Backing Diversity as First Amendment Expression Comes With Risks

Invoking the First Amendment to defend initiatives aimed at boosting workplace diversity, equity, and inclusion has the potential to set precedent that provides legal ammunition to undercut other civil rights goals.

A federal appeals court recently rejected venture capital fund Fearless Fund Management LLC’s First Amendment defense in a legal challenge to its grant contest for Black women entrepreneurs. The US Court of Appeals for the Eleventh Circuit held that the fund violated Section 1981 of the 1866 Civil Rights Act’s ban on race discrimination in contracts and went beyond the bounds of First Amendment protections for expressive conduct.

Although ...