Impact of the SCOTUS Affirmative Action Decision

Publication date: 
June 2023

Please note, this resource will be updated on an ongoing basis. The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only.

As you may have heard, the Supreme Court struck down Affirmative Action in college admissions yesterday. This decision is anticipated to have broad impact beyond the college admissions space and may include nonprofit programming and funding programs that use a racial equity approach. Below are some resources we’ve been compiling to help your foundation navigate this space.

Pro Bono Legal Services for Nonprofits & Foundations

The Lawyers’ Committee for Civil Rights Under Law (Lawyers’ Committee) has been deeply involved in the fight to protect and advance racial equity, affirmative action, and DEI programs across many sectors. As part of this work, the Lawyers’ Committee recently launched a new initiative, the Protecting and Advancing DEI Pro Bono Initiative (PADEI), to provide tailored advice to nonprofits that are seeking information about their potential legal exposure and options given the current backlash against DEI and attacks on racial equity programs. Below is a description and more information about how to apply for services.

The PADEI project provides free legal counsel and, when necessary, representation to eligible private, non-profit, and government entities with questions about their racial equity initiatives. Depending on the need, as well as the depth and complexity of the issue(s) at hand, Lawyers' Committee staff and a pro bono advisory group will provide a range of assistance to entities seeking help. A nonexclusive list of potential issues for which entities may seek pro bono assistance includes guaranteed income programs; racial health initiatives; private contractor services; government contracts; corporate governance; environmental social governance; employment policies and practices (e.g., DEI measures); internships, scholarships, fellowships, training and mentorship programs; equitable lending; and private grantmaking. The aim of PADEI is to empower organizations to continue their critical work and to do all that is possible to advance racial equity within the confines of the law. The online initial intake form can be found here.

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Things to think about:

  • For now, nothing needs to change. If you are already operating within the bounds of the law within your organization in your hiring practices, in your decision-making practices and in other spaces, the affirmative action decision should not impact your work. For those organizations committed to advancing racial equity and diversity in our sector the biggest risk is doing nothing or rolling back established programs and initiatives.
  • You can and should continue to measure demographic data! One of the key arguments in the AA rulings was related to the understanding that there was no “real endpoint” in sight for these programs. Setting goals and measuring those helps to establish that you are working toward something. If you are using this data to inform parts of your work, and not the decision-making process for individual grants or participants, you can and should collect demographic information.
  • Be Proactive: Forewarned is forearmed. Funders have resources to take risks and to lead from the front on this issue. Connect with your counsel and create proactive discrimination defenses.
  • Give operating support! There has been some concern expressed that grants can be interpreted as contracts (under Section 1981). One easy way to reduce the appearance that expectations are being met is to give general operating support as opposed to project-based funding.
  • Support your grantees ability to obtain counsel. Nonprofits will likely be at the frontline of these fights and many lack access to sophisticated legal support. If you are supporting your grantees to engage in DEI work, consider setting aside funding (or even starting a fund) for access to additional support like additional training and legal counsel.
  • These decisions will likely have a ripple effect. While the timing is unclear, we know other cases are already in the system to further challenge equity work. These cases will be able to use these supreme court rulings to their advantage and we will likely see more decisions sooner rather than later.
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