This is a concise excerpt drawn from the full opinion issued today in African People’s Education and Defense Fund, Inc. v. Pinellas County. The ruling was authored by Eleventh Circuit Judge Kevin Newsom and joined by Judge Andrew Brasher and District Judge Paul Huck of the Southern District of Florida:
The Florida nonprofit organization African People’s Education and Defense Fund (APEDF) sought two separate COVID-relief grants funded through federal resources allocated to Pinellas County. Initially, the Pinellas County Board of Commissioners approved the first grant, but later withdrew that approval; it then denied the second grant application outright.
APEDF sued, claiming the Board revoked the first grant and denied the second because of race and due to the group’s association with the “Uhuru Movement,” which APEDF describes as a coalition of like-minded groups and individuals advocating Black community empowerment.
The court permitted APEDF’s First Amendment claim to proceed:
When the government dispenses public funds, it acts in its sovereign capacity rather than as an employer. Pinellas County was not seeking an ongoing relationship with APEDF, nor was it offering compensation for APEDF to provide a service or act as an agent. Instead, the County was simply deciding whether APEDF’s contributions to the public justified granting money. In that light, APEDF is less akin to an employee or a traditional government contractor and more like a typical citizen whose viewpoints on public matters the government has no legitimate interest in suppressing.
To be sure, APEDF was not—and is not—legally entitled to a COVID-relief grant. And as the County emphasizes, the government does not engage in viewpoint discrimination merely by “selectively funding a program to promote activities it believes to be in the public interest, without simultaneously funding an alternative program that seeks to address the problem differently.” That said, even when providing subsidies, the government may not aim to suppress dangerous ideas. … “Even though a person has no right to a valuable governmental benefit and even though the government may deny the benefit for various reasons, there are grounds on which the government cannot rely.” …
The essence of APEDF’s First Amendment claim here is that the County manipulated the ARPA grant program to suppress ideas it deemed dangerous—specifically, those connected with the Uhuru Movement. That appears to be the very sort of claim the Court in NEA v. Finley (1997) suggested might have merit. While the government can deny funding for many reasons, it “may not deny” a discretionary benefit on grounds that infringe a person’s constitutionally protected interests—especially, the right to free speech. See also Speiser v. Randall (1958) (rejecting the notion that tax exemptions cannot burden speech). …
Having concluded that APEDF deserves full First Amendment protection, we reiterate the standard for evaluating a retaliation claim: APEDF must allege (1) that it engaged in constitutionally protected speech or association, (2) that it faced adverse actions likely to chill a person of ordinary firmness from continuing that activity, and (3) that a causal link connects the adverse actions to the protected activity….
APEDF argues that the grants were crucial to its operations and that the County’s actions would likely deter a nonprofit of average resilience from engaging in expressive association. The County contends there was no chilling effect because APEDF remains free to participate in protected expressive association—including with the Uhuru Movement—without the benefit of grant funding, and indeed it continues to do so. … We find APEDF’s argument more persuasive …
APEDF has adequately alleged that it was placed in a sufficiently coercive situation. The County invited nonprofits to apply for grants intended to mitigate the financial damage caused by the COVID-19 pandemic. APEDF prepared and submitted two competitive grant proposals detailing the economic harm it endured and why it needed the funds. It achieved high scores on objective metrics and initially received a $36,801 grant to obtain radio equipment so Black Power 96 could keep disseminating timely information about local health and educational resources and emergency alerts. However, APEDF contends that, because of its association with the Uhuru Movement, its first grant was revoked and its second proposal—for a $67,327 grant to acquire a much-needed backup power generator—was denied. Reading the facts in the light most favorable to APEDF, the County appears to have effectively punished APEDF for its association with the Uhuru Movement, forcing it to choose between that association and a significant cash infusion that its objective circumstances indicated it deserved….
APEDF’s Equal Protection Clause claim of race discrimination was also allowed to proceed:
We begin by considering whether a corporation—an entity without a natural person status—may bring a race-discrimination claim under the Equal Protection Clause. Guided by our precedents, we hold that it can. A corporate entity does not need to possess a racial identity to pursue a race-discrimination claim under the Equal Protection Clause. Even a colorless corporation can suffer an injury due to a government actor’s intentionally biased conduct, even if that prejudice targets others….
APEDF maintains that the County treated it unfairly because many of its leaders are Black, most of its staff and volunteers are Black, and it serves the Black community. In other words, APEDF contends it was subjected to unequal treatment due to its association with a protected class. Under our precedent, that suffices….
APEDF has plausibly alleged both direct and circumstantial evidence showing the County’s discriminatory intent. On the direct side, there are overtly race-coded messages between Latvala and Bonneau. Latvala’s initial remark suggested APEDF’s name had caught his attention: “Google the African peoples one.” Later, he asked to check whether the radio equipment specified in one grant was “for Black Power 96.” In another exchange, during a later Board work session, Latvala objected to APEDF’s ties with the Uhuru Movement, which he claimed were linked to “black nationalist groups.”
Circumstantial evidence similarly supports a discriminatory motive. First, the County seemingly departed from its usual procedures and standards when revoking and denying APEDF’s funding requests. APEDF’s first grant application ranked fourth among 55 applications, and the Board funded the 34 top-ranked organizations, including APEDF. Notably, APEDF’s grant was the only one later revoked, and it was withdrawn without notice. For the second grant, APEDF again ranked highly—fourth out of 78 applications—yet the County staff proposed removing three organizations, including APEDF, from the list, and the Board ultimately funded everyone except APEDF.
Second, APEDF plausibly alleges that similarly situated white-led organizations were treated more favorably, and that the County’s explanations for the different treatment do not hold up. For instance, regarding the first grant’s revocation, Latvala asserted at a Board meeting that the County should “prioritize people over products and things.” Yet APEDF’s complaint notes that while its grant was revoked, four nonprofits serving predominantly white communities—and not Black-led—received funding for similar “products and things,” such as renovations, computers, a truck, and furniture.
Finally, APEDF plausibly contends that the County sought a pretext for its discriminatory behavior. Recall Latvala’s text: “[T]he Uhurus are claiming we are discriminating if we defund them.” But he continued, “One of my questions yesterday was about political parties being eligible for funding, so we are going to use that—because, as I’ve said, this isn’t my first rodeo.” …
Accepting all reasonable inferences, APEDF has plausibly alleged that the County intentionally discriminated against it on the basis of race when it revoked the radios grant and then denied the subsequent grant request….
The court, however, rejected APEDF’s due process claim.
Luke Charles Lirot and Rachel Ricks (Law Office of Luke Lirot) represents plaintiff.
