The results of the recent CEP survey regarding foundation reactions to the Students for Fair Admissions v. Harvard (which consolidated a similar case against University of North Carolina) decision reflect the broad diversity of the foundation sector and continued misunderstandings regarding the impact of the decision (and existing law). The findings also confirm my sense that many social justice-focused foundations are not retreating from their goals or mission despite concerns among some that necessary attention to legal risks signals a retreat.
As noted in comments in the survey and prior commentary, the pursuit of racial justice has never been a straight line or devoid of obstacles. The issues around race can be deeply personal, especially among individuals who have spent their lives advocating for the worthy cause of racial justice. And a Supreme Court opinion reversing 45 years of precedent naturally unleashed myriad reactions. This is also occurring in a broader context where our nation’s history of discrimination is being challenged in legislation and litigation by conservative forces. Some advocates see legal adjustments to approaches to racial justice as a step backward and not confronting the reality of our history.
The complexity of the legal issues and uncertainty about the implications of the Supreme Court’s decision added to the angst as articles, seminars, and opinions proliferated. The survey from CEP provides necessary and helpful context based on wide outreach, allowing us to move away from reliance on anecdotal experiences.
The following are my reflections on the survey results and other observations based on my experience, conversations with many of my legal peers, and my understanding of the law (this reflects my personal views and not necessarily the views of the MacArthur Foundation, except as otherwise indicated):
- The Supreme Court’s opinion did not directly address grantmaking by private foundations and therefore foundations that did not change their approach to funding racial justice — as reflected in the CEP survey — could justify that action.
- It begs the question, however, what approach were foundations taking before these decisions, and whether and to what extent the foundation was considering existing law, including, but not limited to, section 1981 of the Civil Rights Act that prohibits discrimination in contracting. Whether section 1981 even applies to grants intended as gifts is a threshold question that must be considered in any approach, as well as the rights enjoyed by grantmaking organizations under the First Amendment to the United States Constitution to convey a message based on their mission and who they choose to support. The Fearless Foundation case and others are now testing those issues in the cauldron of litigation.
- The language used in the Supreme Court opinion addressing issues of discrimination and anti-discrimination laws further emboldened forces and organizations that had already begun to attack a range of racial justice programs through litigation, letters, hearings, and legislation. These cases and attacks have proliferated since the opinion was issued and will continue to do so.
- Foundations and nonprofit organizations would be prudent to recognize the evolving legal environment and increased litigation risk faced by organizations engaged in furthering racial justice or supporting those efforts. The law will continue to evolve, and foundations and nonprofits must pay attention and adapt.
- It is not retreating from racial justice or giving in to conservative forces to recognize the risks and take steps to mitigate the risks while pursuing goals and mission. Recognizing litigation risk does not mean, however, that organizations with aspirational goals of racial justice need to reformulate those goals or cease their efforts.
- It does mean that the boards of organizations involved in these efforts would be wise to engage with qualified legal counsel to understand their risks and determine their risk tolerance considering their mission and approach. The findings in the survey that only three out of 10 foundations had engaged in the discussions with legal counsel suggests that more work needs to be done to educate boards about their responsibilities.
- There are myriad strategies available to advance racial justice consistent with existing law without losing sight of the North Star of racial justice. Making no strings attached gifts may be one strategy. Using criteria in decision making other than race is another; this latter strategy does not mean an organization needs to be blind to the impact of those criteria; nor does it mean that an organization pursuing such a strategy is neutral as to the outcome or “race neutral”.
- Foundations need to be aware of the burdens on and concerns of grantees involved in racial justice issues and the heavy weight that many of those organizations and their leaders are carrying, particularly smaller organizations without access to necessary resources. They need to communicate the context effectively with their grantees and listen to their concerns. While more than one third of foundations have had such discussions, this is not enough.
Foundations and the sector have come together in ways to provide the necessary support, but more needs to be done to make sure that nonprofit organizations are aware of these efforts and to provide additional resources. For now, some of the efforts that all organizations should be aware of include the following:
- A program established by the Lawyers Committee for Civil Rights Under the Law providing pro bono counsel to organizations in need of lawyers to establish lawful programs to advance racial justice or to defend against attacks. Ford Foundation, Robert Wood Johnson Foundation, and MacArthur among others have provided support for this program.
- Resources can be accessed on the website of Association of Black Foundation Executives.
- Some foundations are increasing grant amounts for grantees to obtain legal counsel to address these issues or are paying directly to counsel to provide advice to the grantees.
- Many groups are having conversations and strategizing on how to advance an affirmative narrative to rebut the narrative advanced by conservative organizations attacking diversity, equity, and inclusion programs as reverse or prohibited discrimination. The teaching of the history of this country and the impact of discriminatory practices is a necessary part of this approach.
- General counsels of many foundations have been working hard and collaboratively to advance the goals of the organizations they serve. The sector is fortunate to have a diverse set of exceptional general counsels and committed outside counsel to help the boards of their organizations and their grantees on this journey.
As the survey reflected, MacArthur and many other foundations remain committed to their goals of racial justice. Speaking only for the MacArthur Foundation, we will use all the legally available tools at our disposal to pursue our goals of racial justice. This is not a time to step back from the pursuit of racial justice and we — and, based on the CEP report, others, too — do not intend to do so.
Joshua Mintz is the vice president, general counsel and secretary of the John D. and Catherine T. MacArthur Foundation. Views expressed herein are his own except as specifically noted.
