Supreme Court Ruling on Affirmative Action: Exploring Potential Implications & Opportunities for Nonprofits
October 11, 2023
Recent legal actions against Massachusetts Growth Capital Corporation and the Fearless Fund in Georgia show that the U.S. Supreme Court’s 2023 decision striking down affirmative action in college admissions has begun to have negative ripple effects across multiple sectors. Even without lawsuits, the Court’s ruling in Students for Fair Admissions v. Harvard (600 U.S. 181 (2023)) could be creating a chilling effect not necessarily grounded in the law or reflective of the narrow nature of the ruling itself.
On October 11 the Boston Foundation’s Nonprofit Sector Infrastructure team of the Amplifying Community Leadership pathway welcomed over 200 nonprofit leaders, funders, donors, board members, consultants, and other allies of the nonprofit sector. A forum panel, featuring Malia Lazu (The Lazu Group/ Urban Labs), Iván Espinoza-Madrigal (Lawyers for Civil Rights Boston), Beth Chandler (YW Boston), Carla Reeves (Goulston & Storrs), and moderated by Elaine Ng (TSNE), addressed the potential nonprofit sector-wide consequences of the SCOTUS ruling on inclusive hiring practices, equitable programming, DEI and racial equity work, and more. The discussion panel had three goals.
The first was to determine, as Nonprofit Sector Infrastructure Senior Program Officer Leigh Handschuh put it, “What does this [legal landscape] look like for our sector, and [what would it take] for us, and more specifically philanthropy, not to simply retreat in this moment, but to push further?” This included naming the facts of the Supreme Court’s ruling on affirmative action and outlining its limitations. The second goal was to identify tangible steps nonprofits can take to continue their work in light of the SCOTUS decision. These may involve understanding your organization’s legal risks, continuing, and even doubling down on racial equity efforts, and bringing leaders together to continue to share and shape how the sector responds. The third goal was to identify lingering questions and needs in the nonprofit sector concerning the SCOTUS ruling that philanthropy could help address, such as deploying resources and funds. Offering opening remarks, Dr. Lee Pelton invited the panelists and audience into the conversation, stating that “now is not the time for us to hide our eyes... but rather seize this moment as an opportunity to reclaim and reassert the value of acting affirmatively.”
Iván Espinoza-Madrigal helped set the stage for this discussion, highlighting how “alarmist and sensationalist headlines have kept talking about how affirmative action is dead, affirmative action is overruled,” which he considers a mischaracterization of the SCOTUS decision. He reaffirms that these misinformation campaigns are “intended to create a chilling effect,” and are not supported by the decision itself. The U.S. Supreme Court determined that Harvard University and the University of North Carolina’s programs violated the Equal Protection Clause of the Fourteenth Amendment. Throughout the discussion, panelists pointed out what the SCOTUS decision does not do, including:
Recent resources and Insights from the field:
- The Magic Kingdom How the Supreme Court got it wrong in its landmark affirmative action ruling
- Beth’s Corner: Looking Ahead After the SCOTUS Affirmative Action Decision
- Why Leaders Should Maintain Commitments to DE&I Despite Political Uncertainty
- Ban on Affirmative Action: Implications, Risks, and Strategies for the Charitable Sector
- Nonprofit Radio: Supreme Court Affirmative Action Case and Implications for Nonprofits
- The ruling does not absolutely overrule affirmative action, as it only addresses the use of race as a stand-alone factor in college admissions policies,
- The ruling does not prohibit universities from taking into consideration how race played a factor in an applicant’s life if it is tied to determining the person’s quality of character and ability to contribute to the university,
- The ruling does not stop organizations’ Diversity, Equity, Inclusion, and Belonging initiatives,
- The ruling did not change the legal standards in the workplace regarding discrimination on the basis of race, color, national origin, or other protected classes,
- And the ruling does not affect organizations’ mission, programs, and initiatives that seek to impact particular communities.
Identifying these nuances of the SCOTUS ruling may help address the nonprofit sector’s confusion as organizations continue to serve their communities. Panelists also discussed the following steps nonprofits could take to be reassured in their work, continue their racial equity efforts, and rally collective power as leaders in the sector.
Understand the legal risks of your programs and initiatives by seeking legal counsel from experts in this field. Carla Reeves recommended conducting internal audits. Strategic modifications to program or initiative descriptions may allow organizations to continue working to address issues in their communities. Espinoza-Madrigal suggested that it is good practice to seek out a second legal opinion, especially one familiar with civil rights or employment law, before compromising one’s mission and values. Elaine Ng urged the audience, “Stay the course and don’t be afraid.”
Continue advancing racial equity work throughout the nonprofit sector. In reflecting on the SCOTUS decision’s potential impact on her organization, Beth Chandler argued that the ruling had no effect on her mission to eliminate racism and empower women, but said it has “forced us “to get better at doing the [racial equity] work and integrating it into everything that we do.” The business imperative to diversify organization staff and board rooms creates the right conditions to double down on racial equity efforts. As Malia Lazu observed, “Businesses are realizing that diversity is profitable.” Espinoza-Madrigal added that scaling back racial equity programs in an organization may foster toxic, or even hostile, work environments. Promoting racial equity programs and initiatives will strengthen the nonprofit sector and its leaders.
Mobilize the collective power of leaders in the nonprofit sector and beyond. Reeves pointed out that years of data show that affirmative action programs and initiatives have benefitted, not just people of color, but also White women both in higher education and the workplace. She goes on to name her concern that overlooking the role of gender in this conversation could leave out people who may not see themselves as directly impacted by this decision, thus omitting powerful advocates and resources from this fight. Lazu, warning of complacency in civil rights struggles, highlighted the need to develop resources to train and mobilize leaders to address threats to the advancement of racial equity movements.
Panelists’ recommendations provided a pathway for nonprofit organizations and their leaders to continue working without fear of legal action against them. Audience survey feedback echoed many of the panel’s points and identified the need for more tailored convenings like these, written resources for nonprofits, and more pro-bono legal supports. We look forward to collaborating sector-wide on developing tools and convenings in the months and years ahead to provide tangible resources to the Greater Boston nonprofit community.
We know that the nonprofit sector’s collective action to counter systemic inequities will support its leaders as they address concerns in their own communities. The positive change they drive reverberates throughout Greater Boston, even in the face of a changing legal landscape.