The recent Supreme Court affirmative action decision may have closed a chapter in American higher education but opened the door to a new set of questions about the constitutionality and viability of race-conscious efforts in academia and beyond.
In two cases, Students for Fair Admissions, Inc. v. University of North Carolina and Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the Court ruled (6-3) and (6-2), respectively, that using race as a factor in student admissions violates the Equal Protection Clause of the 14th Amendment and Title VI of the Civil Rights Act of 1964. Now, the private sector has started to grapple with whether diversity, equity and inclusion (DEI) initiatives may also put organizations at risk of legal challenges. See Philanthropy Roundtable’s recent legal analysis on what the decision could mean for charities.
Diversity efforts in the workplace have been ongoing for decades, but DEI initiatives exploded in recent years. In philanthropy, DEI has manifested in a number of ways, including quotas for boards and nonprofit leadership, training for staff and demands for grantmaking to target particular groups focused on racial equity and racial justice work. Studies aiming to quantify racial grantmaking gaps suggest that as few as 8% of charitable dollars go to communities of color.
Social justice philanthropy, a segment of charitable giving supporting structural change to address inequities in marginalized communities, has been around for decades but gained new life following the murder of George Floyd. Corporations committed up to $340 billion, according to estimates by McKinsey, for the causes of racial injustice. Candid reports that philanthropy has earmarked nearly $17 billion in grants for racial equity work since 2020. New data collection initiatives such as Demographics via Candid (DvC) have also emerged to standardize the collection of demographic information from nonprofits to help grantmakers target donations to minority-led and minority-serving groups.
With so much time and charitable dollars invested in racial equity, philanthropic organizations are concerned about the implications of the Supreme Court’s affirmative action ruling. Ahead of the decision, philanthropic leaders weighed in. Some took a defiant tone. Satonya Fair, president of PEAK Grantmaking, said prior to the Court’s decisions: “Bring on the lawsuits.”
Over the last month, a sea of responses to the ruling from philanthropic leaders have echoed the same sentiment: The Court’s decision is a denial of “the clear, persistent and deeply ingrained inequities that define our educational system” and will be used as a tool to “push Black and brown people out of things they have earned in every facet of the economy such as hiring, housing, lending and learning.”
However, the Court made clear in its majority opinion “eliminating racial discrimination means eliminating all of it.”
Philanthropy Roundtable stands with others as voices in support of the Court’s decision. In line with other principled positions we have taken against (mandated) DEI efforts in philanthropy. The Roundtable’s approach to embracing and celebrating diversity is outlined by our True Diversity initiative’s statement of principles.
Even leaving aside the constitutional, legal and moral arguments against continuing to permit discrimination based on skin color, grantmakers who defend affirmative action in practice and spirit or engage in its offshoots, such as DEI and social justice philanthropy, leave themselves open to legal challenges.
Unfortunately, it has become a forgone conclusion that charitable donors should approach their grantmaking through the sole lens of advancing racial equity. Foundations have shifted their missions to fight inequality with only one strategy rather than many. White charitable leaders have also been called upon to move aside for people of color.
The intention of ensuring that opportunity is accessible to people in every corner of our nation and every person is treated fairly and justly under the law is commendable. However, how is sacrificing donor intent along the way justifiable, especially when it places funds at risk for those who are helped by an organization’s mission? The old adage that two wrongs don’t make a right still applies, and the Supreme Court’s affirmative action decision reinforced that principle.
Funders should not feel compelled by industry pressure or activists’ demands to abandon their missions, direct their dollars to particular grantees at the expense of others or suspend good giving practices in order to fulfill a social justice agenda. Such actions are virtue signaling at best and destructive to grantmaking and those who rely on charitable funds at worst.
Philanthropy does and should reflect our pluralistic society. Differing viewpoints in philanthropy should be welcomed. Yet, a toxic authoritarian sentiment among some–hopefully just a few–nonprofit and philanthropic leaders has emerged. They don’t believe that all views are good, deserve respect or should have a place in society. They make no room for debate.
The Supreme Court’s affirmative action decision may indirectly push back against the use of race consciousness in philanthropy. At the very least, it opens the door to discussions of whether social justice philanthropy should be universally adopted and makes room for those who would say no.
For more information, read Philanthropy Roundtable’s recent legal analysis on what the decision could mean for charities here.
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