Upholding the Mission: Nonprofits’ Response to the SFFA Affirmative Action Ruling
On June 29, 2023, the U.S. Supreme Court held in Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. President and Fellows of Harvard College (SFFA cases) that the Harvard and UNC affirmative action admissions programs violate the Equal Protection Clause of the 14th Amendment. This troubling decision deals a tremendous blow to institutions of higher education dedicated to ensuring equal access to education and that their incoming classes are inclusive and diverse. And in its wake, questions have arisen regarding how nonprofits can continue to demonstrate their commitment to creating a society that provides everyone an opportunity to succeed and thrive, while simultaneously addressing the history of racial discrimination and systemic barriers that have significantly disadvantaged many of our fellow citizens.
Despite the deeply troubling conclusion of the SFFA cases, nonprofits can and should continue to work towards a society that values and embraces racial diversity in our communities, workplaces, and elsewhere. And foundations should not shy away from funding their efforts. As Justices Sotomayor, Kagan, and Jackson noted in their dissent, “society’s progress toward equality cannot be permanently halted.” “The pursuit of racial diversity will go on,” and at Bolder Advocacy we believe that foundations and nonprofits have an important role to play in promoting the creation of an equitable and just society.
Make no mistake, the holding in the SFFA cases is narrow and applies specifically to college admissions procedures. While there is certainly the possibility for future litigation that could impact other entities and programs, the decision does not require the dissolution of nonprofits’ diversity programs, nor does it prohibit the support of organizations working to impact public policy and amplify the voices of historically marginalized communities.
At Bolder Advocacy, we will continue to embrace diversity and inclusion.
We will continue to support nonprofits seeking to dismantle unjust systems.
We will continue to fight.
And we hope you will too.
Here are a few resources to help your nonprofit or foundation navigate the post-SFFA world:
- Advancing Equal Employment Opportunity: Putting the Affirmative Action College Admissions Cases in Context (a pre-decision legal analysis by AFJ Member, Lawyers’ Committee for Civil Rights Under Law)
- Philanthropic Joint Statement in Response to the Supreme Court’s Decision in ‘Students for Fair Admissions’ Cases
- Statement from EEOC Chair Charlotte A. Burrows on Supreme Court Ruling on College Affirmative Action Programs