11th Circuit decision today holds that federal law bars a venture capital fund from issuing grants to companies based on the race of their owners.
This might be the most important decision in the year since Students for Fair Admissions in the area of affirmative action. There are a dozen cases around the country that are bringing claims similar to this one.
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The SBA 8(a) program’s definition of “socially disadvantage” is similar to that of the ARPA farm loan forgiveness program, which faced multiple injunctions in 2021 that the SG declined to appeal. This decision likely will be appealed, though, because of broader implications.
I suspect there are 5-6 votes at the Supreme Court to invalidate the 8(a) program, at least as-applied to these circumstances. Kavanaugh disagreed with a DC Circuit decision upholding the program in 2017.