Equal Protection Project Files Brief Opposing Progressive Insurance Blacks-Only Grant Program

2024-03-28 17:30:15

The Equal Protection Project (EqualProtect.org) has been following a case in Cleveland involving a contractual grant program sponsored by Progressive Insurance and designed to benefit small businesses, as long as the owners are Black.

The case, titled Roberts v. Progressive Preferred Insurance, et al., began in August of last year when Freedom Truck Dispatch LLC and its owner Nathan Roberts, who is White, sued Progressive, with the help of America First Legal, in the U.S. District Court for the Northern District of Ohio in Cleveland. You can review the initial Complaint here, but the first paragraph provides a good summary of the case:

Progressive Preferred Insurance Company provides commercial insurance to commercial trucking and delivery companies. It also engages in patently unlawful racial discrimination by offering a $25,000 “grant” to 10 “Black-owned small businesses to use toward the purchase of a commercial vehicle.” Progressive does not permit non-black-owned small businesses to even apply for the grant. Plaintiffs Nathan Roberts and Freedom Truck Dispatch bring suit to enjoin Progressive from continuing these racially discriminatory practices and recover classwide damages on behalf of everyone who has suffered unlawful racial discrimination on account of this program.

The case asserts one “cause of action” or legal claim to relief, namely, federal statute 42 U.S. Code § 1981, entitled “Equal Rights under the Law.” This statute states, in important part, that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts,” and also states that “rights protected by this section are protected against impairment by nongovernmental discrimination and impairment,” meaning that private parties, not just the government, are prohibited from racial discrimination in contracting. And this law has been around awhile, as it was enacted in 1866.

So the Plaintiffs, and EPP, think that Progressive is in violation of 42 U.S. Code § 1981 by offering its contractual grant program only to Black business owners.

Of course the first thing Progressive did was to move to dismiss the case, and one of the things that caught our eye about the case was that seven days after Progressive moved to dismiss, SPLC filed an amicus curiae, or friend of the court, brief supporting Progressive.

SPLC, as we have reported extensively, has called Moms for Liberty a “Hate Group,” had to apologize and pay a $3.375 million settlement for wrongfully labeling Maajid Nawaz an anti-Muslim extremist, assisted Spotify in policing music for “Hate Content,” and committed other acts of malfeasance over the years.

So when we read their brief basically stating that 42 U.S. Code § 1981 is designed to, and in fact does, benefit only Black persons, we knew we had to weigh in.

So EPP planned to file an amicus brief in support of Plaintiffs opposition to Progressive’s motion to dismiss, but the Plaintiffs filed an Amended Complaint addressing some of the issues Progressive brought up in their motion to dismiss, which mooted out the motion to dismiss. You can review the Amended Complaint, which adds some specificity to the facts and allegations in the Complaint, here.

Did Progressive accept the Amended Complaint and decide to conduct discovery and then try the case? Of course not. They moved to dismiss again, and SPLC re-filed its amicus brief supporting dismissal.

The Plaintiffs filed their Opposition to Progressive’s renewed motion to dismiss last Friday, March 22, 2024, and EPP filed its own amicus curiae brief in support of Plaintiffs on March 28, 2024 (full embed at bottom of post).

Read the whole thing, of course, but we argued three key points in the brief.

First, allowing this racially discriminatory program to proceed because it would impinge on Progressive’s First Amendment free speech rights, which Progressive had argued in its motion to dismiss, was a non-starter:

The Court’s potential grant of Defendants’ motions on this ground may negatively impact the efforts of EPP and other similar civil rights groups to vindicate constitutional and statutory protections against racial discrimination, by carving out a massive loophole to characterize discriminatory conduct as protected speech. That is because the Court holding that the racially discriminatory conduct alleged in this case is the equivalent of expressive speech and therefore protected by the First Amendment would eviscerate not only 42 U.S.C. § 1981, but also other civil rights laws, as racially discriminatory conduct could be excusable as protected expressive speech….

Importantly, grant of Defendants’ motions to dismiss on this issue would embrace the growth of an entire discriminatory, Jim Crow-like nationwide regime, where discrimination against any and all individuals based on any skin color would not only be legal, but it would also likely become the norm. All a business would have to do to evade liability is hold itself out as expressing a discriminatory opinion regarding the benefits its business solution provides to members of its preferred race.

