The Path Forward: How Funders Can Respond to the Supreme Court’s Affirmative Action Rulings

In the wake of the U.S. Supreme Court’s majority decision to eliminate race-conscious admissions policies at U.S. colleges and universities, I wrote a response that was driven, in part, by my personal journey and unwavering belief that race-based affirmative action is inextricably linked to access, justice, and freedom.  In Justice Ketanji Brown Jackson’s dissenting opinion in Students for Fair Admissions, Inc. v. University of North Carolina, et al., she eloquently outlines the history of various discriminatory laws and practices that were intentionally designed to undermine the advancement of Black people in the United States.

All throughout U.S. history, there has been a backlash (or as some people say, a white lash) that seeks to erode or eliminate any advances for historically marginalized groups, following a civil rights breakthrough or any form of socio-political-economic progress. For example, during the Reconstruction Era, when Congress passed the 13^th, 14^th and 15^th amendments, there were subsequent state and federal policies such as the Separate but Equal Doctrine aimed to circumvent civil liberties and sabotage social-economic progress.

For many of us, SCOTUS’ affirmative action rulings in 2023 are a part of that long history to disrupt and impede progress. In this instance, following the murders of Ahmaud Arbery, Breonna Taylor, George Floyd and other people of color in 2020, we saw an unparalleled uprise in public support and stances against racism. Foundations increased payout to fund racial justice efforts; local and state governments declared racism a public health crisis; and many companies deployed hundreds of millions of dollars in support of race-based initiatives and projects.

Today, states are banning DEI initiatives and companies are cutting DEI positions and programs, but — according to CEP’s Research Snapshot, How Foundations are Responding to the U.S. Supreme Court Affirmative Action Rulings — a “majority of foundations are not making changes to their ongoing work” in spite of SCOTUS’ affirmative action rulings. This data point is particularly encouraging, especially given the widespread anecdotal stories about “DEI fatigue” or foundations halting funding in fear of potential lawsuits for supporting DEI and/or social justice initiatives.

The Vital Role of Reality Checks

After SCOTUS’ majority ruling in June 2023, this was my fear: anti-DEI antagonists and fearmongers would weaponize the holding in SCOTUS’ majority opinion and erroneously extend it beyond the specific facts and context of the affirmative action cases to justify and proliferate their anti-DEI agenda in other areas of society. In fact, even prior to the 11^th U.S. Circuit Court of Appeals’ decision, in September 2023, to block the Fearless Fund from only considering applications from Black women for a grant program, I heard a few stories about foundations being reluctant to hire BIPOC asset managers or support BIPOC-led consulting firms due to SCOTUS’ affirmative action rulings.

Apparently, some foundations were operating under the falsehood that SCOTUS’ elimination of race-conscious admission policies also prohibited funders from considering race when hiring professional service vendors. I have also heard stories about local and state governments using SCOTUS’ ruling to thwart Minority Business Enterprise (MBE) programs and restrict access to public contracts. In an era of heightened misinformation, news deserts and media manipulation, it is vitally important for foundations to support media literacy programs, journalism, and democracy building. Without reliable and truthful news and information, we will never be able to achieve racial justice, climate justice or a full-fledged, multi-cultural democracy.

Effective Grantmaking Doesn’t Happen in Isolation

Another finding of CEP’s research was that “[d]iscussions about the implications of the Supreme Court rulings are less likely to take place at foundations that are not led by a person of color, even accounting for whether the foundation is funding social justice work.”  While I cannot speak for all people of color leading foundations, when I arrive at work, I simply cannot turn off the real world — our grantmaking and work does not function in isolation. At The George Gund Foundation, we discuss implications of all federal, state, and local legislation that impact or may impact our partners and community.

To that point, at our board meetings, we rarely discuss individual grants; instead, we use that time to engage in generative discussions with our trustees about injustices and explore ways to strategically leverage the foundation’s resources and influence to support our grantee partners’ efforts. We believe our effectiveness is tied to — among other things — staying informed and understanding our grantee partners’ work. In fact, based upon our most recent Grantee Perception Report (GPR), we humbly ranked in the top 96^th percentile among similarly situated foundations in the category of “Impact on and Understanding of Grantees’ Fields.”  This is only possible because we listen to our partners and seek to learn with and from them.

How Funders Can Respond to the Real Consequences of the Rulings

Moreover, after SCOTUS’ affirmative action rulings, I met with one of my colleagues who works in the education field. Following a discussion about the possible consequences of the decisions, I created a short list of actionable items for funders to consider:

1. Underwrite the cost of legal education, legal opinions, legal representation, and/or public policy advocacy for grantee partners who may need support amid push back from other funders, government, private citizens, anti-DEI antagonists, etc.
2. Support college access programs and/or on-campus programs that offer free tuition or scholarships for students based upon first-generation status, an interest in service learning, residency/zip code, or socio-economic inequities such as the Posse Program, Say Yes! Cleveland, The Bonner Program, Young Scholars Program, and others.
3. Support colleges and universities that provide summer learning and campus immersion programs for first-generation college students and/or students experiencing economic hardship.
4. Support democracy building efforts, including — but not limited to — power-building, community engagement, civic leadership development, voter education, voter registration, and voter mobilization in BIPOC and historically marginalized communities.
5. Fund media and journalism solutions that promote fair, accurate and truthful information such as National Public Radio, The Marshall Project, and their local affiliates.

All of the aforementioned suggestions fit squarely within the confines of permissible activities for foundations.

While SCOTUS’ affirmative action decisions represent yet another dark moment in U.S. history, the democratic process has shown us — time and time again — that there is a path forward: it is called the ballot box.

U.S. Supreme Court Justice John Marshall Harlan once wrote, “What the nation, through Congress, has sought to accomplish in reference to [Black people] is — what had already been done in every State of the Union for the white race — to secure and protect the rights belonging to them as [free people] and citizens; nothing more.” To that point, freedom and justice should never be considered a zero-sum game in representative democracies.

Anthony Richardson is president of The George Gund Foundation and vice chair of CEP’s Board of Directors.