Existing Together from the Beginning: Freedom to Contract and Black Mutual Aid

In a new wave of litigation, conservative legal organizations are attempting to rely on Reconstruction-era civil rights legislation to prevent nonprofits, charities, foundations, and other privately organized groups from engaging in race-conscious work. Unlike the Supreme Court’s recent rollback of affirmative action, which dealt with universities’ ability to consider race in admissions as state actors and as recipients of federal funding, a series of lawsuits now challenge the ability of private organizations to consider race in how they invest money and resources to create social impact. Adding fuel to the fire, on January 21, 2025, President Trump issued an Executive Order entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” which purports to prohibit “all discriminatory and illegal [racial] preferences” and directs federal agencies to enforce the order through investigating the private and nonprofit sectors. The legal attack on race consciousness in charitable work has distinct implications from the Supreme Court’s rollback of other efforts to limit race-conscious state action. The attack on race-conscious charity is grounded in one of the major historical civil rights statutes, 42 U.S.C. § 1981, which governs private contracting. Thus, the new frontier in affirmative action litigation raises questions regarding the law’s role in regulating voluntary private action to address racial justice problems, in particular through philanthropic action. Relying on § 1981 to prohibit race-conscious charitable work is deeply ahistorical, conflicting with both the purpose of the statute and how race-conscious giving was understood at the time the Civil Rights Act of 1866 was passed. Under that statute, which was the precursor to § 1981, Black charitable work was both a legal and legitimate strategy for addressing the gap in economic provisions for Black citizens. Indeed, the Congress that adopted the Civil Rights Act encouraged mutual aid as an extralegal solution to address economic inequality resulting from the private market that the government failed to address. In addition to challenging the misuse of § 1981 to restrict race-conscious charitable giving, advocates seeking to continue race-conscious giving should consider returning to mutual aid, a strategy of pursuing social justice through collective philanthropic action. Both historically and today, mutual aid plays a critical role in offering alternative political visions and solutions to pressing racial justice problems.