Second, Progressive had argued that the Plaintiffs lacked standing because they had suffered no “injury-in-fact,” a requirement for standing to sue in federal court. That is, of course, wrong, as we pointed out:

Progressive also argues that this case should be dismissed on standing grounds because “Plaintiffs fail to plausibly allege any injury-in-fact.” The Court’s potential grant of Progressive’s motion to dismiss on this ground would be equally damaging, as a finding of no alleged harm in a case of alleged racially discriminatory conduct will help normalize racial discrimination and render the very real, irreparable harm that flows from racial discrimination irremediable….

Other cases in and out of this Circuit agree that racially discriminatory conduct causes injury. See Perrea v. Cincinnati Pub. Sch., 709 F. Supp. 2d 628, 640 (S.D. Ohio 2010) (“one form of injury . . . is being forced to compete in a race-based system that may prejudice the plaintiff”); Rogers v. Windmill Pointe Vill. Club Ass’n, Inc., 967 F.2d 525, 528 (11th Cir. 1992)(“[I]njury may be presumed from the fact of discrimination”); Agudath Israel of Am. v. Cuomo, 983 F.3d 620, 636 (2d Cir. 2020)(“[A] presumption of . . . injury flows from a violation of constitutional rights.”)(quoting Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996)); Ass’n for Fairness in Bus. Inc. v. N.J., 82 F. Supp. 2d 353, 363 (D.N.J. 2000) (finding irreparable injury and entering a preliminary injunction where the Plaintiffs were forced to “compete on an unfair playing field” as a result of a racial set-aside program); Vitolo v. Guzman, 999 F.3d 353, 361 (6th Cir. 2021)(finding irreparable harm where the government was “allocat[ing] limited coronavirus relief funds based on the race and sex of the applicants.”).

Third, Progressive’s amicus SPLC had argued that Section 1981 was enacted to benefit Black persons after the civil war in 1866, and so could not be used by the White Plaintiff here to stop the racially discriminatory program. That is, once again, wrong, as we pointed out:

[I]mportantly, SPLC…ignores Justice Thurgood Marshall, the author of McDonald v. Santa Fe Santa Fe Trail Transp. Co., 427 U.S. 273 (1976), who thoroughly dismantled the idea that § 1981 was not enacted for majority plaintiffs’ benefit:

The question here is whether [§] 1981 prohibits racial discrimination in private employment against whites as well as nonwhites. . . .
[O]ur examination of the language and history of [§] 1981 convinces us that [§] 1981 is applicable to racial discrimination in private employment against white persons. . . .

While it is, of course, true that the immediate impetus for the bill was the necessity for further relief of the constitutionally emancipated former Negro slaves, the general discussion of the scope of the bill did not circumscribe its broad language to that limited goal. On the contrary, the bill was routinely viewed, by its opponents and supporters alike, as applying to the civil rights of whites as well as nonwhites. . . Id. at 285-87, 289 (citing the extensive legislative history of 42 U.S.C. § 1981).

Justice Marshall concluded, 42 U.S.C. § 1981 “was meant, by its broad terms, to proscribe discrimination in the making or enforcement of contracts against, or in favor of, any race.” Id. at 295. This Court should reiterate that legal principle, deny Defendants’ motions to dismiss, and hold that Section 1981 does not bar Plaintiffs here from bringing this case against Defendants.

You might remember U.S. Supreme Court Justice Thurgood Marshall, one of the heroes of Brown v. Board of Education, who dedicated his life to ending racial discrimination, and who is probably rolling over in his grave with people like Progressive resurrecting racial discrimination in the name of DEI/CRT and “anti-racism.”

Interestingly, this case is a near-parallel to one called Fearless Fund brought in Atlanta against a hedge fund that sponsored a grant contest open only to Black women. See our prior posting:

As you can see, our latest post concerned oral argument conducted in the U.S. Court of Appeals for the Eleventh Circuit, which Professor Jacobson and I listened to live on January 31, 2024, in which Fearless Fund’s attorney agreed with EPP that holding racial discrimination excusable as free speech would allow a business to discriminate against Black persons just as easily as it would allow a business to discriminate against White persons. The Eleventh Circuit’s opinion, which we are hoping demolishes this specious “First Amendment excuses racial discrimination” argument, is expected soon.

Essentially, Fearless Fund in Atlanta, and Progressive here in Cleveland, are willing to throw 200 years of work dismantling racial discrimination out the window.

EPP is not going to let that happen.

We will keep you updated on the Roberts v. Progressive case and Fearless Fund cases as they progress.



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