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.
- July 11th at 1:00 pm, “Affirmative Action Cases: Impact on DEI and ESG—Considerations for Universities and Colleges, Employers, and Other Organizations” from Morgan Lewis, recording & resources on this page
- July 13th at 1:00 pm, “What does the Supreme Court's decision mean for foundations and charitable organizations?” from Council on Foundations
- July 13th at 2:00 pm, “MPC's Post-COF Session Affirmative Action Debrief” from Maine Philanthropy Center
- The Board’s Role in Adopting and Overseeing an Organization’s Approach to Race-Conscious and Race-Exclusive Activities and How Counsel Can Help (attached)
- Hewlett Foundation’s “Resources to prepare and respond to the Supreme Court’s affirmative action decisions”
- Lawyer’s Committee for Civil Rights “Four Key Points Stakeholders Must Consider to Ensure Educational Opportunity for All”
- Chronicle of Philanthropy – “What Nonprofit and Foundation Leaders are Saying About the Supreme Court Affirmative-Action Ruling” (attached)
- Ford Foundation's “Statement in response to the US Supreme Court’s Decision in Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. President and Fellows of Harvard College”
- Public Equity Group’s “What the SCOTUS Affirmative Action Cases Could Mean For Your DEI Work” (attached)
- MTO’s “Memorandum for Charitable Foundations and Nonprofits Addressing the Potential Consequences of the Supreme Court’s Upcoming Decisions on Considering Race in College Admissions”
- Education Counsel's Preliminary Guidance - July 6 (attached)
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.