Joshua Mintz, Vice President, General Counsel, and Secretary, discusses legal implications for nonprofits and philanthropy pursuing racial equity after the Supreme Court rulings on affirmative action.
The months leading up to the recent United States Supreme Court ruling eliminating the use of race as a part of a holistic process for college admissions sparked a frenzy of commentary—some suggesting "doom and gloom" beyond university admissions and others suggesting these cases are isolated and limited in scope.
The decision was not surprising to many observers of the Court or students of history. Nevertheless, it was another body blow considering the efforts by so many to advance racial equity following the racial reckoning sparked by the murder of George Floyd and the killings of so many Black Americans, the rise of hate crimes against Asian Americans, Latinos, and other people of color, and the increasing number of antisemitic and anti-Muslim incidents.
Two Steps Forward, One Step Back
People who have studied the civil rights movement, particularly those who lived through it, often reference Dr. Martin Luther King Jr.’s re-quote of abolitionist minister Theodore Parker to categorize the jagged path of history: “The moral arc of the universe is long, but it bends toward justice.”
The quest for racial justice in the United States has never been a straight line—in society, in Congress, state legislatures, and in law. Decisions by the Supreme Court reflect that checkered history from the many opinions thwarting efforts to achieve racial equality (Dred Scott v. Sandford (1857), the Civil Rights Cases in 1867, the Slaughterhouse cases in 1873, Plessy v. Ferguson (1896), Shelby County v. Holder (2013), and many more) to cases seeming to advance it, such as Brown v. Board of Education (1952) and its progeny, NAACP v. Alabama (1958), Grutter v. Bollinger (2003), Fisher v. University of Texas (2016) , and most recently Milligan v. Allen (2023).
Progress has always been marred by setbacks, but those committed to social and racial justice are not dissuaded from continuing the quest. And we will not be dissuaded now. It is critical to note that Dr. King’s affirmation should not be read to suggest that justice is inevitable and that good always triumphs. It requires determination and hard work.
Consequently, despite these recent decisions, we at the MacArthur Foundation will continue to work to “bend the moral arc toward justice” while pursuing our mission of helping to build a more just, verdant, and peaceful world.
Why the Decisions Matter in Philanthropy and What’s Next
There has been much speculation what the rulings could portend for nonprofits and philanthropy, ranging from a concern that the ruling would chill the willingness of foundations to fund racial equity organizations or projects to suggestions by some to “bring on the lawsuits.” That latter approach is not a proposition that I or most general counsels would espouse, but the sentiments underlying it are a passion for justice.
From my perspective as MacArthur’s General Counsel for almost thirty years, I offer the following observations:
- We remain committed to continuing to support our grantees' work towards racial justice within the bounds of the law.
- The full extent of the impact of the rulings outside the higher education context will not be fully known for many years as cases wind their way through the courts, and the Supreme Court will likely consider other issues left undecided by its rulings.
- There are heavily funded nonprofit groups and others that believe the use of race in any context should be forbidden (rooted in the view that the Constitution and laws should be “colorblind”). These groups will be emboldened by the result and the sweeping language used in the majority opinion and will likely seek to further the impact through selective lawsuits. That is not fear mongering but reality.
- Many foundations were aware of the challenges posed by various anti-discrimination laws well before the recent decision and had instituted steps and procedures to ensure that the critical work to build a multiracial democracy can continue within the law. That work should continue as it may need to be modified by the decision and subsequent cases.
- MacArthur developed our own methodology and approach which, among other things, involves engaging with our grantees to better understand their approach and to work together to ensure what we are supporting is legal. We will continue to do so, with whatever modifications, are warranted by the opinion.
- Organizations and foundations should examine their approach and language used in approaches to racial equity to match the legal landscape as enunciated and stay focused on the aspirational goal of racial equity.
- Many smaller nonprofit organizations have historically lacked the necessary resources to fully navigate the legal context and to pursue their critical missions with an understanding of the opportunities and risks of their approach.
- Boards of foundations and nonprofit organizations have the fiduciary responsibility to understand the legal context, the risks, and how best to achieve their mission. This is not a matter that should be delegated to individual program officers or others.
- There is a diverse, knowledgeable, and talented group of foundation general counsels who are working together, with outside counsel and other groups, to help develop resources for our respective grantees to assess the legal context and provide assistance, so they can build programs on sound principles of the law. Additional resources will be forthcoming, and this page will link to those resources.
- Thanks to the leadership of foundation presidents, affinity organizations, civil rights organizations, and many others, the field has come together to provide additional resources to help grantees and nonprofit organizations weather this latest storm.
The End—Or Just the Beginning
I am deeply aware that it may be easier for me as a White man to espouse a sense of optimism among the pessimistic outlook from the decision and the reality of our country, where in many states efforts to avoid the teaching of history of discrimination are taking root. I am inspired, however, by MacArthur grantees, our Board members, President, and Staff who remain committed to achieving justice.
A recent visit of the Board and senior Staff of MacArthur to the Legacy Museum and National Memorial for Peace and Justice in Montgomery, Alabama reaffirmed that perseverance and hard work can propel the march toward racial justice, despite obstacles. I am confident MacArthur will continue to pursue our mission with vigor and an appreciation of the opportunities and challenges still ahead. Let the hard work begin anew.