In a case that highlights the legal battle over corporate diversity programs, the U.S. Court of Appeals for the Eleventh Circuit on Wednesday questioned whether a Reconstruction-era civil rights law prohibits a venture capital foundation from running a program that gives grant money to Black business women.

The lawsuit, brought by American Alliance for Equal Rights, claims a contest run by the Fearless Foundation violates the 1866 Civil Rights Act’s prohibition on racial bias in contracts. The foundation counters that the statute applies to employment but not to charitable grants meant to remedy imbalances and to convey a First Amendment protected message.