In a long-anticipated decision, the U.S. Supreme Court ruled Thursday against university policies that take race into account for admissions, in two cases that some legal experts say will create roadblocks for foundations and charities that work to promote diversity in their grant-making and hiring decisions.
In 6-2 and 6-3 decisions, the court ruled in two cases, Students for Fair Admissions v. Harvard and a separate suit the group filed against University of North Carolina, that both universities’ admissions policies violate the equal-protection clause of the 14th Amendment.
- Following Court Ruling, Foundation Officials Urge Sharing Power With Grantees
- What Would Happen to Fundraising if Legacy Admissions Went Away Next?
- Philanthropy Should Redirect Anger at the Supreme Court Toward Solving Underlying Social Problems
- Hiring for Diversity? 10 Takeaways From the Supreme Court’s Affirmative-Action Ruling
- Philanthropy Could Learn a Lot About Diversity by Studying What Sports Teams Are Doing Right
- What Nonprofit and Foundation Leaders Are Saying About the Supreme Court’s Affirmative-Action Ruling
- Supreme Court Could Set Back Philanthropy’s Racial-Diversity Efforts With Affirmative-Action Ruling
“Eliminating racial discrimination means eliminating all of it,” wrote Chief Justice John Roberts in the majority decision.
He continued, writing that the colleges’ admissions programs “fail to articulate a meaningful connection between the means they employ and the goals they pursue. To achieve the educational benefits of diversity, respondents measure the racial composition of their classes using racial categories that are plainly overbroad ... arbitrary or undefined ... or underinclusive.”
While the case deals directly with the role race can play in accepting applicants to colleges, some foundations are bracing for lawsuits challenging their diversity efforts.
To that end, the Hewlett Foundation commissioned a study this spring that laid out three possibilities grant makers face, including that the justice would rule that:
- Race could not be used as a “plus-factor” in college admissions but that race-neutral proxies for race, such as family income, could be used.
- Race-neutral factors used as a stand-in for race could be used in admissions decisions.
- No efforts to achieve racial diversity are legal under the Constitution.
In his majority opinion, Justice Roberts took the second approach, which would prohibit direct consideration of race in accepting an applicant but would allow an institution to consider how an applicant’s race has affected an applicant’s life “so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.”
The Hewlett-commissioned memo warned nonprofits that the ruling would place their diversity efforts in legal jeopardy.
“We expect that in the near future, the decision will be applied in a manner that substantially alters the existing legal framework for discrimination claims more broadly,” the memo states.
The Hewlett Foundation, which in 2022 pledged $150 million to racial-justice efforts over 10 years, said it remains steadfast in its commitment. The foundation said grantees could count on its support as “we navigate these new waters.” (Hewlett is a financial supporter of the Chronicle.)
“Today’s results are the culmination of a 40-year campaign by a well-funded conservative legal movement to impede redressing the ongoing costs of centuries of racial discrimination, costs that continue to plague our nation today,” the foundation said in a statement.
The decision could curtail much of the work nonprofits do to promote diversity, wrote Akilah Watkins, president of nonprofit and philanthropy membership group Independent Sector, in an email.
“It could touch how we hire, build our boards, make funding decisions, and design and deliver our programs,” she said.
Watkins said nonprofits need to study the full implications of the ruling before making any changes in their work.
Kathleen Enright, president of the Council on Foundations, said she was disappointed by the court’s ruling. In an email, she said the council will work to help its members support diversity “within the confines of the law.”
“Because of America’s history of racial inequities, among other forms of oppression, supporting racial diversity has been a key part of philanthropy’s work toward the greater good,” she wrote.
Conservative Philanthropy’s View
Conservative philanthropy observers cheered the decision and suggested its impact on philanthropy will be lasting.
The decision will trigger a “generation’s worth of litigation,” which will involve philanthropy, predicted Michael Hartmann, senior fellow at the Capital Research Center, a conservative think tank that focuses on philanthropy. Hartmann said the ruling is a sign that the judiciary no longer treats higher education with special deference. Philanthropy, he said, should take notice.
