In a ruling yesterday in American Alliance for Equal Rights v. Fearless Fund Management, a divided panel of the Eleventh Circuit ruled that the plaintiff membership organization was entitled to a preliminary injunction barring Fearless Fund Management from running an entrepreneurship-funding contest open only to businesses owned by black women. Judge Kevin Newsom wrote the majority opinion, which Judge Robert Luck joined. Judge Robin Rosenbaum dissented.
The division between Judge Newsom’s majority opinion and Judge Rosenbaum’s dissent is on the threshold question whether the American Alliance for Equal Rights has standing to challenge Fearless Fund’s racially discriminatory criterion. In particular, the subsidiary question on which they divide is over whether the Alliance adequately showed that at least one of the three members on whose behalf it sued was “ready and able” to take part in the contest if it were open to non-black applicants. I’ll leave it to interested readers to sort through the competing arguments of Judge Newsom (pp. 12-14) and Judge Rosenbaum (basically, the entirety of her 22-page opinion). In the unlikely event that this case gets to the Supreme Court, I would expect Newsom’s analysis to prevail.
Newsom goes on to conclude that the contest involves a contract subject to the federal statutory ban (42 U.S.C. § 1981) on racial discrimination in the making of private contracts (pp. 15-17) and that the First Amendment does not protect the contest’s racial discrimination as a form of expressive conduct (pp. 19-24).
If there were a contest for the worst opening paragraph in a judicial opinion, I would put Rosenbaum’s in the mix:
No one doubts the sincerity of an Arsenal (soccer) player’s desire to beat Tottenham. But he can’t be allowed to try to win by flopping on the field, faking an injury near Tottenham’s goal. For those not in the know, the object of flopping is to manufacture a foul that the player hasn’t actually experienced to manipulate the referee into inappropriately exercising his power to award a penalty kick in the box, where it’s likely to result in a goal. Referees’ vigilance prevents players who have a sincere desire to defeat their opponents—but who try to do so through manufactured fouls—from commandeering referees to improperly exercise their adjudicatory authority to award unwarranted penalty kicks.
For starters, I don’t see why an American judge would resort to an English soccer league analogy (one that she has to explain by adding soccer in a parenthetical) when the same flopping charge could be made with the good old American sport of basketball. The analogy is also very strained. Even worse, it invites this slam-bang retort from Newsom:
[O]ne word in response to our dissenting colleague’s repeated accusation that the Alliance’s members here are “flopping”—i.e., disingenuously faking injuries for their own strategic advantage. Let us not forget: We’re talking about real-live, flesh-and-blood individuals who were excluded from the opportunity to compete in Fearless’s contest solely on account of the color of their skin. Respectfully, victims of race discrimination—whether white, black, or brown—are not floppers.
(Rosenbaum responds ineffectively in her footnote 2.)