

It is a case that has been described as sending ripples through the US philanthropic landscape, with major names publicly coming out in support of the Fearless Foundation. 

“We believe that philanthropic organisations, charitable programs, 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 marginalised groups,” said a statement published by the Council on Foundations and Independent Sector, with 200+ organisational signatures, including the Ford Foundation.

Ford Foundation president Darren Walker voiced his dismay at the lawsuit. 

“It is deeply ironic—and fundamentally misguided—to suggest that the Constitution now prevents us from reckoning with the disparities of the present in order to build a more just and equal future,” he said.  

The Council on Foundations, a nonprofit association group comprising of almost 900 US philanthropic institutions, has sent an amicus brief – a legal document filed to court from those not participating in a case but wishing to file evidence or support – stating that any argument that claims helping Black women in the US “ignores the history of our nation, as well as the purpose of the charitable sector”.  

In the publicly available brief, both 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. 

“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.   

Reverend F Willis Johnson, an advocate of race-based initiatives – serving vice president to the Bridge Alliance helping to establish equity funds for US marginalised communities – says the lawsuit “is not merely about legal technicalities but the future of racial equity and the effectualness of focused funding.”  

“The court’s ruling will undoubtedly send ripples through the philanthropic landscape, potentially redefining the strategies and means employed to achieve racial equity,” he adds, writing for The Fulcrum. 

Some 78,133 grants, valued at $16.8 billion, were pledged for racial equity from 2020 to October 2023, according to data collected by Candid.

Shafi Musaddique is news editor at Alliance magazine.