Colinvaux on Fearless Fund’s Settlement and The Future of DEI Nonprofits
Colinvaux is on a panel today entitled “The Future of Race-Based Grant Making.” The on-line forum, sponsored by the Chronicle of Philanthropy, is free. It begins at 2:00 pm so there might still be time to register for the one-hour discussion. Colinvaux previewed his thoughts in an op-ed published last week. Here is an excerpt:
Ever since the Supreme Court ruled last year that affirmative action in higher education was unconstitutional, a tidal wave of legal attacks against diversity, equity, and inclusion programs has swept the country. The targets include government programs for businesses owned by people of color, scholarships based on race and other identities, and diversity fellowship programs at law firms and nonprofits, including at the Smithsonian and the American Association of University Women. So far, the attacks are working. A string of victories by groups opposed to affirmative action have put charities and foundations on the defensive. Some are changing their programs to avoid costly lawsuits; others are settling litigation to avoid court rulings that could create adverse precedents.
A notable defeat for DEI occurred last week when the Fearless Foundation, the charitable arm of the Fearless Fund venture capital firm, agreed to settle its case with the American Alliance for Equal Rights, led by conservative activist Edward Blum, and end its grant program for businesses owned by Black women. The outcome is disappointing and further proof that the tsunami of litigation is having a chilling effect on DEI efforts by nonprofits.
. . .
Should charities and foundations just give up? While the challengers to DEI programs may seem to have the upper hand right now, we’re still in the early days of this battle, and the law is more uncertain than it may appear. The Supreme Court’s affirmative action decision was a case of constitutional law, involving the equal protection clause, which applies to government entities or to private organizations such as universities that receive federal financial assistance. Last summer’s ruling against admission’s policies at Harvard University and the University of North Carolina involved access to education, not scholarships or private charitable assistance.
The Supreme Court has never held, for example, that private charitable efforts at affirmative action are wrong, or illegal. Decades of precedent supporting affirmative action efforts by charities remains intact. And even though the Fearless Foundation decided to settle, it bears repeating that the 11th Circuit panel’s approach involved an unprecedented interpretation of a Civil War era civil rights statute that would have extended it to prohibit private charitable conduct. This would deploy the law in a way Congress never intended: to handcuff private efforts to address inequality. This interpretation is neither reasonable nor inevitable.
As more courts start to understand the stakes — that philanthropic freedom is under attack — the outcomes of some cases may start to change. Because what is happening right now is actually pretty radical. Federal and state courts, and state legislatures, are suddenly in the business of telling charities what they can and cannot do and whom they may and may not fund. And they are using anti-discrimination language to do it, creating a false equivalence between invidious and remedial forms of discrimination.
. . .
Preach.
darryll k. jones