Racial Equity in the Wake of Affirmative Action Ruling
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.
In 2023, the Supreme Court struck down Affirmative Action in college admissions. 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.
Things to consider:
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.
Compiled Resources
Racial Equity Advancement and Defense Initiative (READI)
In 2023, the Supreme Court of the United States (SCOTUS) banned the use of race as a determining factor in higher education admissions, emboldening right wing groups to attack racial equity policies and practices in the public, corporate, philanthropic, nonprofit, and other sectors.
We are proud to share READI with our membership - a collaborative effort led by ABFE, in partnership with Asian Americans/Pacific Islanders in Philanthropy, Hispanics in Philanthropy, and Native Americans in Philanthropy, to promote, expand, and defend race-explicit grantmaking and programming, ensuring that equity remains at the forefront of philanthropic efforts across diverse communities.
READI recognizes that SCOTUS’ decision is part of the centuries-long series of attacks on attempts to build the multi-racial, multi-ethnic democracy that we all deserve, and works to promote, expand, and defend race-explicit grantmaking and programming. Through the READI Resource Bank linked below, you can access tools to support nonprofits engaged in race-explicit grantmaking or programming.
Learn more about the initative here
Racial Equity Advancement and Defense Initiative (READI) Resource Bank
The Racial Equity Advancement and Defense Initiative (READI) Resource Bank is intended to be a repository of information, tools, and resources to help those who are committed to advancing racial equity and racial justice, primarily in the philanthropic and nonprofit sectors, understand the Supreme Court’s ruling and navigate the new legal and regulatory environments unfolding in many states around the country.
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.
Upcoming & Past Webinars
Upcoming Webinars
No upcoming webinars
Past webinars
- July 11, 2023 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 Here
- July 13, 2023 at 1:00 pm, “What does the Supreme Court's decision mean for foundations and charitable organizations?” from Council on Foundations
- March 7, 2024 at 2:00 pm: "How Foundations are Responding to the Supreme Court Affirmative Action Rulings" from Center for Effective Philanthropy, Resources Here
- June 13, 2024 at 3:30pm, "Understanding the Fearless Foundation 11th Circuit Decision" from Council on Foundations", Recording & Resources Here
Sector Reseach & Reports
- Center for Effective Philanthropy's Research Snapshot "How Foundations Are Responding to the U.S. Supreme Court Affirmative Action Rulings": Analyzing data from September and November 2023, this report shares how funders have responded internally and externally to the 2023 Affirmative Action rulings.
Sample Guidance
- EducationCounsel's Preliminary Guidance Regarding the U.S. Supreme Court's Decision in SFFA v. Harvard and SFFA v. UNC. This preliminary working draft has been developed to provide initial guidance regarding the Supreme Court’s SFFA opinions. They offer this draft, directional guidance to support understanding and leadership within the higher education community in light of immediate enrollment issues with which institutional leaders are grappling.
- 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. The memorandum sets forth three potential outcomes in the SFFA cases and walks through the implications of each for the diversity, equity, and inclusion efforts in which charitable foundations and nonprofits presently engage.
- Public Equity Group’s “What the SCOTUS Affirmative Action Cases Could Mean For Your DEI Work”
Need more support?
Reach out to us at mpc@mainephilanthropy.org if you have questions about any of the above resources and learning opportunities.
Staying the Course: Transformative Impact of DEI in Our Sector
PSOs launch Racial Equity Advancement and Defense Initiative (READI)
A new sector collaboration to provide funders and nonprofits resources to respond to threats and be proactive in their racial equity work.