“Privileged establishment philanthropy should probably be concerned about the state of judicial and other kinds of deference that it’s historically been accorded, too,” he wrote in an email.
Devon Westhill, president and general counsel of the Center for Equal Opportunity, an advocacy group that promotes “colorblind equal opportunity” and filed a friend of the court brief in support of the student group’s position, called the decision historic. He said the majority opinion puts “teeth” back into the 14th Amendment of the U.S. Constitution, which gives all citizens equal protection under the law.
Westhill pointed to a concurring opinion by Justice Neil Gorsuch that suggests courts should use Thursday’s ruling to “correct course” in its treatment of Title VI of the 1964 Civil Rights Act, which prohibits discrimination on the basis of race, color, or national origin in any program that receives federal assistance. Gorsuch’s opinion, Westhill wrote in an email, suggests the ripple effect of the decision will be felt well beyond the university admissions process.
“Unequivocally, the government cannot discriminate against you because of your race,” he said.
Foundations Respond
In response to the ruling, more than 52 foundations and organizations that represent grant makers issued a joint statement condemning the ruling and vowing to do all they can to help colleges deal with the impact of the Court’s action. Among the grant makers signing the statement: the Robert Wood Johnson Foundation, the Ford Foundation, the John D. and Catherine T. MacArthur Foundation, the Mellon Foundation, the Raikes Foundation and Omidyar Network. (MacArthur and Ford are financial supporters of the Chronicle.)
“The ruling threatens to return this nation to a time when education and opportunity were reserved for a privileged class,” the statement said. “It endangers 60 years of multiracial movements to challenge our nation to live up to the ideals enshrined in our founding documents.
“Universities and colleges and those organizations supporting them deserve the resources and support to continue their critical mission,” it said. “They need our resolve, too. Philanthropies are vital partners in our nation’s progress. We will remain steadfast in our collective mission to create a more equitable nation within the bounds of the law.”
And the statement pledged: “We will not waver in our commitment to those making the nation’s high ideals a reality for all communities and all people.”
Another public pledge from philanthropy came Friday in an essay by Ford Foundation president, Darren Walker in the New York Times. “For our part in philanthropy, we cannot be dissuaded or deterred,” he wrote. “We must remain steadfast in our missions to narrow inequalities, to defend human dignity and human rights and to promote democratic values and institutions at home and abroad.”
Walker also noted the impact affirmative action had on his own life, noting that growing up poor in Texas, he was a beneficiary of Head Start and entrance to the University of Texas. And, he wrote: “I was a beneficiary because the firms and foundations that shaped my career embraced this obligation, to make right what their predecessors had done wrong, to open doors they had closed.”
Chilling Effect Feared
Gene Takagi, a lawyer who advised nonprofits, called the decision “disappointing” but expected.
While the opinion is open to interpretation, nonprofits will have to keep careful watch on their diversity efforts, he suggested. The end result, he feared, will be that charities and philanthropies will hold back.
“There’s room for nonprofit foundations and charities to push boundaries, but the opinion will chill the equity efforts of many organizations,” he wrote in an email.
Fears that the decision will place diversity efforts at foundations in peril are overblown, said Marita Etcubañez, vice president of strategic initiatives at Asian Americans Advancing Justice, an Asian American civil-rights organization, who spoke before the decision was announced.
Following big Supreme Court decisions, the winning side always tries to expand the importance of their win, she said. She argued that the organizations that pursued the ban on affirmative action were driven by a broader desire to establish race-blind standards well beyond university admissions.
Philanthropy leaders, she said, should not step back from their efforts to promote diversity, equity, and inclusion out of an “amorphous fear” of litigation following today’s ruling.
“Concerns that this could spill over into corporate America and into philanthropy are misplaced,” she said. “This is only about admissions.”
