Much of the philanthropic world reacted angrily to a spate of high-profile decisions by the Supreme Court last month on affirmative action, student-loan forgiveness, and business practices concerning same-sex couples.
Even before the decision on using race as a factor in college admissions, a legal analysis sponsored by the William and Flora Hewlett Foundation warned it could have wide-ranging effects on antidiscrimination policies in employment and other areas of American life. (The Hewlett Foundation is a financial supporter of the Chronicle.)
A joint statement signed by more than 150 foundations and organizations representing donors declared that the ruling “threatens to return this nation to a time when education and opportunity were reserved for a privileged class.”
Phil Buchanan, president of the Center on Effective Philanthropy, went even further. “In three decisions issued in the final days of its term,” he wrote, “the Supreme Court of the United States has struck serious blows against the push for a more equitable and just American society.”
Other groups made similar pronouncements, with only the conservative-leaning Philanthropy Roundtable expressing support for the Supreme Court.
Looked at more closely, however, the decisions are not as far-reaching as these reactions suggest, although they do leave a good deal unsettled. Philanthropy would have a greater impact by focusing its ire on the social and economic problems underlying these cases than on what’s happening at the Supreme Court.
The case that attracted the most attention was a challenge to the affirmative-action practices used by Harvard University and the University of North Carolina. The Supreme Court ruled that those institutions’ policies were unconstitutional and discriminatory, effectively ending the ability of colleges and universities to consider race in admissions decisions.
While colleges that use such procedures will now have to revise them, relatively few students are likely to be affected since only a tiny share of colleges and universities — about 100 selective schools, according to the New York Times — consider race when choosing among applicants.
What’s more, the Supreme Court’s decision does not require these colleges to abandon their efforts to achieve racial diversity, but only to find other ways of doing so besides counting by race. It even suggested one method — an essay prompt that would encourage students to discuss how racial discrimination had affected them — and many colleges are busily at work devising other innovative approaches.
More on Affirmative Action
This leaves an obvious opening for philanthropic support. Some grant makers, such as Bloomberg Philanthropies and the Jack Kent Cooke Foundation, are already working with colleges and universities to develop race-neutral admissions policies focused on talent and socioeconomic status. Lawyers for Civil Rights, a Boston nonprofit, recently filed a suit challenging what some view as another form of discrimination — Harvard’s use of legacy admissions.
Efforts to eliminate the reliance on standardized tests — once promoted by philanthropy, but now often viewed as putting people of color at a disadvantage — are far along, with as many as 1,700 colleges claiming to use more holistic admissions policies. But colleges and universities will need to be careful to avoid introducing impermissible criteria, such as race or religion, into their more flexible ways of recruiting and screening applicants.
In the short run, the Supreme Court’s ruling will undoubtedly cause the enrollment of Black students at Harvard and other elite institutions to fall, although that of other minorities, especially Asians, may rise. But if these colleges can develop legally acceptable ways of admitting Black students, the consequences could be minimized. Moreover, other good institutions, such as historically Black colleges and universities, may see an influx of applications from students who might have gone to the Ivy League or other so-called elite schools if racial preferences were still permitted.
Support HBCUs
Given this reality, the Supreme Court ruling should push more philanthropies to give to HBCUs. While some notable foundation initiatives aim to support these schools, such as an effort launched in 2019 by the Carnegie Corporation, the Andrew Mellon Foundation, and the Rockefeller Foundation, overall funding for HBCUs remains low. A recent survey by the philanthropy research group Candid revealed that Ivy League colleges received 178 times more foundation support than HBCUs from 2002 to 2019.
The ultimate result of the loan-forgiveness decision is also likely to be smaller than many fear. The plan proposed by the Biden administration would have affected 43 million Americans with student-loan debts. In rejecting it, the Supreme Court majority concluded that the administration had improperly sought to stretch a post-9/11 law allowing the federal government to “waive or modify” loan repayments in the event of “a war or other military operation or national emergency.” Instead, according to the Court, the administration should have sought explicit congressional approval or used the procedures specified by the Higher Education Act to change the terms of the student-loan program.
Along with slowing down the repayment schedule, the White House now plans to take the latter approach. The Supreme Court decision “has closed one path,” President Biden said. “Now we’re going to pursue another.” Last week, the Biden administration took the first step on that new path by announcing $39 billion in loan forgiveness for more than 800,000 students, addressing what Education Secretary Miguel Cardona called “administrative failures.”
Make College Affordable
Where this will lead remains to be seen, but in the meantime, philanthropy should double down on efforts to make higher education more affordable. Models for such efforts include the National College Attainment Network, which encompasses a variety of programs aimed at making higher education less costly. It’s supported by the Bill & Melinda Gates, Kresge, and Lumina foundations, among others. The group’s research has found that less than one-quarter of public four-year universities and 40 percent of public community colleges are affordable for low-income students.
Other groups are focused on pushing new ways of financing higher education. Stand Together, founded by Charles Koch, has partnered with Better Future Forward to develop an income-share agreement that links loan repayments to earnings. And Purdue University, with contributions from individual donors, has created a “Degree in 3” program, aimed at reducing the time and cost, but not the quality, of an undergraduate education. Regardless of how the loan-forgiveness issue plays out, addressing the cost, quality, and alternative routes for postsecondary education should remain a critical concern for philanthropy.
Gay Rights
The impact of the same-sex-couple case is especially hard to predict. In allowing the Christian owner of a website-design business in Colorado to refuse to serve a gay couple, the Supreme Court majority ruled that the Constitution’s free-speech protections prevented the state from requiring the designer to express views — in this instance, on gay marriage — with which she disagreed.
It’s unclear what the ultimate fallout from this ruling will be, given the relatively narrow nature of the decision, which rested on the notion that web design is an art form covered by the Constitution’s First Amendment. In the meantime, there are bigger issues for philanthropy to concern itself with here. As a recent Lilly Family School of Philanthropy survey showed, groups focused primarily on LGBTQ issues receive just 0.13 percent of charitable giving. That presents a much more significant problem than the inability to buy the services of a web designer.
Philanthropy should not lose sight of the underlying issues in all these cases. Although Justices Clarence Thomas and Ketanji Brown Jackson had opposing views on what the Constitution requires, they agreed that the education of Black students must be improved, a task foundations have been addressing for a century. Ending racial preferences in higher education, and potentially elsewhere, makes that effort all the more urgent.
The Supreme Court’s decisions last month undoubtedly disappointed and infuriated many people in the nonprofit world and beyond. But philanthropy should not let its reaction shape its response to longstanding problems of race, education, and discrimination that are the real obstacles to equal opportunity.
