In the months right after the Supreme Court ruled on college affirmative-action programs, many foundations examined their own efforts to ensure grants made to advance racial equity weren’t at legal risk, but few found a need to make big changes, according to a study released Wednesday.
Still, foundation boards might be rethinking the implications of the court’s ruling as it reverberates through the courts in several prominent lawsuits.
The survey of foundations conducted from September to November by the Center for Effective Philanthropy found that 53 percent of foundations either already had or planned to have internal discussions about the ruling. The center described the findings, taken from responses from 280 foundations, as a snapshot rather than a rigorous survey.
The Supreme Court’s decision on college admissions didn’t affect grant making directly, but foundation leaders and legal experts feared the decision could be a threat to grants supporting diversity, inclusion, and equity programs.
A majority of foundations kept their discussions in-house, debating what to do at the staff level, the survey found. Nearly three-quarters said they did not have plans to consult with lawyers about whether their grant-making programs were vulnerable to a lawsuit, and nearly two-thirds had not broached the topic with their grantees, according to the survey.
The survey found that grant makers led by people of color were far more likely to have had discussions with staff, grantees, or legal counsel. For instance about three-quarters of foundations led by a person of color said they held staff discussions on the subject, but slightly less than half of foundations with white leaders held similar talks.
In a series of interviews with foundation leaders that accompanied the survey, the center found that many foundations that debated their grant-making practices immediately after the Supreme Court ruling decided to leave them intact, said Elisha Smith Arrillaga, the Center for Effective Philanthropy’s vice president for research.
“The folks having conversations at that time were not going to make changes to their work,” she said. “There were some folks who said they were basically reaffirming their work in racial equity and staying the course.”
New Court Cases
Smith Arrillaga suggested foundations may have looked into the matter more closely since the fall survey. Since then, some of the first cases testing the Supreme Court decision’s application to philanthropy have progressed in the courts.
In August, the Supreme Court decision was the basis for a lawsuit filed by conservative legal nonprofit American Alliance for Equal Rights against the Fearless Fund, which consists of both a venture-capital fund and a foundation. The Fearless Fund provides grants to Black women entrepreneurs.
In December, the Council on Foundations and Independent Sector filed a friend-of-the-court brief in support of the Fearless Fund, arguing that race-based grants are not discriminatory,but rather seek to address the negative consequences of discrimination. More than 200 philanthropies and nonprofits followed up with a letter that defended race-based grants, saying charitable giving is a form of expression protected by the First Amendment.
One of the grant makers that signed the letter was the Surdna Foundation.
In the months preceding the Supreme Court case, Surdna staff had many internal conversations with its lawyers about whether the foundation would be vulnerable to a lawsuit, said Surdna’s president, Don Chen.
The foundation decided that its grant making and operations complied fully with anti-discrimination laws and continues to monitor the legal landscape to ensure it remains so. By supporting efforts to create wealth and build political might among people of color and others who have been marginalized, Chen said the foundation was practicing its First Amendment rights.
“We determined pretty early on that we would remain committed to our mission, which is to advance racial justice,” Chen said.
Chen said that more than 75 percent of Surdna’s grants are for general operating support. He said his staff had reached out to grantees to ensure they knew they could use their grant dollars to consult with lawyers about whether their nonprofit programs might be targeted with lawsuits.
The Center for Effective Philanthropy is currently following up with a similar survey of nonprofits that receive foundation support to determine whether grant makers that support them have pulled back or offered any additional support because of the Supreme Court decision. Smith Arrillaga said the results will be published in May or June.
