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.

Read the full article about foundations' racial justice goals by Joshua Mintz at The Center for Effective Philanthropy.