October 3, 2024

The First Amendment right of people and organizations to give according to their values — including to support historically marginalized groups — is fundamental to the charitable sector. 

In December 2023, the Council on Foundations (the Council) and Independent Sector (IS) filed a joint amicus brief in support of the Fearless Foundation, an Atlanta-based organization led by Black women that helps combat underfunding in venture capital by providing grants, tools, and mentorship to women of color. The brief called on the U.S. Court of Appeals for the 11th Circuit to dismiss a lawsuit brought by the American Alliance for Equal Rights (AAER), which claimed that the Fearless Foundation’s grant program for Black female entrepreneurs was racially discriminatory.   

The Council and IS urged the court to rule in line with the First Amendment right of philanthropies and individuals to support charitable causes that align with their values, including efforts to support historically marginalized groups. More than 230 philanthropic and charitable organizations signed a statement in support of the brief. 

Lawsuit Updates and Outcome 

In June 2024, the court ruled that the AAER had standing to sue, and that the Fearless Foundation grant program must remain halted under a preliminary injunction while the case proceeded in court. 

In September 2024, the Fearless Fund and Fearless Foundation announced a settlement with AAER. Fearless ended the grant contest that was targeted in the lawsuit, but the settlement did not ultimately restrict any of the organization’s charitable activity or investment outside of the grant contest, according to Fearless. 

Independent Sector recommends that foundations, philanthropies, and funders maintain their commitments to racial equity. While the settlement has limited legal impact, as President and CEO Dr. Akilah Watkins says, “we remain concerned about forces in our society making it harder for nonprofits and philanthropy to live out our values and serve our communities.” 

Independent Sector, along with its partners and member organizations, will continue to stand against efforts to restrict the charitable sector’s vital work toward a more just, equitable society. 

For more information on the case and how this settlement impacts the charitable sector, see the resources below. 

Resources

Amicus Brief: Filed by the Council on Foundations and Independent Sector, the brief called on the court to dismiss the AAER lawsuit and uphold the First Amendment rights of people and charitable organizations to give in ways that align with their values.  

Standing for Philanthropy: See the list of more than 230 organizations that signed on in support of the Council and IS’s amicus brief. 

CEO Views: Standing Up for Our Sector’s Values: On the Independent Sector blog, Dr. Akilah Watkins called for nonprofit and foundation leaders to support the sector’s constitutional right to value-based giving. 

Protecting the right to give according to our values: In an article for Candid Insights, Dr. Watkins detailed how a court case against a small foundation carried serious implications for the entire charitable sector.  

AAER v. Fearless Foundation Settlement Update: Following the settlement, the Council on Foundations’ government and legal affairs team wrote an in-depth analysis of the lawsuit and its potential impacts on the sector. 

Fearless Foundation website: Learn more about the Fearless Fund and Fearless Foundation’s work to ensure women of color have equal access to the resources and support they need to succeed in business. 

Press Releases

• Council on Foundations, Independent Sector File Amicus Brief in Fearless Foundation Lawsuit to Protect Right to Give (December 13, 2023)
• As Court Rules Against Fearless Foundation, Council, Independent Sector Stand by Commitment to Funders’ Right to Give in Line With Values (June 3, 2024) 
• As Fearless Foundation Settles Case, Council on Foundations, Independent Sector Encourage Funders to Continue Giving in Line With Values (September 12, 2024)